SWAZILAND
HIGH COURT
Big-Boy
Bennet Nyawo Appellant
Vs
REX
Crim.
Appeal No. 23/2001
Coram
Sapire,
CJ
Annandale,
J
For
Appellant In Person
For
the Crown Mr, S.S.N. Wamala
JUDGMENT
(02/08/2001)
In
this case having read the evidence and having read what the
Magistrate found I do not see how anybody can fault the Magistrate
for the conclusion to which he came. All the circumstances
connect.you with the offence. The complainant identified you
positively. There may be some questions about Ms identification
because there was no parade and you were already in custody when he
saw you. But Nonhlanhla is positive and she had every opportunity of
seeing you.
Before
I deal with the question of the merits of appeal, it is quite clear
that the sentence has been backdated from an incorrect date. The
Magistrate clearly misdirected himself and had the wrong impression
that you were arrested on the 11th October when in fact the operative
date is 30th September and to that extent the
2
backdating
of the sentence will be corrected to conform with what in fact
appears in the warrant of committal.
As
far as the merits of the case are concerned that is the conviction
and the sentence I have these observations to make.
It
has clearly been established that the hijacking of the vehicle did
take place. You are clearly connected with the hijacking and you are
identified by two witnesses as one of the three persons who were the
assailants and who committed the offence. There is nothing from you
to contradict this and your criticism that appears in the Notice of
Appeal was largely irrelevant. The fact is Nonhlanhla had every
opportunity of identifying you, she happened to be in the vehicle
when the police came there and you happened to be the only other
person in the vicinity and you are identified as the person who
committed the offence.
It
would be very unusual for a court of appeal to override the
Magistrate's decision on fact because as it has often been pointed
out he has every opportunity of observing the witnesses and coming to
a conclusion on the basis of this first hand observation. In this
case it is not even necessary because there is no evidence to
contradict what the crown witnesses have said. The appeal in so far
as conviction is concerned cannot succeed.
As
far as the sentence is concerned, you must consider yourself lucky in
that the Magistrate who had jurisdiction to impose a sentence of 7
years did not even exercise the full extent of the jurisdiction.
The
appeal on sentence cannot succeed.
There
are no misdirection and in our view the sentence is inadequate. I
would therefore dismiss your appeal both on the conviction and on the
sentence save to the extent I have already mentioned.
I
CONCUR
ANNANDALE,
J
