Mwenya v People (Appeal 120 of 1990) [1991] ZMSC 45 (9 July 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal no. 120 of 1990 HOLDEN AT LUSAKA (Criminal jurisdiction) ANTHONY MWENYA Appellant -v- THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Sakala and Chai la, JJ. S. On 9th July, 1991 For the appellant, Mr. Henry Chanda Senior Legal Aid Counsel For the State Mr. W. Wangwor, Senior State Advocate JUDGMENT Ngulube, D. C. J. delivered the judgment of the court The appellant was sentenced to death for murder... The particulars were that on 13th June, 1988, at Samfya District, he murdered Chipulu. Mapoma. The evidence accepted by the learned trial judge was that early in the morning, around 08.00 hours on the fatal day, the appellant was at the house of PWs 1 and 2 and was seated in a shelter. According to these witnesses as supported by PW3 the appellant had been drinking and from time to time he was asking for money to buy more beer from passers by. The deceased happened to come along and, according'to the prosecution evidence, the appellant once again asked for money from him with which to buy more beer. The appellant was a police officer and at the time was stationed at Mwenya police post, near where this incident took place. The defence put up for the shooting of the deceased in the knee was that while investigating some other matters, the appellant interviewed the deceased who became annoyed with the result that a scuffle ensued for possession of the gun and that it was during that struggle that the firearm went off accidentally. The learned trial judge dismissed the story that there was a 2/.......scuffle - struggle for the gun because PWs 1 and 2 who were close by had given no evidence of any such struggle whatsoever. On behalf of the appellant Mr. Chanda has taken up two major grounds of appeal. The first was that the learned trial judge misdirected himself in his approach to the evidence of PWs 1 and 2 who were grandparents of the deceased and who ought to have been treated as witnesses with a possible bias. The submission was that because of the relationship their evidence stood to be considered on the same footing as for accomplices or persons with a possible interest of their own to serve. We do not wish to discuss at any great length the position of a witness with a possible bias save to point out that it is not correct to say that they stand in the same position as accomplices or persons with a possible interest of their own to serve. While the danger in the latter category of witness may very well be the false implication of an accused person, that in the case of a biased witness is that there is a tendency to colour their evidence such that they would either exaggerate the portions which are unfavourable to an accused or underplay the portions which are favourable to an accused person. We agree that the learned trial judge did not specifically deal with the question of bias but nonetheles he did consider their evidence in full and correctly observed that .they had not attempted to colour their evidence such as by claiming that they saw the appellant deliberately shoot the deceased person. We find, therefore, as Mr. Wangwor submits, that the failure to consider the issue of bias was not fatal in this case. The second ground alleged misdirection when the learned trial judge rejected the defence of accident. It should be noted in this regard that before the evidence of any witness whatsoever can be useful in a case it must be found to be otherwise credible since evidence which is not credible would not even require support and would be incapable of being corroborated or offering corroboration depending on the status of the witness called in question. The learned trial judge had considered the evidence of PWs 1 and 2 and from the careful analysis of such evidence we do not see how he can be faulted for coming to the conclusion that there was no scuffle whatsoever and that the exclamation by the deceased to the effect that he had been killed over his own money was properly taken into account as res gestae and together with the absence of any evidence 3/......of a - of a scuffle as eliminating that defence. Mr. Chanda also took up the finding by the learned trial judge that there was no drunkenness sufficient to afford a defence. We have of our own motion taken up that issue and we have considered all the surrounding circumstances in this particular case. The three witnesses who were at the scene were all agreed that the appellant appeared to have been drinking for a considerable time that early in the morning. According to PW3, an orderly at the police post, the appellant was drunk and had previsously demanded money from him with which to buy more beer. In the circumstances and on the totality of the evidence we find it incredible that the drunken appellant could have deliberately formed the intention to shoot the deceased person with a view to killing him or indeed with a view to causing him grevous bodly harm. At any rate, we entertain a doubt in the matter and we resolve such doubt in favour of the appellant. In the result we find that it would be unsafe to uphold the conviction on the capital charge. The evidence, however, amply justifies a conviction on the lesser charge of manslaughter. We, therefore, allow the appeal against the conviction for murder; we quash that conviction and set aside the death penalty. In their place we substitute a conviction for manslaughter. In view of the circumstances of the case, including the fact that a firearm was carried by a drunken policeman early in the morning when it was dangerous to do so, we consider that the appropriate sentence is seven years imprisonment with hard labour with effect from the date of arrest. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE M. S. Chaila SUPREME COURT JUDGE