Cosmas Phiri v People (APPEAL NO. 87 AND 88 OF 2012) [2013] ZMSC 68 (5 February 2013)

, IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 87 AND 88 OF 2012 BETWEEN: COSMAS PHIRI -VS- THE PEOPLE APPELLANT CORAM: MUMBA, AG. DCJ, PHIRI AND WANKI, JJS On 9 th October, 2012 and 5 th February, 2013 For the Appellants: Mr. A. Ngulube, Director Legal Aid For the Respondent: Mr. P. Mukuka, Senior State Advocate JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. David Zulu -Vs- The People, (1977) ZR 151. 2. DPP -Vs- Kilbourne, (1973) AC 729. 3. Exall (1866) 4 F and F 922. 4. Yotam Manda -Vs- The People, (1988/1989) ZR 129. 5. George Nswana -Vs-The People, (1988/1989) ZR 174. LEGISLATION REFERRED:- 6. Penal Code, Chapter 87 of the Laws of Zambia, Section 200. 7,, Criminal Procedure Code, Chapter 88 of the Laws of Zambia, Section 210. J1 The appellant, Cosmas Phiri was sentenced to suffer death following upon his conviction by the Chipata High Court on one count of Murder, contrary to Section 200 of the Penal Code Chapter, 87 of the Laws of Zambia. The particulars of the offence were that the appellant and Peter Shumba Hara on the 21 st day of August, 2004 at Chipata in the Chipata District of the Eastern Province in the Republic of Zambia jointly and whilst acting together did murder Davison Phiri. The Prosecution case was based on the evidence of four witnesses, namely John Phiri, PWl; Sam Lungu, PW2; Moffat Phiri, PW3; and Number 23407 Detective Sergeant Kanema Manjomba, PW4. The evidence of PW 1 was that on 4 th August, 2004 around 10.00 hours, Davies Phiri, his brother left the village for Jim Compound to sell a Solar Panel, three radios, five small bags, and a calculator. He was using a bicycle. His said brother did not return. J2 The following day they went to Jim Compound to find out where Davies Phiri was. They were told he was seen heading for Chipungu area. They continued searching for him and on 11 th August, 2004 they reported to the police at Chipungu Post. On 21 st August, 2004 acting on information they went to Chipungu area where they recognized the body of Davies Phiri through the clothes he was wearing. At Chupungu Police Post they found one solar panel, a bicycle, three radios, four bags, and a calculator which they recognized as the property that Davies Phiri had when he left the village. They also found two suspects at the Police Post. The evidence of PW2 was that on 21 st August, 2004 at 14.00 hours, he was at Chipungu Police Post where he went to identity the remains of his nephew Davies Phiri. He also identified the items that his nephew had when he left the village which included radios, Solar panel, a calculator, small bags, and a bicycle. The evidence of PW3 was that on 21 st August, 2004 acting on a report from some boys who were looking after cattle, he went to the scene within his farm where he found a shallow grave which had some bones and torn clothes. He then went to report to the J3 police at Chipungu Police Post. Thereafter, he led Manjomba, a police officer and relatives of the deceased to the scene. When Manjomba removed the soil, they all saw that there was a person. Later, they discovered a trail of blood and bicycle marks which led them to a village where two young men, Cosmas Phiri and Peter Shumba lived. The police apprehended Cosmas Phiri, the appellant whom they found with a black and red cable. After being apprehended, the appellant led them to the recovery of a bicycle and a radio cassette. The evidence of PW4 was that on 11 th August, 2004 while on duty at Chipungu Police Post he received a report of a missing person from Sam Lungu of Sakawele Village to the effect that Davison Phiri went missing on 4 th August, 2004. On 21 st August, 2004 he received another report from Moffat Phiri of Alozio Farm that there was a dead body that was buried in his farm. Acting on this report he accompanied the reporter to the scene where he confirmed the report. Thereafter, he contacted the relatives of the m1ss1ng person John who included Phiri who identified the remains as those of Davison Phiri through the clothes he was wearing. Later, he J4 apprehended the appellant whom he found with a solar cable. Following his apprehension, the appellant led to the recovery of items that included a bicycle, a Solar panel, radios, small bags, a calculator, a bicycle head lamp, and a dynamo generator. The items were identified by John Phiri as those the deceased had when he left the village. The appellant later led him to the apprehension of Peter Shumba. Subsequently, he arrested the appellant and Peter Shumba for murder. Under warn and caution in Nyanja both of them denied the charge. Finally, PW4 tendered the items that he recovered as exhibits and the Court marked them as exhibits Pl to P9 respectively. The appellant's evidence on oath was that on 18th August, 2004 when he took cattle for grazing he found a bicycle and other items hidden under some leaves. It appeared to him that those items were those that were announced on radio Maria and Breize. Thereafter, he went to Chipungu Police Post to report after he had put the cattle in the kraal. JS He did not however, find the two officers who worked at the Police Post. Upon his return to his home he decided to get the items from the bush where he found them and took them to his home. On 19th August, 2004 he again went to the Police Post and found PW4 to whom he reported. Upon receipt of the report, PW4 said what he had done was good and PW4 asked him to go with him to the Police Post to give a statement. However, at the Police Post, PW4 started beating him. When he asked why he was being beaten, PW4 said, "don't you know that the things you have picked belong to a dead person?" PW4 continued beating and torturing him, but he continued denying the charge. Later, he heard that the deceased's body was found. The Court below, after considering the evidence before it found that, the deceased left his home on 4 th August, 2004 and in his possession he had