Mambwe v People (SCZ 8 of 2014) [2014] ZMSC 16 (3 February 2014)

(180) IN THE SUPREME COURT OF ZAMBIA SCZ JUDGMENT NO. 8 OF 2014 HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 113 OF 2012 BETWEEN: BRIGHT KATONTOKA MAMBWE APPELLANT AND THE PEOPLE RESPONDENT CORAM: MUMBA, AG. DCJ, WANKI, JS AND LENGALEGA, AG. JS. On 8th October, 2012, 5th February, 2013, 8th October, 2013 and 4th February, 2014 For the Appellant: Mr. K. Chenda - Simeza, Sangwa and Associates For the Respondent: Mrs. M. C. Mwansa - Assistant Senior State Advocate J U D G M E N T WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO: David Zulu -Vs- The People (1977) ZR 151 (SC). Dorothy Mutale and Richard Phiri -Vs The People (1997) SJ 51 1. 2. (SC). 3. George Nswana -Vs- The People (1988-89) ZR 174 (SC). LEGISLATION REFERRED TO: 4. The Penal Code Chapter 87 of the Laws of Zambia. When we heard this appeal we sat with Honourable Mrs. Justice Mumba who has since retired. This judgment is therefore, a majority judgment. J2 (181) This is an appeal against conviction and sentence. The appellant was charged with two counts. In count one the offence is aggravated robbery contrary to Section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia and in count two the offence is murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence in count one alleged that the appellant and Lucky Chisunka on 4th January, 2003 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together and whilst being armed with hoe handle did steal 1 motor vehicle namely Toyota Corolla Registration Number ACG 1830 valued at K14,000,000 (old currency) the property of Mwewa Morris and or immediately before or immediately after the time of such stealing did use or threaten to use actual violence to the said Mwape Gift to obtain or retain the motor vehicle or to prevent or overcome resistance to its being stolen or retained. J3 (182) In count two the particulars of the offence alleged that the appellant and Lucky Chisunka on 4th January, 2003 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, did murder Gift Mwape. The appellant and Lucky Chisunka pleaded not guilty to the charges. They were convicted of the offences following trial by the trial Court. Following their conviction the appellant and Lucky Chisunka were sentenced to 25 years imprisonment with hard labour in count one and to death in count two. Initially both appellant and Lucky Chisunka, who was 2nd appellant appealed to this Court. However, when the appeal came up during the Lusaka Sessions on 8th October, 2013, Mr. Msoni informed the Court that he had instructions from Lucky Chisunka, the 2nd appellant to abandon his appeal. The Court therefore dismissed the appeal by the 2nd appellant. The evidence for the prosecution was presented by eight witnesses namely Morris Mwewa (PW1), Lemmy Kaluba (PW2), Edison Tole (PW3), Amis Simwinga (PW4), Robson Mwape (PW5), J4 (183) Chrispin Hijuwa (PW6), Simon Chushi (PW7) and Phebby Chalala (PW8) before the trial Court. The Summary of the evidence presented by the respondent before the trial Court is that on 4th January, 2003 Gift Mwape, who worked for PW1 as taxi driver got the motor vehicle namely Toyota Corolla Registration Number ACG 1830 from PW1’s residence in the morning for the day’s business. According to PW1 Gift Mwape was required to park the said car at PW1’s residence at 20:00 hours. PW1 informed the trial Court that when he returned home that day around 22:00 hours the car was not parked at his home. PW1 checked where Gift was operating from and he did not find him there and neither was the car there. According to PW3 who was residing in Chingola at the time, the appellant and Lucky Chisunka drove the car in question to where he was standing around 21:00 hours on 4th January 2003. PW3 identified the appellant and Lucky Chisunka who were in the car as his friends. They (appellant and Lucky Chisunka) asked PW3 to get inside the car and went to J5 PW3’s house. The car was parked at PW3’s neighbour while the appellant and Lucky Chisunka decided (184) to go and sleep at the hotel. It was PW3’s testimony that the vehicle the appellant and Lucky Chisunka came in was a white Toyota Corolla. PW6 informed the trial Court that he received information that there were two men selling a motor vehicle, a Toyota Corolla white in colour and the two men were desperate to sell the car. PW6 followed up the information and subsequently apprehended the appellant and Lucky Chisunka and took them to the police station with the car. PW6 found the ignition key on Lucky Chisunka and the mobile phone on the appellant. According to PW6 the appellant told him that it was Lucky Chisunka who gave him the phone. PW8 informed the trial Court he received a radio message from Chiwempala Police Station stating that they had apprehended two suspects found with a motor vehicle and a mobile phone believed to have been stolen. The suspects were Lucky Chisunka of 4989 Chimwemwe Kitwe and Bright Katontoka Mambwe of house number P. 29 J6 Chamboli Township. PW8 said that they (appellant and Lucky Chisunka) led him to the recovery (185) of the body of the deceased. Therefore, PW8 arrested and charged the appellant for the subject offences. The appellant elected to remain silent and called no witnesses before the trial Court. The appellant advanced two grounds of appeal. In ground one it was contended that the Lower Court erred in law and in fact when it convicted the appellant in the absence of evidence proving criminal liability. In ground two it