Cephas Kaniki v People (Appeal 97 of 2017) [2018] ZMSC 575 (7 June 2018)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APPEAL NO.97/2017 HN/39/2015 IN THE MATTER BETWEEN: CEPHAS KANIKI AND THE PEOPLE APPELLANT RESPONDENT CORAM: Hamaundu, Kaoma and Kajimanga, JJS On 10th April, 2018 and 7th June, 2018 For the Appellant: Mr M. Mankinka, Legal Aid Counsel For the Respondent: Mrs R. Khuzwayo, Chief State Advocate JUDGMENT Hamaundu, JS delivered the Judgment of the court. Cases referred to: 1. Mwenya v The People [1990-1992] ZR 24 2. Musupi v The People [1978] ZR (reprint) 385 3. Bwalya v The People [1995-1997] ZR 168 4. Mumbi v The People [2004] ZR 106. 5. Jack Chanda & another v The People [2002] ZR 124 The appellant appeals against his conviction for the offence of murder and the sentence of death imposed by the High Court. J 2 The appellant and his juvenile sister, Yvonne Kaniki, were brought before the High Court on a charge of the murder of their mother, Robina Kawishinkanya Mwaba. The case that the prosecution presented to the court below against the appellant and his co-accused was thus: In the night of 8th February, 2015, at their village in the Masaiti District of the Copperbelt Province of Zambia, the appellant gathered some members of the family, namely; Nelson Kaniki (PW1), Joseph Kaniki and Agather Mwaba (PW3). The appellant told the gathering that he had come to confront their mother over the suspicion by people in the village and her relatives that she practised witchcraft. The appellant stated that he was compelled to confront their mother because of the problems that he was currently facing in his life. The appellant called for his young sister, Yvonne Kaniki, and the two of them went to their mother’s house where the appellant asked Yvonne to wake their mother up. Their mother woke up and opened the door to her house. The appellant and Yvonne Kaniki went inside. After a while they came back to join the other relatives. At that point, Yvonne Kaniki told Agatha Mwaba (PW3) and Destelia Kaniki, to go to their mother’s house and see what their brother had done. The time was around 22:00 hours. The two women went to their mother’s house J 3 and found her dead. The group did not announce the death of their mother to the neighbours. Catherine Kaniki, another daughter of the deceased who had not been among the relatives that the appellant had gathered, went to her mother’s house the following morning, only to find her dead in the house. She raised alarm in the neighbourhood about the death of her mother. Eventually, she also reported the death to the police. The relatives let the matter appear as though their mother was killed by unknown persons. On the 11th February, 2015, when the mourners had buried the deceased, Detective Inspector Nkhike came after midnight and apprehended everyone that had been part of the gathering which the appellant had summoned; namely, the appellant, Yvonne Kaniki, Nelson Kaniki, Agatha Mwaba, Destelia Kaniki (PW4) and Joseph Kaniki. In all, the suspects were six. Upon interviewing them, fingers started pointing at the appellant and his juvenile sister Yvonne Kaniki as the people who went to confront their mother. PW4 then arrested the two and charged them with this offence. The appellant’s defence was this: On the material day he received a call from Desteria Kaniki that their mother had called for him. He went to his mother’s house but did not find her. However, Desteria told him that their mother wanted him to take their sister, J 4 Yvonne Kaniki, to the hospital but that the mother wanted to be present. The appellant went to a bar to drink beer as he waited for his mother. He went back again to his mother’s house, only to find that she had not come back yet. He resumed drinking beer until after 17:00 hours when he left with his brother Nelson for their mother’s house. On the way, he discussed family problems with his brother. When they reached their mothers house, she told them to come the following morning since it was now late. The following morning, as he was going to his mother’s house, he learnt that she had died. The appellant’s juvenile sister, on the other hand, opted to confirm the prosecution’s version and went on to explain what happened when she and her elder brother, the appellant, entered their mother’s house. She said that upon being confronted, their mother started insulting the appellant and a fight ensued which resulted in her falling on some agricultural implements which injured her. In cross-examination, the appellant’s juvenile sister admitted that the appellant had asked her to hand to him a pounding stick which he, then, used to hit their mother with. The court preferred the prosecution’s version as presented through the testimony of PW3, Agatha Mwaba, over that of