some items for sale; that the remains of a human being were found in a shallow grave on PW3's farm; that the said remains were identified as those of the deceased; and that some items which were identified as those the deceased had on the day he left were recovered with the help of the appellant. J6 The Court below further found that, the main questions for determination were: was the deceased killed. If so, was he killed by the two accused? Was he killed with malice aforethought? Having further considered the evidence before it, the Court below found that, the deceased was intentionally killed and his body concealed in a shallow grave ; and that the deceased was killed by the appellant in the course of committing a felony. The Court therefore , found that Peter Shumba was not connected to the killing of the deceased and acquitted him . The appellant was, accordingly, found guilty of murder, he was convicted as charged and was sentenced to death. Being dissatisfied with his conviction, the appellant has appealed against his said conviction. He has advanced two grounds of appeal, as follows:- 1. The Court below erred in fact and in law by finding that the appellant was guilty of murder by way of inference from circumstantial evidence of him having been found in possession of goods that belonged to the deceased. 2. The Court below erred in fact and law by glossing over the inconsistent and/ or contradictory evidence of the prosecution, and the failure of the prosecution to rebut the evidence of the accused persons and to notice that parts of the prosecution evidence were not true or were improbable. J7 In support of the grounds of appeal, Mr. Ngulube, Counsel for the appellant filed heads of arguments on which he relied. Counsel indicated that both grounds of appeal would be rolled into one argument. Mr. Ngulube pointed out that the trial Court stated that the evidence against the appellant was that the exhibits produced in Court were found with him or he led to their recovery; and further, that the appellant said that he found the goods and alerted PW 4, but PW3 in the company of PW4 recovered the goods from the appellant and wondered when the appellant reported to PW4 . Counsel submitted that the Court concluded that it appeared the appellant was merely telling lies in order to defeat the course of justice. It was contended that the Court did not reflect on the other part of the evidence which was given by the appellant that, he was already in custody on the 21 s t August, 2004 when the body of the deceased was found and the goods allegedly recovered. Counsel argued that, if the prosecution had decided to rebut the evidence of the appellant they would have called evidence in rebuttal. Mr. Ngulube pointed out that, the Court below drew an inference of guilt on the part of the appellant. J8 Counsel submitted that an inference of guilt was not the only reasonable inference. It was contended that there was a possibility that while the appellant was found with the items that belonged to the deceased , he did not kill the deceased. Mr. Ngulube contended that the facts of this case could not have been the basis for a Court to be satisfied that the circumstantial evidence had taken the case out of the realm of conjuncture so that it attained such a degree of cogency which could permit only an inference of guilt. The case of DAVID ZULU - VS- THE PEOPLE (1) was cited in which this Court held:- "It is incumbent on a trial Judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The Judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilt." Counsel further referred to the English case of DPP -VS KILBOURNE (2l where LORD SIMON said of circumstantial evidence that it 'works by cumulatively in geometrical progression eliminating other possibilities.' Mr. Ngulube cited EXALL (3l where POLLOCK CB likened circumstantial evidence to a rope comprised of several cords , said:- J9 "One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quitted of sufficient strength. Thus in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is with as much certainty as human affairs can require or admit of." it may be Counsel argued that although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined; and that because it may be fabricated to cast suspicion on another person. Mr. Ngulube submitted that for this reason, it has been said that 'it is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there is no other co-existing circumstances which would weaken or destroy the inference. Counsel, therefore, submitted that, the conviction of the appellant is unsafe. He prayed and implored the Court to allow the appeal, quash the conviction, set aside the (I sentence and set the appellant at liberty. On behalf of the respondent, Mr. Mukuka, Senior State Advocate informed the Court that he supported the conviction. Counsel contended that, there was cogent circumstantial evidence before the Court. Mr. Mukuka pointed out that, crucial was the evidence of PW3 and PW4 who testified, that the appellant led JlO them to where he kept items that belonged to the deceased and he led to his house where other items belonging to the deceased were recovered. Counsel argued that the only inference to be drawn was an inference of guilt. Mr. Mukuka contended that, the appellant's story in defence was an afterthought. Counsel argued that, the Court below had opportunity to observe the demenour of the witnesses before it. Mr. Mukuka pointed out that, the explanation the appellant gave was that he found the items in the bush. Counsel argued that from the evidence the only reasonable inference to be drawn is that, it was the appellant who murdered the deceased. We have considered the grounds of the appeal; the appellant's heads of argument; the submissions on behalf of the respondent; the authorities referred to; and indeed the Judgment of the Court below that, has been appealed against. In ground one, the appellant has attacked the Court below when it found that the appellant was