IN
THE HIGH COURT OF SWAZILAND
Crim.
Appeal No. 18/94
In
the matter between:
NORMAN
NXUMALO
Vs
THE
KING
CORAM :
Hull, C.J.
FOR
APPELLANT In person
FOR
CROWN Mr. Nduma
Judgment
(6/7/94)
The
appellant was convicted by the Principal Magistrate, sitting Manzini,
on 29th January 1992 on a charge of armed robbery. He had a previous
conviction, in 1981, for house breaking and theft and another, in
1983, for murder.
The
Principal Magistrate sentenced him to 10 years imprisonment on the
charge of robbery. He filed a notice of leave to appeal, out of time,
dated 8th July 1992. There appears to have been a breakdown in the
system in having the application brought forward. Eventually, he
applied for bail pending appeal. As a result of that, I think, the
matter eventually come before this court.
The
delay is very regrettable. However the Crown has not objected to the
application for leave to appeal out of time, which the court has
treated as having been granted.
Except
on one point, which warrants comment, there is clearly no merit in
the appeal.
2
The
appellant, with an accomplice who escaped, broke into a bedroom in
which two women were sleeping in a house. The incident happened at
about 1.30 a.m. in the morning. The intruders turned on the light and
forced the women into submission, taking several things and then
escaping by driving away in the occupant's car.
Each
of the women said that she recognised the accused as one of the
robbers. They clearly had an opportunity to do so at the time because
the light was on and because, eventually, the men forced them to go
out to the car with them. Luckily, outside, the women were able to
escape. They were not challenged strenuously in cross-examination as
to their identification of the accused.
In
any event, at about 6 a.m., the women having already raised the
alarm, a police sergeant on duty saw the appellant and a man known to
the officer as Cyril Simelane in the stolen car. The appellant was
driving it. The police gave chase and the appellant tried to escape.
Eventually he and his companion abandoned the car and ran off.
Simelane escaped, but the appellant was caught. One of the stolen
items was found in the car, and afterwards the appellant led the
police to three houses, including his own, at each of which some of
the stolen items were recovered.
So
the Crown's case was clearly a very strong one. It is true that each
of the women saw the accused at a police station after his arrest
when they were called to see the property recovered. Nevertheless, it
was not put to them in cross-examination that they were lying or
mistaken in saying that they recognised him from the bedroom, and in
any case the other evidence for the Crown itself indicates very
strongly that he was one of the robbers.
The
appellant did not give evidence on oath in his defence. He did,
however, make an unsworn statement from the dock. His explanation,
essentially, was that Simelane and another man had come to see him in
the stolen car. They asked him to keep some of the stolen items. Then
he accompanied them to Simelane's place where they left other items.
After that they dropped the third man off. Simelane then complained
that he felt unwell and asked the appellant to take the wheel. When
3
he
realised that the police were following the car, he made off because
they had been drinking and he was not carrying his driving licence.
The police had assaulted him after arresting him, and he himself had
not led them to any of the stolen property. He had been unaware that
the car or the other items had been stolen.
It
was never put to the police officer that the appellant had been
assaulted.
The
Principal Magistrate rejected the explanation of the appellant, as it
was plainly open to him to do so.
One
of the grounds of appeal was that the Principal Magistrate did not
record all of the appellant's evidence, that he demonstrated
hostility towards the appellant, and that he did not give him the
opportunity to make submissions in mitigation. The appellant did not
seek to explain, during the hearing of the appeal, in what respects
his unsworn statement was incomplete or the nature of the Principal
Magistrate's alleged bias. As it is set out. in the Court's record,
the unsworn statement by the appellant appears to be coherent,
logical and complete. The assertions contained in it appear to be
sufficient to constitute a comprehensive answer to the charge -
always assuming of course, that the Principal Magistrate found it
believable, which in fact he did not.
The
record shows expressly that the Principal Magistrate did give the
appellant an opportunity to make submissions in mitigation and that
he recorded those submissions.
There
is nothing in the record that indicates that the Principal Magistrate
curtailed the right of the accused to make a full defence, or that
suggests in any way that the court was biased. In the absence of
clearly specified details as to the way in which the Principal
Magistrate was allegedly hostile towards the appellant or at the
least, in the case of an unrepresented person, some reason for
thinking that this may have been the case, it is wrong in my view for
this court to entertain such an allegation.
4
Another
ground of appeal, however, was that the Principal Magistrate passed
judgment in his office and not in Court. That was how it was put in
the notice seeking leave to appeal. In the written submissions that
he tendered on the appeal, the appellant asserted that the trial, .
and more especially I think that part of it which followed the
closing of the Crown's case, was held in camera because of inadequate
courtroom facilities.
If
that were so, it would be a reason for setting aside the conviction.
The
record does show that at the close of the Crown's case, the trial was
postponed. On the day on which it resumed, the Principal Magistrate
noted on the record the letters "a b c", which obviously
mean "accused before court". It also shows that the rights
of the accused were explained to him and that he made a decision to
make an unsworn statement. There is nothing in the record to indicate
that the proceedings were held in camera, or that they were not held
in open court.
I
thought it nevertheless desirable to obtain an affidavit from the
Principal Magistrate on this point, the appellant having asserted
expressly that the trial had been held in camera.
The
Principal Magistrate has stated that to the best of his knowledge and
belief the case was tried in open court and not in camera, and also
that to the best of his knowledge and recollection the sentence was
imposed in open court.
I
am bound to say that that seems a little more tentative than I would
have expected. I should have thought that if a judicial officer, for
whatever reason, had sat in a trial elsewhere than in a recognised
courtroom, that would be something that he would not forget.
Nevertheless the learned Principal Magistrate is saying, on oath,
that he believed to the best of his recollection that he dealt with
the case in open court. The accused did not challenge his affidavit.
The court will not do so on his behalf of its own initiative, in the
circumstances, I accept the deposition of the Principal Magistrate.
5
The
appeal against conviction is therefore dismissed and the conviction
is affirmed.
As
to the sentence, ten years is undoubtedly a severe punishment. Armed
robbery is, however, a grave and prevalent crime. In this case, the
offence was committed at night in a house. The victims were women,
and they were assaulted in their bedroom. The value of the things
stolen exceeded E50,000. The appellant's previous record, though it
relates to crimes committed several years earlier, is also a relevant
factor.
In
itself the sentence is not manifestly excessive. It is an appropriate
term of imprisonment.
Moreover,
although it is the right of every person accused of a criminal
offence to make his defence, and an accused person will not be
penalised for taking that course, it was on the other hand clearly
not open to the Principal Magistrate to give the appellant some
consideration, in reduction of the term that was otherwise
appropriate, by reason of the fact that he freely admitted his guilt.
The
appeal against sentence, accordingly, is also dismissed and the
sentence is confirmed.
DAVID
HULL
CHIEF
JUSTICE
Ni?os 