Adrian Siabula The People (Appeal No 159/2021) [2022] ZMCA 122 (24 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Crimina l J u risdi c ti o n) Appeal No 159/2021 BETWEEN: ADRIAN SIABULA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Sharpe-Phiri and Muzenga, JJA ON: 15th June 2022 and 24 th August 2022 For the Appellant : M. Marabesa , Legal Aid Counsel, legal Aid Board For the Respondent : J . Banda, Senior State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases Referred to : 1. The People v . Patel [ 1968) Z. R 167 2. Verfeen Fofana alias Mutambo Wa Mutambo v . The People [1990-1992) Z . R . 167 Legislation referred to: 1 . The Road Traffic Act No . 1 1 of 2002 . l. INTRODUCTION J2 ( ( 1.1. The appellant appeared before the High Court (Mwale, J.), charged with the of fence of Causing Death by Dangerous Driving, contrary to section 161(1) of The Road Traffic Act. 1.2. He admitted the charge and a statement of facts was read out to him. 1.3. In addition, a sketch plan of the accident scene, a post-mortem report and a motor vehicle examiner's report , were produced into court. 1.4. The appellant was convicted following his admission of the case against him, as was presented in the statement of facts. 1 . 5. He was then sentenced to 9 months simple imprisonment , and his driver's licence was suspended for 9 months. 1.6. He has appealed against the sentence. The sole ground of appeal being that there were no aggravating factors to warrant the imposition of a custodial sentence on him. 2. CASE BEFORE THE TRIAL JUDGE J3 ( ( 2.1. The case against the appellant, was that on 15 t h December 2020, at about 18:49 hours, he drove a Volvo Truck Registration Number ACT 7339/ACK 498T, on the Great North Road in Kabwe . When he got to Kohirna Barracks, he lost control and hit o n an oncoming Ro sa minibus, because he was over speeding . 2 . 2. One of the passengers on the bus, sustained i n juries t hat turne d out to be fatal. He was pron ounced d ead o n ar rival at the hospital. A post- mortem exami n ation c onducted on his body, est ablished that h e died fr o m "se vere head injuries ". 2. 3. The stateme nt of f a c ts also indicated that the truck the appellant was d ri ving , wa s not r o ad wo r t h y at t h e time of t h e acc ide n t . 2 . 4. At sente n ci n g , the t ri al j udge fo und tha t app e ll a nt' s dri v i n g of a tru c k tha t was not road wort hy , was a n aggrav a ting fa cto r a nd thus i mpos e d a c u s t odi a l se nt e n ce . J4 3. SUBMISSIONS BY COUNSEL ON THE SENTENCE 3.1. Ms. Marabesa argued that since the appellant was a first offender , who readily admitted the charge and there were no aggravating factors , the trial judge should have fined him and not · imposed a custodial sentence . ( 3.2. In response , Ms. Banda indicated that she does not support the sentence . She conceded t hat there were no aggravating factors to warrant t he imposition of a custodial sentence . 4 . DECISION OF THE COURT 4.1. Before we deal with the issues raised by counsel in connection with the sentence, it is necessary that we comment o n the manner in which the statement of facts was drawn . 4.2 . According to the statement of facts , "The examiner found that the motor vehicle was not road worthy at the time of the accident". The motor vehicle examiner report , which was also presented in evide nce, read as follows, "The motor vehicle was JS practically examined found not to be road worthy at the time of examination". 4.3. It is apparent that the evidence in support of the charge against the appellant was contradictory . In o ne breath it indicated that the motor vehicl e was not road worthy at the time of the acci dent , while in another, it said t he vehicle was f ound not ( to be road worthy after the accident. 4.4. We say evidence , becaus e once a r eport i s produced after the statement of fac ts has been read out , the contents of such a report is evidence . It is of equal standing with the evidence i n the statement of facts . 4 . 5. We wish to take this opportunity to r emind the trial courts that where there is a plea of guilty and reports are produced after the fac ts have been read out , the reports must be scrutinised to ensure that their contents are correctly reflected in the statement of facts . 4.6. Where the two are n ot consistent , the procedure set o u t in the case of The People v. Patel 1 , s h oul d J6 be deployed . The prosecutor mu st be invited to clarify the disparity. Should the prosecutor be adamant, and the court is of t he view that the disparity in the evidence goes to the root o f the charge , a plea of n ot guilty should be retained. 4. 7 .' This is because a convict i on cannot rest on contradictory evidence that goes to the root o f the C charge . 4.8. Notwithstandi ng this anomaly, we find that in this case , the appellant suffered n o prejudi ce . 4 . 9. We turn to address the appeal against the custodia l sentence for a first offender . 4.10. In the c ase of Verfeen Fofana a1ias Mutambo Wa Mutambo2 , it was held were an offence has an option of a fine and the accused person is a first offende r who has readily pleaded guilty , he must be f ined unless there are aggravati ng factors. 4.11. We take the view that in a case of causing death by dangerous driving , the driving of a motor vehicle that is not roadworthy , can be an aggravating factor , if t he defect is the pr in c iple cause of the J7 "accident" that results in dea t h. In additi o n, the accused person should have been aware of the defect when he was driving the mo tor vehi cle. 4 .12. I t be c omes an aggravating factor in t h at , the drive r deliberately takes the risk of dr i ving a motor vehicle with a def ec t that he knows may cause an a c c ident and in turn death . 4 .13. In this case , t h e re is no evi dence of why the motor veh ic l e was n o t roadworthy. I n any case , the facts indicat e t hat the a c tual cau se of the accident was over s p e eding and not b e caus e the mot o r vehicle was not r oad wo r thy . 4 . 14 . That bei ng t h e case , we find that the trial judge erred wh e n he c onclude d tha t t h ere we re aggrav ating facto r s beca u s e the a ppel l a nt d rove a mo t o r vehicl e tha t was n ot r o adwo rt h y , b ecau se the con d i ti o n o f the motor v e h icle was n ot t h e cau se of t h e acc ide nt. 4.15. Th is is n ot to sa y t h ere are n o con s equ e n ces for driv i ng a mo t or v e hi c le that is n ot roadwor th y . We a re aware that t h e re are o f fe n ces i n th e Road Traffic C ( J8 Act , that can appropriately deal with such a situation . 5. VERDICT 5 . 1 . We set aside the sentence of 9 months imprisonment because it is wrong in principle. In its place, we impose a fine of Kl , 500.00, in default of payment, 4 months simple imprisonment . The suspension of the driver's licence for a period of C 9 mo nt hs is upheld. 5.2. The fin e should be paid forthwi t h . C. F . R . Mchenga DEPUTY JUDGE PRESIDENT N . A . Sharpe-Phi r i COURT OF APPEAL JUDGE ························································· K. Muzenga COURT OF APPEAL JUDGE