was contended that the Lower Court misdirected itself both in law and fact when it failed to take into account the evidence of the appellant that he had received the cell phone found in his possession from the second appellant. Counsel for the appellant Mr. K. Chenda (Simeza, Sangwa and Associates) argued the two grounds together. The gist of the arguments is that there was no evidence before the trial Court to J7 support a finding of criminal liability and highlighted several examples of pieces of evidence which in the view of Counsel would have constituted evidence proving criminal liability; that the (186) prosecution evidence permitted several inferences other than the inference of guilty; that the confession was wrongly admitted because no trial within a trial was conducted; and that the evidence of possession of the motor vehicle and cell phone was not sufficient to prove beyond all reasonable doubt that the appellant committed the serious offences of aggravated robbery and murder. Counsel in support of the arguments cited several authorities suffice to state here that we shall refer to relevant ones in the course of this judgment. The summary of the response submitted by Mrs. M. C. Mwansa (Assistant Senior State Advocate) on behalf of the respondent is that the prosecution proved its case and the trial Court was on firm grounds to convict the appellant. The appellant was seen with the motor vehicle which the deceased J8 had been driving before he went missing and subsequently found dead, around 21:00 hours the same day and was in the process of selling it; that the only correct inference that can be drawn from the facts is that the appellant stole the motor vehicle and later killed the (187) deceased; that the alleged confession was not a confession but a mere admission; and that the inference that the appellant obtained possession of the motor vehicle and committed the offence was the proper one to be drawn. Counsel cited several decided cases in support of the arguments. We shall refer to relevant authorities in the course of our judgment. The offence in count one is created by Section 294 (1) of the Penal Code which states in part that:- “Any person who, being armed with any offensive weapon or instrument, or being together with one person or more, steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony of aggravated robbery…” J9 Section 200 of the Penal Code creates the offence in count two. The said section provides that:- “Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” Aggravated robbery is occasioned whenever any person steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any (188) person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained whilst armed with any offensive weapon or instrument, or being together with one or more persons. It must be established that a person stole something capable of being stolen whilst armed with an offensive weapon or instrument or being together with one person or more using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. J10 The offence of murder is committed when a person causes the death of another person by an unlawful act or omission with malice aforethought. Malice aforethought is established whenever an intention to cause the death of or to do grievous harm to any person; or knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person; and an intent to commit a felony among others. We have carefully examined the record of proceedings before the trial Court and the submissions made on behalf of the (189) appellant and the respondent. We have also considered the two grounds of appeal advanced by the appellant before us. We shall deal with the grounds especially starting with the appellant’s ground two. We have found it necessary to make some observations in respect of the second ground of appeal advanced by the appellant. The ground as advanced by the appellant states:- “The Lower Court misdirected itself both in law and fact when it failed to take into account the evidence of the appellant that he had received the cell phone found in his possession from the second appellant.” J11 This ground seems to suggest that the appellant presented evidence before the trial Court which it (the trial Court) did not take into account. The record of proceedings shows that the respondent called eight witnesses who gave evidence to support its case. The appellant exercised his right to remain silent and called no witnesses. In the circumstances of this case we felt compelled to provide some guidance as regards what constitutes the evidence for the prosecution and the evidence for the defence as a result of the second ground of appeal advanced by the appellant herein. (190) Evidence is the means of ascertaining the state of facts being inquired into by the Court or other inquiring body. Evidence is comprised of facts, inferences from facts and statements which proves or tends to prove the facts being inquired into. Evidence of the prosecution is made up of facts, inferences from facts and statements which proves or tends to prove the facts being inquired into presented to the Court by or on behalf of the prosecution. J12 Whereas the evidence of the defence is made up of facts, inferences from facts and statements which proves or tends to prove the facts being inquired into presented to the Court by or on behalf of the accused person(s). Therefore in criminal proceedings, the prosecution must have presented evidence to the trial Court for the Court’s record to have what is described as the