Chewe Mwansa v People (SCZ Appeal 119 of 2000) [2001] ZMSC 141 (3 April 2001)

JN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 119 OF 2000 HOLDEN AT LUSAKA (Criminal Jurisdiction) CHEWE MWANSA VS THE PEOPLE APPELLANT RESPONDENT Coram: Sakala AG. DCJ., Chirwa and Lewanika JJS 3rd April, 2001. For the Appellant - In Person. For the State, Mr. J. Mwanakatwe, Principal State Advocate. Sakala, AG. D. C. J., delivered the Judgment of the Court. JUDGMENT The appellant was sentenced to undergo the mandatory minimum sentence of 15 years imprisonment with hard labour following up his conviction for the offence of aggravated robbery contrary to Section 294( 1) of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence alleged that the appellant, on 8th August, 1998 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with others unknown, did steal one vehicle namely, a Toyota Corolla Registration No. AAR 2575 valued at K13 million Kwacha from Bright Kakana and used violence to the said Kakana at the time of the robbery. : J2 : The prosecution evidence conclusively established that an offence of aggravated robbery occurred on 8th August 1998 at Lusaka in which a vehicle, Toyota Corolla Registration No. AAR.2575, valued at K13 million was robbed from one Bright Kakana and force used at the time of the robbery. The evidence connecting the appellant to this aggravated robbery was that, on the date in question, PW1 together with PWs 2 and 3 drove to PW3’s house in Libala compound between 2030 hours and 21.00 hours. While parked at the house of PW3, a red car parked behind them. Two people emerged from that red car and confronted PWs 1 and 2, one of them pointing a gun at PW1. One person, later identified as the appellant, remained seated in the red car. The two people who had confronted PWs 1 and 2 pulled them out of the car they were in and drove it off. PWs 1 and 2 then approached the appellant whom they requested for assistance to chase the robbers who had snatched their car. According to the prosecution evidence, the appellant, who was then in the process of driving off, was stuck in a ditch. PW1 rushed to the appellant to ask him to give chase to the stolen car. The appellant refused. But when confronted, the appellant explained that he had just been hired by the people who had snatched the car from them. PW1 drove the appellant in his car to the Police with the help of the people who had come to the scene. In his defence the appellant testified that he had been hired by three men who forced him to drive them to Libala. On arrival in Libala, he was ordered to park his car behind another motor vehicle. Two of his passengers walked to the car in front and at gun point ordered two people from the car to come out and lie down. The third passenger in his car remained guarding him. He joined his friends as they drove off. : J3 : He explained to the other people that he was also a victim of an armed robbery and suggested to them to go together to the Police Station. The learned trial judge considered the prosecution evidence as well as the explanation given by the appellant. He accepted the fact that there was a robbery in which the car in issue was stolen. He also accepted that the appellant was found in a red car that had parked behind the stolen car ; that the appellant was found and apprehended in the red car immediately after the robbery of PWl’s car; and that the appellant attempted to drive away from the scene of crime after PW1 had been robbed. The learned trial judge considered the issue of whether the appellant was one of the men who robbed PW1 of his motor vehicle. The court found that the version of the prosecution evidence of how PWl’s car was stolen was common cause with the story of the appellant, the difference being that, according to the appellant, three men came out of his car while a third man remained guarding him. The court rejected the story of the appellant and accepted that there were only three men in the car. The third being the appellant himself who remained in the red car while his two passengers were robbing PW1. The court found that the appellant’s story was concocted and full of lies. The court observed that the appellant’s story was that the man guarding him had a gun but that notwithstanding that fact, the appellant made no effort to drive away from the scene of crime. The court rejected the story that there was a person guarding the appellant. The court noted that the appellant should not have panicked to attempt to drive off immediately after the robbery if he was not acting in association with the other two robbers who drove away. The court concluded that the : J4 : appellant was associated with the commission of the robbery and was part of the group that robbed PWl’s Toyota Corolla car. The appellant, who appeared in person before us, criticised these findings of the learned trial judge. He attacked the whole evidence of all the prosecution witnesses. He argued that it was not true that he refused to chase the bandits. But explained that in the circumstances of this case, it was not possible for him to have chased the bandits as they were armed and he had also been a victim of the robbery. He also attacked the witnesses that the vehicle had been stuck in the ditch, arguing that if it was true that his vehicle had been stuck in the ditch, PWs 1 and 2 did not testify to the fact that they retrieved this vehicle from the ditch and no other witnesses were called to testify to the fact that the vehicle was stuck in the ditch. On behalf of the State, Mr. Mwanakatwe supported the conviction. He submitted that the fact that the appellant was apprehended at the scene was not in dispute. He contented that the whole case hinged on the issue of credibility. Counsel pointed out that the learned trial judge observed the demenour of the witnesses and accepted the version of the prosecution witnesses while rejecting the appellant’s story. Mr. Mwanakatwe submitted that the appellant’s refusal to assist the victims of the robbery and the panicking at the scene was not conduct consistent with innocence. We have examined the evidence and the judgment on record. We agree with the submission by the learned Principal State Advocate that on the facts before the trial court the only issue was one of credibility. Once the court accepted the prosecution evidence, the conclusion was obvious and inevitable. Indeed, the appellant’s : J5 : explanations had no merit. The appellant was not a passenger but the driver of the vehicle from which the bandits emerged. The story that he was guarded when the bandits were attacking PW1 is a complete fabrication to us. The appeal against conviction is dismissed. No appeal lies against the mandatory minimum sentence of 15 years imprisonment with hard labour. E. L. Sakala, ACTING DEPUTY CHIEF JUSTICE. D. K. Chirwa, SUPREME COURT JUDGE. D. M. Lewanika, SUPREME COURT JUDGE.