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    Dalitso Mzyece
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    MELODY CHIBUYE V THE PEOPLE

    Uploaded by

    Dalitso Mzyece

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
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    of 3

    MELODY CHIBUYE v THE PEOPLE (1970) Z.R. 28 (H.C.

    HIGH COURT

    CHOMBA, AG.J.

    16TH OCTOBER, 1970

    (H.N.A.218/1970)

    Flynote

    Evidence - Accused's previous bad character - When to admit - Criminal Procedure Code, s. 148 (f) -
    Discretion of court to exclude such evidence where its prejudicial effect outweighs its evidential value.28

    Headnote

    The appellant was convicted of theft and sentenced to eighteen months' imprisonment with hard labour.
    Under cross-examination the appellant was asked questions which elicited the facts that during the two
    months preceding his trial he had been in prison and that he had been released from prison only two days
    prior to his arrest in connection with the present case, that he had previously been in gaol for theft, and
    a denial that he was a habitual criminal. The appellant appealed against conviction.

    Held:

    (i) Under s. 148 (f) of the Criminal Procedure Code questions relating to the accused's previous
    committals and convictions could only be admitted in evidence where:

    (i) it can be proved that his guilt in those offences show that he is guilty of the present offences;

    (ii) where the good character of the prosecution witness has been put in issue; and

    (iii) where the accused wants to establish his good character.

    (ii) It was wrong for the prosecutor to cross-examine the appellant as to his character since the
    prejudicial effect of the evidence extracted outweighed its evidential value. The trial magistrate ought to
    have refused the cross-examination or to have informed the appellant of his right to refuse to answer
    those questions.
    Case referred to:

    (1) Harris v Director of Public Prosecutions, [1952] A.C. 694; 36 Cr. App. R. 39; [1952] 1 All E.R. 1044;
    116 J.P. 248.

    Legislation referred to:

    Criminal Procedure Code, 1965 (Cap. 7), s. 148 (f).

    For the appellant: In person.

    For the respondent: D.M. Lewanika, Senior State Advocate.

    Judgment

    CHOMBA, AG.J.: The appellant was charged with the theft from ZCBC shop, Kitwe of one underpant valued
    at K1.99. He was sentenced to eighteen months' imprisonment with hard labour. He now appeals against
    conviction only.

    I find it unnecessary to review his grounds of appeal because I find no merit in them. Despite this however,
    I feel that the conviction here cannot be sustained.

    The appellant, like the prosecution witnesses, gave evidence on oath. The case before the trial court fell
    to be resolved on pure fact, no points of law having been involved. While the prosecution witnesses,
    particularly the security guard who claimed to have seen the appellant pilfer from the29shop, strove to
    satisfy the court of the appellant's guilt, appellant strenuously disputed what they said. The main issue
    before the magistrate so far as the solution of the case was concerned was that of credibility. Indeed in
    his judgment the magistrate said that he believed the testimony against the appellant and rejected the
    evidence of the appellant.

    I notice from the record of proceedings that under cross-examination the appellant was asked questions
    which elicited the facts that during the two months preceding his trial he had been in prison and that he
    had been released from prison only two days prior to his arrest in connection with the present case; that
    he had previously been in gaol for theft; and a denial that he was a habitual criminal.
    By s. 148 (f) of the Criminal Procedure Code - I shall refer only to those parts of it that are relevant to the
    present case - a testifying accused shall not be asked, and if he is asked, he shall not be required to answer,
    questions tending; to prove that he has committed or been convicted of any offences other than the
    offence wherewith he is charged unless (i) proof that he has been guilty of such other offences tends to
    show that himself or through his advocate impugned, by cross-examination or in his evidence, the good
    character of prosecution witnesses or he has in a similar manner sought to establish his own good
    character. Moreover, even where evidence of the accused's bad character is admissible, the court has a
    discretion to exclude it if its prejudicial effect outweighs its probative value: Harris v Director of Public
    Prosecutions (1).

    In the instant case the record of proceedings does not disclose the fact that the appellant either gave
    evidence of his own good character or that he attacked the good character of prosecution witnesses so
    as to lay himself open to cross-examination as to his own bad character. Again the damaging character
    evidence he gave of himself can hardly be said to have had the tendency of showing that he was guilty of
    the present case. The evidence of bad character elicited from the appellant might have been helpful to
    the prosecution if it had been aimed at establishing similar facts or to show that the modus operandi
    employed in committing the past offences was the same as that used in perpetrating the offence
    wherewith he was charged. As I have observed earlier that evidence had no such tendency. In the result I
    come to the conclusion that it was wrong to allow the Public Prosecutor to cross-examine the appellant
    as to his (appellant's) character because the prejudicial effect of the evidence thus extracted from the
    appellant outweighed its evidential value. The trial magistrate ought to have stopped that line of cross-
    examination, or to have informed the appellant of his right to refuse to answer questions in that vein.

    In dealing with the question of credibility, the magistrate did not, explicitly or otherwise, state that the
    premature disclosure of the accused's bad character, namely his previous convictions, did not influence
    his judgment to the detriment of the appellant. It may well be that in the absence of such detrimental
    evidence vis-a-vis the accused, the magistrate might have either believed the appellant or might have
    entertained a30 reasonable doubt. For this reason I cannot, uphold his verdict. I allow the appeal and
    quash the conviction. The sentence is set aside and I order the immediate release of the appellant

    Appeal allowed

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