Banda v The People (SCZ Appeal 428 of 2013) [2014] ZMSC 25 (3 February 2014)

DENNIS PALASULANI BANDA Appellant AND THE PEOPLE Respondent CORAM: MUMBA, AG DCJ, PHIRI, JS AND LENGALENGA, AG. JS On 5th November, 2013 and 4th February, 2014 For the Appellant : Mr. I. Chongwe, Principal Legal Aid Counsel – Legal Aid Board For the Respondent : Mr. K. I. Waluzimba, Assistant Senior State Advocate – National Prosecutions Authority LENGALENGA, AG. JS, delivered the Judgment of the Court. J U D G M E N T Cases referred to: 1. KAMBARAGE MPUNDU KAUNDA v THE PEOPLE (1990 – 92) ZR 215 at p. 216 2. ALI & ANOTHER v THE PEOPLE (1973) ZR 232 3. JOHN NYAMBE LUBINDA v THE PEOPLE (1988 – 89) ZR 110 4. THE PEOPLE v ROBERT PHIRI & ANOTHER (1980) ZR 249 5. CHIMBO & OTHERS v THE PEOPLE (1982) ZR 20 Other works referred to: 6. A CASE BOOK ON CRIMINAL LAW – JOHN HATCHARD & MUNA NDULO: Page 64 When we heard this appeal we sat with Honourable Mrs. Justice Mumba who has since retired. This judgment is therefore, a majority judgment. The appellant was convicted of murder contrary to section 200 of the Penal Code Cap 87 of the Laws of Zambia. The particulars of offence are that on 16th October, 2007 in Chisamba, in the Chibombo District of the Central Province of the Republic of Zambia, the appellant murdered one, Evelina Daka. He was sentenced to death and he now appeals against conviction. The prosecution case rested on the evidence of PW1, Judith Njovu, and PW2, Patrick Lawrence Sakala. The facts in brief, were that on 16th October, 2007 at Chisamba, PW1 went to visit her grandmother, Evelina Daka, the deceased, in Old Kasempa Bucheketelo. When PW1 was there visiting and whilst her grandmother was cleaning plates, the appellant arrived carrying an axe on his shoulder, according to PW1 and PW2’s evidence. Upon seeing the appellant, the deceased asked him if he had gone there to kill them since he was carrying an axe. He did not answer and by passed her, then he removed the axe from his shoulder, turned behind her and axed her on the head twice. She fell down before PW1 and PW2 ran away. When PW1 looked back, she saw the appellant following her and she began shouting to those who were at a house near the road and they answered. Then when she checked behind her, she saw the appellant entering the farm for Dixa Siachole and she went to where she heard someone answering when she shouted for help. PW1 told people she found there that the appellant had killed her grandmother and later, she and PW2 were accompanied by three people back to the scene where their grandmother was axed. At the scene, according to PW1 and PW2 they found that she had died. There was a lot of blood oozing from the deceased’s head and they confirmed seeing two wounds on her head. PW2 reported the matter to Munano Police Post. PW1 testified that she had known the appellant for about a year before the incident whilst PW2 said that he had known him for a short time as he used to go to the deceased’s place to do some piece work for her. They both identified the appellant in court. PW1 informed the trial court that she and PW2 were cousins. PW3, Mary Lungu, a peasant farmer and housewife of Old Kasempa, Buchetekelo Resettlement, confirmed that on 16th October, 2007, her nephew, PW2 went to her house for help because his grandmother had died. She and her son, Dalitso accompanied him back to the deceased’s house where she found the deceased lying on the ground with blood oozing from both sides of the head, she claimed to have seen two wounds, one on the side of the head and another at the back. PW3 went to the neighbourhood watch members, she found Alick Sakala who later reported the matter at Munamo Police Post. PW4, White Paul Phiri’s evidence was that in October 2007 when he went to visit his brother, Abraham Banda in Buchetekelo, he learnt that a woman had been axed and died and he went to the scene. Later, he and others went looking for the appellant who was alleged to have killed the deceased and they found him seated in the middle of the road on the tarmac, they apprehended him. According to PW4, the appellant offered him a bribe of K3 million (old currency) so that he could be forgiven for the crime he had committed, the witness rejected the offer. PW4 claimed to have known the appellant as far back as 2006. PW5, Gibson Daka testified that he identified the deceased’s body as his mother, Evelina Daka at the University Teaching Hospital (UTH). He also claimed to have seen two cuts on her head. He had stated that he saw her two days earlier and she was alright and had no injuries. At the trial, in his defence, the appellant denied killing Evelina Daka or meeting her on 16th October, 2007. He also denied knowing her or even doing any piece work for her. He further denied meeting Judith Njovu (PW1) or seeing Lawrence Sakala (PW2). He was found guilty and convicted of murder. He appeals against the conviction on the following grounds: 1. The learned trial Court misdirected himself when he convicted the appellant without recognising and excluding the inherent danger of false implication by relatives to the deceased. 