the appellant and, therefore, rejected the appellant’s version of what J 5 transpired on the fateful night. The court then held that the circumstantial evidence against the appellant was very strong and would support a conviction even without taking into account the evidence of his juvenile co-accused, whose evidence the defence had, in any case, rejected on account that she was an accomplice. The court convicted the appellant of the offence of murder. As for extenuating circumstances, the court below, having found already that the defence of intoxication was not available to the appellant in the particular circumstances of this case, held that the only factor that would have been an extenuating circumstance was the fact that the deceased was suspected by relatives of being a witch. However, the court considered and accepted the appellant’s testimony that he did not believe that his mother was a witch. Consequently, she decided not to consider belief in witchcraft as an extenuating circumstance. The court sentenced the appellant to death. The appellant filed three grounds of appeal. These read as follows: 1. The trial court erred in law and fact when it heavily relied on the uncorroborated suspect evidence of the juvenile offender to hold that the appellant was a participant in the prosecution of the unlawful common purpose. 2. The trial court erred in law and fact when it failed to Consider that the evidence of PW1 And PW3 was suspect J 6 and lacked corroboration, or something more. 3. The learned trial judge misdirected herself in her failure to find extenuating circumstances so as to impose any sentence other than the mandatory death penalty on the facts of this case. We will dismiss the first ground of appeal right away because, as can be seen from our summary of the facts, the court below held that the circumstantial evidence against the appellant was sufficient to convict him even in the absence of the testimony of his juvenile sister. In the second ground of appeal learned counsel for the appellants submitted that PW1 and PW3 had been detained for the subject offence with others until they were turned into witnesses for the State; and that prior to their detention they had concealed the death of the deceased until PW2 discovered it. Counsel argued that, in those circumstances, PW1 and PW3 were placed squarely in the category of witnesses with an interest to serve as defined by our decisions in Mwenya v The People’1’ and Musupi v The People’2’. Counsel then argued that the failure by the court below to recognize PW1 and PW3 as witnesses with an interest to serve was an error. In response learned counsel for the State submitted that the evidence of PW1 and PW3 was not suspect at all; and, consequently, required no corroboration. According to counsel, the two witnesses J 7 did not say that the appellant beat the deceased but merely recounted the appellant’s complaint against the deceased, though their evidence placed him at the deceased’s house. Counsel argued that, if at all the two witnesses required corroboration, then such corroboration was provided by the appellant’s testimony in that his account of the events on the fateful night tallied with the accounts of PW1 and PW3. We agree with learned counsel for the appellants that on the authority of Mwenya v The People, and other cases on the same point, PW1 and PW3 should have been treated as witnesses with a possible interest to serve. This is because they had initially been detained as suspects. In George Musupi v The People we set out the approach to be adopted with regard to such witnesses. We held thus: “(1) Although there is a distinction between a witness with a purpose of his own to serve and an accomplice, such distinction is irrelevant so far as the court’s approach to their evidence is concerned; the question in every case is whether the danger of relying on the evidence of the suspect witness has been excluded. (2) The tendency to use the expression ‘witness with an Interest (or purpose) of his own to serve’ carries with it J 8 The danger of losing sight of the real issue. The critical consideration is not whether the witness does in fact have an interest or purpose of his own to serve, but whether he is a witness who, because of the category into which he falls or because of the particular circumstances of the case, may have a motive to give false evidence. (3) Once in the circumstances of the case it is reasonably possible that the witness has a motive to give false evidence, the danger of false implication is present and must be excluded before a conviction can be held to be safe” Looking at the circumstances in this case, the two prosecution witnesses PW1 and PW3 were related to the appellant. Further, it is clear from the overall evidence that the two witnesses