Mwewa and Anors v People (Appeal 5 of 1991) [1991] ZMSC 41 (6 February 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal Nos 5 & 6 of 1991 HOLDEN AT LUSAKA (Criminal Jurisdiction) ' ' r ? Appellants CHARLES MWEWA CHARLES MWANZA < • ■ < f-------------------- A . v •---- ; ' ■ CORAM: Ngulube, D. C. J., Gardner, and Sakala, JJ. S., 6th February, 1991. THE PEOPLE ■ Respondent The first appellant appeared in person. Mr. C. M. Mundenda, Legal Aid Counsel, appeared for the second appellant. Mr. G. S. Phiri, Director of Public Prosecutions appeared for the State. * . . • * V, A ’ J U D G M E N T : ■ ■■ - Gardner, AJ. S., delivered the judgment of the court. : ■’ ■ ■■ ■ .■ ’ ■■ The appellants were convicted of aggravated robbery;, the particulars of the charge being that they, on the 12th of February, 1987, at Kabwe, ' jointly and acting together did steal K9,940-00 cash the property of Joan Nsakulula and at or immediately before or after the time of stealing did use or threaten to use violence to the said Joan Nsakulula. The facts of the case were that the complainant Joan Nsakulula, who was employed at Chipuluka depot in Mkushi as a sales lady, had, at the end of the day on. the 12th of February, 1987, the sum of K870r^ cash ? cheques making the total of the amount referred/in the charge and she went to bed in a tent within the depot. She was awakened by two persons who came in the tent with a torch and she saw that one of them had a’stick and a gun. Although they were wearing, sacks she was able to see them clearly and she heard them demand money from her. She gave them the plastic bag containing the takings for the day, which included the cash and the cheques. The witness was able to recognise the assaillants as people she had seen before, and one of them raped her. Subsequently she saw the appellants at the police station and she identified them as being the robbers. She said that, together with the money, the plastic bag which _ was taken contained a green pass for Chindwin barracks. PW2 gave evidence that on the day in question he was at the depot in his tent when he heard voices outside. Two men asked him for matches to light their cigarettes and he told them he had none. He then saw two of them lift off the entrance to the tent belonging to PW1. He says he was ; able to see both intruders clearly because there was moonlight. He hit one of the intruders. He identified one of theft as the second . appellant and the second appellant fell down.. However, that appellant then took hold of the stick, beating the witness, whilst the first appellant was saying he would shoot him. The witness ran away, and ' when he came back, he discovered that his sheets, blankets and two pairs of trousers were missing.. He recognised the sheets in court, ■ <’ although they had no marks on them, as belonging to him, which sheets had according to the evidence been found in the possession of the first appellant. He said that he later saw the two men again at the depot and at the police station. PW3, the police investigation officer, said that on information recieved he apprehended both appellants. He said that both of them led him to a place in the bush for half a kilometre where he recovered some torn sacks and a broken airgun and some plastic paper. In his evidence he said that he administered a warn and caution to both the appellants, that is to say he said, "Whatever you say will be in. evidence at your trill". He said after that the first appellant had said that they had used sacks to disguise them in the robbery and that the second appellant had said that the borrowed an airgun from Enqck Chinda of Kansuka Village. He said that he had them taken both the •. appellants to Kansuka Village where Mr. Chinda in their presence had . confirmed that he had lent his airgun to the second appellant. He said that on their way back to th£ police station the first appellant showed him a place off the main road where to find the identity card . referred to by the complainant as having been stolen from her at the. time the money was taken. It is apparent that this card Was in a form; \ of a gate pass. This witness went on to say that the first appellant showed him a wooden stick which he had thrown behind the depot, and, whilst the two appellants were in the Land Rover together with six other suspects, he called PW’s 1 and 2 to see; if,' they could identify ' any one in the llan^,Rover and both prosecution witnesses identified i !, ‘ the two appellants as having been the robbers. Subsequently the witness recovered some property from the possession of the first appellant. Among the property were some bed sheets identified by PW2 as having been stolen from him on the night of the robbery. The first appellant put in written arguments of appeal which were very lengthy. We do not intend to deal in detail with every - J3 - point raised by the appellant except for the argument that the identification by the first two prosecutio^w^tnesses left a lot to be desired. In this connection we acceptJthe evidence of the police . ‘ >a- witness was that there were two occasions when the identifying 'witnesses saw the appellants once at the depot and once at the police station. It is apparent that the identification at the depot took place when the appellants were in a Land Rover with a number of other suspects, and this took place before the Identification at the police station. The first appellant argued that he and his co-appellant were the only ones who were handcuffed, thus making the identification unfair. We agree that the circumstances in this case tendered the identification unsatisfactory and it cannot! be accepted unless there • can’ be found in the evidence something more to support it. . - ' • v ■ • ’ •. In connection with what could be something mqre,'so far. as the first appellant is concerned, we will ignore the finding of the sacks and the sticks and whatever was said after the admission of what we consider to be an inadequate warn and caution* \ In this latter respect we would say that a witness who is going to caution-a suspect before asking questions of him should put to him the full warn and caution which is the one usually contained in a written statement., In this case, as there was no full caution we intend to ignore'whatever was T said by the appellants. However, evidence of. what the appellants did' is entirely admissible. In the context of this case, the most important evidence found as a result of an indication by the first appellant was the gate pass belonging to PW1. In our view this fully corroborated what we have deemed to be unsatisfactory identifying evidence and cured any defects there may have been in such evidence. In the same way, so far as the second appellant is concerned, we find that, ■ regardless of what was said by the. second appellant;at' the time of the finding of the airgun, the statement made by the owner of the airgun in the presence of the second appellant was evidence linking that appellant with the airgun which was used in the robbery. Again . ■ any defects in the identification evidence were ewed by this additional evidence linking the second appellant to the robbery. . For the reasons which we have given, the appeals against conviction are dismissed. .. • • • . * ■ ■ • ’ ■ ... - J4 - , .r . • •: ■• ' 1 .. i 1 ' 1 . • • • Mr. Mudenda has drawn our attention to.the fact that, at the time: • ■? • of the committal proceedings, it was ascertained that the.second, appellant had been a juvenile at the time of the commission of the offence. It would therefore be necessary for him to be sentenced as a juvenile, and, for this purpose* we call for a welfare report No appeal lies against the mandatory sentence of the first appellant. The sentencing of the second appellant will be adjourned until a date to be notified M. H. W. S. Ngulube DEPUTY CHIEF JUSTICE . V' i*1 B. T. Gardner ■■ ACTING SUPREME COURT JUDGE '