prosecution’s evidence. Similarly, the defence must have presented evidence to the trial Court either through the accused person(s) and or witnesses for the Court’s record to have what is described as defence evidence. (191) From the foregoing, it is our considered view that any evidence within the prosecution’s evidence favourable to the defence cannot be called or described as defence evidence. Such evidence can only be properly described as the prosecution’s evidence favourable to the defence. To describe such evidence as evidence of accused person(s) will amount to positively misleading the Court. In the same vein the evidence of the J13 defence favourable to the prosecution can only be properly described as defence evidence favourable to the prosecution and not as prosecution evidence. The appellant herein who was one of the accused persons before the trial Court, by virtue of ground two which in our view is a purported ground, portrayed a position that he or through his witnesses presented evidence before the trial Court. But the Court’s record clearly shows that the appellant never presented any evidence and neither did he call any witness to present evidence on his behalf before the trial Court. In this light, it is our considered view that the appellant herein misleadingly accused the (192) trial Court of allegedly failing to take into account his (appellant) evidence that he had received the cell phone found in his possession from the second appellant who abandoned his appeal. The appellant never presented such piece of evidence to the trial Court at any point during the course of his trial individually or through his witnesses. It is on this strength that J14 we have considered the appellant’s ground two as a purported ground because it is not founded on any facts or law or mixed fact and law which fell for determination before the trial Court during the trial of the appellant. The purported ground two does not constitute a ground of appeal proper and we shall not labour to say more than what we have observed in this respect save to state, for avoidance of doubt, that the purported ground two is not a proper ground; it is misleading; all arguments advanced pursuant to it are misplaced; and it is only justified in the appellant’s imagination. We dismiss it. Our examination of the evidence before the trial court and the arguments advanced by the appellant in this appeal reveals that (193) the fact that the two offences the appellant was convicted of were committed is not in dispute. What is in dispute is whether the appellant committed the two offences or not and this forms the basis of the appellant’s ground one of appeal. It was argued on behalf of the appellant that there was no primary evidence J15 connecting the appellant to the offences. It was further argued that the evidence in this case permitted more than one inference and as such an inference favourable to the appellant should have been adopted by the trial court in keeping with our decision in DOROTHY MUTALE AND RICHARD PHIRI -VS- THE PEOPLE (2) where we stated that:- “Where two or more inferences are possible, it has always been a cardinal principle of the criminal law that the Court will adopt the one, which is more favourable to an accused if there is nothing in the case to exclude such inference.” Although counsel for the appellant advanced the aforementioned arguments with resolute passion we were not at all tempted to sail in the same boat as counsel for the appellant. Simply put, we have disagreed with counsel’s arguments advanced for the appellant. (194) It is our view that there was sufficient evidence before the trial Court connecting the appellant to the offences he was convicted of. Admittedly the evidence was not direct or primary but comprised inferences from facts presented before the trial Court. The evidence was circumstantial, namely, that the J16 appellant and Lucky Chisunka were found in possession of the motor vehicle Registration Number ACG 1830, property subject of the offence in count one by PW3 around 21:00 hours the same day the offences were committed. Later the appellant was found in possession of a cell phone, the property of the victim of the offence in count two; and the appellant and Lucky Chisunka led PW8 to the recovery of the deceased’s body and also warranted invoking the doctrine of recent possession. We are alive to our decision in DAVID ZULU -VS- THE PEOPLE (1) regarding circumstantial evidence. In that case we stated, among others that:- “The Judge in our view must, in order to feel safe to convict, be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only of an inference of guilt.” (195) We are satisfied that the circumstantial evidence in this matter took the case outside the realm of conjecture and attained a degree of cogency which only permitted an inference J17 of guilt. It was therefore safe for the trial Court to convict the appellant on the strength of circumstantial evidence. In respect of the doctrine of recent possession we call in aid our decision in the case of GEORGE NSWANA -VS- THE PEOPLE (3) In that case we had this to say on the inference of guilt premised on recent possession:- “The inference of guilt based on recent possession, particularly where no explanation is offered which might reasonably be true, rests on the absence of any reasonable likelihood that the goods might have changed hands in the meantime and the consequent high degree of probability that the person in recent possession himself obtained them and committed the