2. The learned trial Court erred in law and fact by relying on the evidence of identification which fell below the required standard of proof and thereby raised a lingering doubt. In support of the first ground of appeal, learned Principal Legal Aid Counsel, Mr. Chongwe first made an observation from the evidence on the record, including the 2nd and 4th paragraphs of pages 2 and 3 of the judgment of the court below, that it is certain that PW1 and PW2 were both related to the deceased, Evelina Daka. He submitted that it is also clear from the judgment of the trial court that reliance was placed on exhibit “P1” (the postmortem examination report) and the evidence of PW1 and PW2. He contended that at no time in his judgment did the Honourable trial Judge address his mind or recognise the danger of false implication of the accused by the key witnesses who were related to the deceased. He submitted that considering that relationship PW1 and PW2 could have been considered to be witnesses with a possible interest to serve and treated as suspect witnesses. Learned Counsel for the appellant submitted that it was the court’s duty to recognise such a danger and exclude it before a conviction could be said to be safe. He argued that the failure to warn himself of the danger is a misdirection that warrants the quashing of the conviction because apart from PW1 and PW2’s evidence, there was no other evidence to support the charge against the appellant. He relied on the case of KAMBARAGE MPUNDU KAUNDA v THE PEOPLE “(vi) Prosecution witnesses who are friends or relatives of the prosecutrix may have a possible interest of their own to serve and should be treated as suspect witnesses. The Court should, therefore, warn itself against the danger of false implication of the accused and go further to ensure that that danger has been 1 in which this Court held inter alia: excluded.” He submitted that in view of the foregoing, it is their prayer that this appeal against conviction must succeed. The appellant’s second ground of appeal was argued in the alternative or further to the first ground. Learned Principal Legal Aid Counsel argued that it is trite law that all the ingredients of an offence in criminal cases must be proved beyond reasonable doubt. He submitted that there is a lingering doubt that should be resolved in the appellant’s favour. His submission in essence challenges the trial court’s finding that the appellant was properly identified as the person who caused the death of the deceased, Evelina Daka. It was further contended that none of the civilian witnesses were called to identify the appellant at an identification parade, including PW1 and PW2. Counsel for the appellant argued that the prosecution evidence as it relates to court room identification has little or no evidential value. He submitted that there is no credible evidence relating to identification to prove that the appellant is the perpetrator of the offence. He further submitted that there was no explanation offered for the police not conducting an identification parade prior to the commencement of trial. It is further the appellant’s contention through Counsel that the court room identification of the appellant has 2 which was followed in the little or no value. They relied on the case of ALI AND ANOTHER v THE PEOPLE 3 . It was submitted that the aspect of identification of the case of JOHN NYAMBE LUBINDA v THE PEOPLE appellant goes to the root of the prosecution case and further that the lingering doubt should be resolved in the appellant’s favour. In conclusion, Counsel for the appellant submitted that the appellant’s conviction is manifestly unsafe in the circumstances of this case and that the appeal must be allowed. He prayed that the conviction be quashed and the appellant be set free. Learned Assistant Senior State Advocate, Mr. Waluzimba responded to the arguments supporting the first ground of appeal by arguing that the failure by the learned trial court to exclude the inherent danger of false implication by relatives of the deceased is not sufficient enough to warrant quashing the conviction. He submitted that the omission is not fatal. He argued that notwithstanding the trial court’s failure or omission to warn itself of the danger of false implication of the appellant by relatives of the deceased, it is his submission that this is a proper case in which to uphold the conviction. Mr. Waluzimba submitted further that any court properly directing itself to the evidence would have convicted the appellant on the evidence. Conversely, he argued that the appellant could not have been acquitted on the evidence and that, therefore, the aforestated conclusion cannot be revisited. He submitted that this argument is further fortified by something more. He submitted that the evidence by PW4 at page 9 and line 3 from bottom of the record of appeal where the appellant was begging for forgiveness upon his apprehension by PW4 and others is that something more. Learned Counsel pointed out to the court that PW4’s evidence was not challenged in cross-examination. Further, he submitted that, therefore, from PW4’s evidence, if the court below had properly directed itself to the dangers of false implication of the appellant from PW1 and PW2, it could have arrived at a conclusion that PW4’s evidence was the something more and ultimately, that it was safe to rely on the evidence of PW1 and PW2, relatives to the deceased. Learned Counsel prayed that the first ground be dismissed. In response to the second ground of appeal, Mr. Waluzimba submitted that the trial court did not err by relying on the evidence of identification and that the said evidence did not fall below the required standard of proof. His argument is premised on the fact that both PW1 and PW2 knew the appellant before. PW1 testified that she had known the appellant for a year before the incident. PW2 also testified that he had known the appellant for a short time and that the appellant used to do some piece work for his grandmother, the deceased. Learned Counsel submitted further that the offence was committed in broad daylight around 16:00 hours as indicated at page 4, line 35 of the record of appeal. Further, he submitted that both PW1 and PW2 testified that the appellant first by-passed the deceased before turning back and hacked her. He added that the circumstances under which the deceased was hacked were not so sudden and traumatic such as to cause PW1 and PW2 to have doubts. He submitted that both witnesses had a good opportunity to observe the appellant who was well known to them. Counsel argued that considering those factors, there could be no doubt that the trial court was on firm ground as reflected in the judgment. Turning to the appellant’s argument on the police’s failure to conduct an identification parade, Mr. Waluzimba submitted that conducting an identification parade would not have served