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Lawyers for Clive Macholowe and Yusuf Sanudi on Wednesday rejected state witness Rice Mafosha who was expected to testify against the accused persons in a murder case fearing that his evidence might prejudice the jury and the court.
Mafosha was the officer in charge at Blantyre police station when the armed robbery and murder of a police officer at Blantyre district education offices took place on 25 November 1997.
Macholowe’s lawyer Michael Mtambo said Mafosha’s inclusion of an armed robbery case in Thyolo in his written evidence was not relevant in the present case and that the facts taken from that case would prejudice both the court and the jury.
Macholowe was convicted of robbing Thyolo National Bank branch of K800,000 ($7,404) on 27 November 1997 and was sentenced to 10 years IHL. He was later pardoned by former president Bakili Muluzi last April before the decision was reversed by government after Muluzi left office in May 2004..
Mtambo argued that the Thyolo incident and the murder at Blantyre district education offices are different and as such facts of one case must not be used as evidence for another.
“Matters of previous convictions are not supposed to be brought to the court at this time as they may prejudice the court and the jury against the accused. Let the accused be tried in isolation of his earlier conviction because these are two different matters,” said Mtambo.
He also argued that Mafosha’s statement could not be trusted because it indicated that the R4 riffle that was allegedly robbed from the deceased police officer was used in the Thyolo robbery.
Mtambo said this contradicts Mafosha’s earlier statement in his written testimony that the 29 rounds of ammunition that the deceased police officer had were found intact.
“Surely if the ammunition that was robbed from the deceased was used in the Thyolo robbery, there could have been one or two bullets less. I believe that this is a deliberate act to mislead and to prejudice the jury,” said Mtambo
Lawyer for Yusuf Sanudi, Ranneck Matemba, also said Mafosha’s evidence could not be used against Sanudi because his client was not tried or convicted of the armed robbery that took place in Thyolo.
But Director of Public Prosecution (DPP) Ishmael Wadi said the defence lawyers had flouted legal procedures which require objections to be raised seven days before commencement of trial.
Wadi also cited section 171 subsection 2, paragraph (a) of the Criminal Code and said a fact from another case could still be used as evidence if it is relevant to the matter under trial.
“The guns used in the Thyolo robbery are the same. The cases were investigated as twin cases. One case on the 25th of November, the other 27, in a similar fashion, masked men and conducting an armed robbery,” said Wadi.
“There is overlapping of evidence here. Pointers leading to the arrest of the accused are very crucial because the robbers in both incidents were masked and nobody saw them. It is only fair that the detective be allowed to explain how he uncovered the pointers,” said Wadi.
Another state lawyer Zione Ntaba said the defence counsel could not reject the witness’s testimony because the R4 assault rifle in question had been accepted by both the court and the defence lawyers as evidence.
The case was adjourned to Thursday when the presiding judge Chiudza Banda is expected to make his ruling on the objections.
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