offence. Where suspicious features surround the case that indicate that the applicant cannot reasonably claim to have been in innocent possession, the question remains whether the applicant, not being in innocent possession, was the thief or a guilty receiver or retainer.” The possessor of goods recently stolen may fairly be regarded as either the actual thief or else a guilty receiver. His possession raises a presumption that of his guilty connection with any further crime that accompanied the theft such as theft or robbery. However, as to what time is near enough to be recent, no (196) J18 general rule has been given. The period within which the presumption can operate varies according to the nature of the article stolen. Three months would be sufficiently recent for a motor vehicle. But for such articles that pass from hand to hand readily like a cell phone, one month would be a long time but seven days would be sufficiently recent. We are alive to the fact that for an inference of guilt based on recent possession to be sustained, there must be no likelihood that the goods might have exchanged hands because it is only then that there will be a consequent high degree of probability that the person in recent possession himself obtained them and committed the offences connected thereto. Further there should be no possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. In the instant case the appellant was found in possession of a car just a few hours after the offences in the two counts were (197) J19 committed and a cell phone in less than two days after the offences were committed. The period herein is sufficiently recent or near enough to warrant an inference of guilt premised on recent possession. We are also satisfied that this is a proper case in which the question we paused in NSWANA’s case can be resolved to the effect that the appellant herein was not a mere guilty receiver but a person who actually committed the offences to which the articles he was found in possession of are connected. It is our upshot that the appellant came in possession of the goods in question herein by stealing them. The appellant was jointly charged with Lucky Chisunka for the subject offences. Their being jointly charged suggested that they acted together with a common purpose. In criminal law, the doctrine of common purpose, common design or joint enterprise refers to the situation where two or more people embark on a project with a common purpose which results in the commission of a crime. In this situation the participants are jointly liable for all that results from the acts occurring within the J20 (198) scope of their agreement. Each of the parties to an arrangement or understanding is guilty of any crime falling within the scope of the common purpose which is committed in carrying out that purpose. The appellant herein through the arguments on his behalf attempted to place all appearance of blame on Lucky Chisunka and wrongly so. The said attempt cannot help the appellant in any way in light of the only reasonable inference from the facts on record that the two acted together. Both the appellant and Lucky Chisunka were residents of Kitwe as can be seen from the evidence given by PW8, they were seen together in the same motor vehicle Registration Number ACG 1830 around 21:00 hours in Chingola by PW3 and they were said to be on the mission of selling the same vehicle according to the evidence of PW6. These facts cannot be mere coincidence but fortify the inference that the duo were parties to one and the same joint enterprise. J21 It was argued on behalf of the appellant that the trial Court relied on the evidence of admission which was not properly admitted. We examined the trial Court’s judgment and found that (199) the trial Judge did not base his decision on the admission in contention and therefore the arguments on this point were misplaced. It was also argued that the trial Judge should not have relied on the evidence of leading as it was not clear as to who between the appellant and the Lucky Chisunka led PW8 to the recovery of the deceased’s body. We have found this argument as one without basis. It was clear that the appellant and the Lucky Chisunka acted together with a common purpose therefore the fact that the evidence is not particular about who specifically led PW8 to the recovery of the deceased’s body is immaterial. In sum, we are satisfied that the trial Court was on firm ground when it properly convicted the appellant for the two J22 offences in the two counts. We dismiss the first ground of appeal as well. This appeal fails and it is dismissed. As regards the sentence of 25 years I. H. L in count one, we wish to state that it has come to us with a sense of shock in light of the aggravating circumstances of this case. The innocent victim of the offence in count two was brutally robbed of the motor (200) vehicle he was using for his work as taxi driver by the appellant and Lucky Chisunka whilst armed with a hoe handle and in the process the innocent taxi driver met his death at the hands of the merciless appellant and his partner in crime Lucky Chisunka. This conduct was inhuman, barbaric and merits severe punishment and we are prepared to met out what in our view is the appropriate sentence for the appellant in count one. We upgrade the sentence from 25 years to life imprisonment, and we confirm the death sentence imposed in count two. J23 ……………………………………… M. E. Wanki, SUPREME COURT JUDGE. …………………………………….. F. M. Lengalenga, ACTING SUPREME COURT JUDGE.