shielded the appellant from arrest by not revealing who the culprit was. It had to take their arrest by PW4 for them to point at who, among the family members, were the culprits. The shielding did not end there. It can be seen, for example, that PW1 in his testimony was trying by all means not to give evidence that was incriminating to the appellant. Similarly, PW3 in her testimony was reluctant to state categorically that the appellant beat the deceased even though it was clear from her own testimony that she knew that the appellant had beaten the deceased to death. From all these circumstances, we do not see a J 9 motive by the two witnesses to falsely implicate the appellant. We hold the view that, had the trial court recognized the possibility that the two witnesses could have had an interest of their own to serve and warned itself accordingly, it would inevitably have come to the conclusion that, in this particular case, the danger that PW1 and PW3 were falsely implicating the accused had been excluded. This is, therefore, a case where, even though the court below did not warn itself of the danger of false implication, there was no miscarriage of justice. Having found that the court below correctly relied on the testimony of PW1 And PW3, we also state that the court below properly applied the testimony of the two witnesses and that of the appellant to make deductions that led to the court’s conclusion that the appellant beat the deceased, thereby causing her death. The deductions are supported by the following: In their testimony, the two witnesses placed the appellant at the scene of crime, the deceased’s house, at about the time that the crime was committed. The appellant also in his testimony placed himself at the scene at about the same time. Coming to the appeal against sentence, the only argument advanced by learned counsel for the appellant was that the court J 10 below erred in not taking into account the evidence that the appellant had been drinking prior to the incident. According to counsel, this had reduced the amount of his moral culpability so as to provide extenuation. In support of that argument we were referred to the case of Bwalya v The People*3’ and that of Mumbi v The People*4*. In response learned counsel for the State agreed with the appellant on this ground and argued that the court below ought to have found that there were extenuating circumstances in terms of our judgment in Mumbi v The People*4* and also in Jack Chanda & another v The People*5’. We have taken time to consider the circumstances in each of the cases that have been referred to us by both sides. In Bwalya v The People*3’ the appellant had been drinking at some place. The quarrel that led to the death of the deceased started while the parties were drinking. Hence, we considered that the drunken circumstances generally attending upon the occasion had sufficiently reduced the amount of moral culpability so that there was extenuation. In Jack Chanda & Another v The People*5’, the appellants picked up a fight with one of the patrons at a drinking place: They pursued him up to his residence where the fight continued and, in the process, a third party, the deceased, got involved and was killed. Hence in that case J11 we considered the evidence of drinking as extenuation. In Mumbi v The People*41, on the other hand, the appellant did not pick up a quarrel at a drinking place. Instead, he appeared at his uncle’s house demanding to be paid for the work that he had done; and also demanding to be given a pair of shoes. When the uncle refused, the appellant went to collect a gun, which later turned out to be stolen, and shot dead the deceased, a third party who had stood up to intercept the appellant. There was evidence that the appellant was smelling beer at the time. We rejected his plea that such evidence provided extenuation. So, it can be seen that, so far, we have only accepted evidence of drunkenness where the drunkenness and the quarrel that leads to the death are contemporaneous. In this case, however, the death of the deceased did not occur at an occasion where there was general drunkenness. Instead, the appellant left the place he was drinking from. He met his siblings, and in a level headed manner, told them the reasons why he had come to confront the deceased. None of the witnesses said that the appellant appeared to be drunk when he was telling them why he intended to confront his mother. We, therefore, do not think that the evidence that he had earlier been drinking provided sufficient extenuation. Consequently, there is no merit in J 12 this ground of appeal. We, therefore, uphold the trial courts conviction and sentence and dismiss this appeal. E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE C. Kajimanga SUPREME COURT JUDGE