guilty of murder by way of inference from circumstantial evidence of him having been found in possession of goods that belonged to the deceased. Jll It was argued that the Court did not reflect on the other part of the evidence which was given by the appellant and accused two that they were already in custody on 21 st August, 2004 when the body of the deceased was found and the goods allegedly recovered. On the other hand, Mr. Mukuka submitted that, crucial was the evidence of PW3 and PW4 who testified that the appellant led them to where he kept items that belonged to the deceased and he later led to his house where other items belonging to the deceased were recovered. Counsel argued that the only inference to be drawn was an inference of guilt. This is a case of being found in possession of recently stolen property. The evidence being that the deceased disappeared on 4 th August carrying some items which he intended to sell; and that the deceased was found buried in a shallow grave on 21 st August, 2004; and the property he was carrying was found in possession of the appellant, the Court below was justified to draw an inference of guilt. In the case of YOTAM MANDA -VS- THE PEOPLE (4l we held that: J12 "The trial Court is under a duty to consider various alternative inferences which can be drawn when the only evidence against an accused person is that he was in possession of stolen property. is something in the evidence which positively Unless there excludes the less severe inferences against the accused person (such as that of receiving stolen property rather than guilt of a major case such as aggravated robbery or murder) the Court is bound to return a verdict on the less severe case." Further in the case of GEORGE NSWANA -VS- THE PEOPLE (5) we held that:- (i) 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 suspicions 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." As would be noted from the foregoing authorities, the basis of the inference is the absence of reasonable explanation. What we will have to consider is whether the appellant offered a reasonable explanation as to how he came to possess the items that the deceased had. According to the evidence, the appellant when he was first confronted by PW 4 said the property belonged to his brother-in-law; that prompted the police to arrest the 2 nd accused. However, in Court in his evidence on oath he explained that on 18th August, 2004 when he took animals for grazing he found the J13 items hidden under some leaves. He then decided to go and report to the police and on 19th August, he reported to PW 4. The appellant did not however, challenge PW4, who in his evidence did not allude to receiving a report from appellant on 19th August, 2004. With the two explanations, the appellant cannot be said to have given any reasonable explanation as to how he came to possess the items that belonged to the deceased to enable the Court below to determine whether or not the appellant came in possession of the items innocently. It follows therefore, that in the absence of any reasonable explanation as to how the appellant came in possession of the items and the other evidence before it, which include the evidence of a trail a of blood leading to the house where the appellant lived, the Court below cannot be faulted for finding that, the appellant was guilty of murder by way of inference of him being found in possession of goods that belonged to the deceased. We therefore, find no merit in ground one of the appeal. It is accordingly, dismissed. J14 In ground two of the appeal, the appellant has attacked the Court below stating that it glossed over the inconsistent and/ or contradictory evidence of the prosecution, and the failure of the prosecution to rebut the evidence of the appellant and accused two and to notice that parts of the prosecution evidence were not true or were improbable. In support it was submitted that, the Court did not reflect on the other part of the evidence which was given by the appellant and the other, that they were already in custody on 21 st August, 2004 when the body of the deceased was found and the goods allegedly recovered; and that if the prosecution had desired to rebut the evidence given by the defence they would have called evidence in rebuttal. It was further submitted that, there was the lie that exhibits P7 and PS were found on top of the roof of Accused 2 's house, the inconsistency of PW3's and PW4's testimony with regard to the appellant kneeling and burying cables and shoving back soil. In response, Mr. Mukuka submitted that the appellant's story in defence was an afterthought. J15 We have examined the evidence that was adduced before the Court below. It is clear from the evidence that was adduced by PW3 and PW 4, which evidence was not challenged in cross examination, that the appellant surrendered the items which were later identified as the items that the deceased had at the time he left his village on 4 th August, 2004. The appellant's story that he was apprehended on 18th August, 2004 was as submitted by Mr. Mukuka, an afterthought. Further, on the evidence that was adduced before the Court below by PW3 and PW 4, we find no inconsistency as submitted on behalf of the appellant. Both PW3 and PW4 in their evidence spoke of the appellant bending down and that the solar cables were later recovered where he was seen bending down. This evidence was not challenged as the two said witnesses were not cross-examined on this aspect. We do not therefore see the need for calling rebuttal evidence by the prosecution. We therefore, find no merit in ground two of the appeal. It is accordingly, dismissed. J16 Both grounds of the appeal having failed, the appeal equally fails and it is dismissed. The appellant's conviction and sentence are accordingly confirmed. F. N . M. Mumba, ACTING DEPUTY CHIEF JUSTICE ........... .. ~.~~······ ····· G. S. Phiri, ··············-z-1/.~l ....... . · M . . Wanki, SUPREME COURT JUDGE SUPREME COURT JUDGE J17