any purpose as the appellant was known to the witnesses. He submitted that the circumstances of conviction are safe and he urged the court to dismiss the appeal. In response to the arguments by the State representative, Mr. Chongwe reiterated the need for the court to warn itself of the danger of false implication of the appellant by relatives to the deceased. He submitted that it was PW1 and PW2’s evidence that formed the basis of the conviction. With respect to PW4’s evidence that the appellant pleaded for forgiveness, he conceded that the same was not challenged but he submitted that it should have been addressed by the trial court to establish the veracity. He argued that PW4’s evidence should have been assessed in light of what the appellant said. With respect to the second ground of appeal, learned Counsel for the appellant submitted that the identity of the perpetrator is critical in criminal cases and that it is immaterial if one or two witnesses knew the perpetrator. He submitted that considering the scenario where the appellant denied being known by the witnesses who were not present at the time of arrest, it would be prejudicial to accept the evidence of identification. We have considered the submissions by Counsel and perused the record of appeal. As regards the first ground of appeal, we accept that the trial court has a duty to warn itself against the danger of false implication of the accused by suspect witnesses, to ensure that the danger has been excluded before proceeding to convict. From the evidence on record, it is clear that PW1 and PW2 were relatives to the deceased. The gist of Counsel for the appellant’s argument in support of this ground is that without the evidence of these two witnesses, there was no evidence upon which the prosecution case could succeed. Further that the misdirection by the learned trial court is a misdirection sufficient enough to warrant the quashing of the appellant’s conviction. However, we took into consideration the issue of something more advanced by learned Assistant Senior State Advocate. The something more came in the form of PW4’s evidence that when he and others found the appellant seated in the middle of the road, on the tarmac, he asked for forgiveness and tried to bribe him with K3 million (old currency). We accept that argument of evidence of something more because it was not challenged in cross-examination by the appellant. Further, the appellant did not give any reasons why PW4 would falsely testify about him, especially since he did not witness the alleged murder. In A CASE BOOK ON CRIMINAL LAW – JOHN HATCHARD and MUNA NDULOthe learned authors at page 64 stated: “In most cases, the best evidence is that of the witnesses who can speak to the accused’s action and demeanour at and immediately before and immediately after the incident.” In this case, PW4’s evidence relates to the appellant’s reaction upon apprehension which was soon after the incident. It is therefore relevant to this case and could not have been disregarded by the trial court as it connected the appellant to the commission of the offence. This ground of appeal therefore lacks merit and we, accordingly dismiss it. We turn to the second ground of appeal which challenges the trial court’s reliance on the evidence of identification. It was contended by Counsel for the appellant that the evidence of identification fell below the required standard of proof and raised a lingering doubt. The argument advanced by Counsel for the appellant was that no identification parade was conducted for the witnesses, namely PW1 and PW2 who were not present at the time of apprehension to go and identify the appellant. From the evidence on record, PW1 claimed to have known the appellant for about one year whilst PW2, testified that he had known the appellant for a short while before the incident. PW2 even testified that the appellant used to do some piece work for his grandmother, the deceased herein. Mr. Waluzimba for the State argued that the omission to conduct an identification parade was, therefore, not fatal as the appellant was known to the two witnesses. 4 wherein this Court held that This brings us to the case of THE PEOPLE v ROBERT PHIRI & ANOTHER the adequacy of evidence of personal identification always depends on all the circumstances surrounding each case, which must be decided on the merits. Still on the issue of identification and whether it was necessary for the police to conduct an identification parade since the appellant was known by the witnesses, we accept Counsel for the appellant’s argument that court- room identification is not sufficient and that it must be preceded by earlier identification of the accused. In this case, PW1 and PW2 identified the appellant in court and did not attend an identification parade. However, it is our considered opinion that the omission by the police to conduct an identification parade is not fatal to the prosecution case as the two witnesses, PW1 and PW2 knew the appellant very well, from the evidence on record. There could have been no mistaken identity in this case and that in fact, this was more a case of recognition as the appellant was 5 , we accepted and acknowledged that well known to PW1 and PW2. In CHIMBO & OTHERS v THE PEOPLE recognition is accepted to be more reliable than identification of a stranger. Therefore, the learned trial court’s reliance on evidence of identification cannot be faulted on the mere ground that there was no identification parade conducted. We agree with the respondent’s Counsel’s submissions and find that the learned trial judge was on firm ground when he relied on the evidence of identification presented by the prosecution. Therefore, for the reasons stated, the second ground of appeal lacks merit and also fails. The appellant being unsuccessful on both grounds, the entire appeal therefore fails and it is, accordingly, dismissed. ………………………………………. G. S. Phiri SUPREME COURT JUDGE …………………………………………. F. M. Lengalenga ACTING SUPREME COURT JUDGE