Chimfwembe v The People (SCZ 9 145 of 2013) [2014] ZMSC 22 (9 March 2014)

IN THE SUPREME COURT OF ZAMBIA SCZ/9/145/2013 AT THE KABWE DISTRICT REGISTRY HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: GODFREY CHIMFWEMBE APPELLANT AND THE PEOPLE RESPONDENT CORAM: WANKI, JS, LISIMBA, AND KAOMA, AG. JJS On 13th August, 2013 and 10th March, 2014 For the Appellant: Mr. Ngulube - Director Legal Aid Board For the Respondent: Mrs. Masempela - State Advocate J U D G M E N T WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. 2. Emmanuel Phiri -Vs- The People (1982) ZR 77. Kombe -Vs- The People (2009) ZR 282. LEGISLATION REFERRED TO: The Criminal Procedure Code Chapter 88 of the Laws of 3. Zambia. 4. The Penal Code Chapter 87 of the Laws of Zambia. This is an appeal against conviction only. The Appellant was convicted on one count of defilement contrary to J2 Section 138 of the Penal Code Chapter 87 of the Laws of Zambia as read together with Act No. 15 of 2005. The particulars of the offence alleged that the Appellant on 3rd December, 2009 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia had unlawful carnal knowledge of a named girl under the age of 16 years. The Appellant pleaded not guilty to the charge. Following his conviction, the Appellant was committed to the High Court in accordance with the provisions of Section 217(1) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia for sentencing. The High Court sentenced the Appellant to 15 years imprisonment with hard labour. The Appellant’s conviction was based on the evidence of PW1, the 10 year old prosecutrix, Dailes Soko (PW2), Matildah Zulu (PW3) and Detective Constable Fwambo Siyame (PW4). The summary of the evidence is that on the fateful day PW1 was coming from a friend’s house going to her home when the Appellant held her and pulled her into a nearby toilet, undressed her and made her to lie down. According to PW1 the Appellant undressed, slept on top of her and inserted his J3 penis into her vagina. She (PW1) screamed and two men came and caught the Appellant. The two men found the Appellant and PW1 coming out of the toilet and took the Appellant to PW1’s mother, PW2, who was at home. PW2 checked PW1’s private part and saw fluid and sperms. She did not bath PW1. She took her to Mwembeshi police. PW3 who was called home by PW2, her mother also checked the prosecutrix and found a cut and sperms on her private part. She accompanied PW1 and PW2 to the police. The following day PW3 apprehended the Appellant when she heard his voice at the makeshift store. The Appellant is a well-known person to PW2 and PW3 as he lives in the same area with them. PW4 arrested and charged the Appellant for the subject offence and produced medical reports as part of his evidence. The Appellant gave unsworn evidence and called no witnesses before the trial Court. He testified that on the material day he was coming from teaching extra lessons. As he was walking he heard footsteps behind. He gave way and the prosecutrix went past him and in the process she hit him and the books he was carrying fell. According to the Appellant J4 the prosecutrix started laughing and he started insulting her. It was the Appellant’s story that two men called out to him as he was insulting the child and asked what the child had done, but before he could explain a fight erupted. According to the Appellant the two men took him to the prosecutrix’s home where they found Mrs. Muzumara and another lady who came out of the house. After leaving the prosecutrix’s home the Appellant and the two men decided to go to the police so that he could make a complaint of assault. On the way to the police the Appellant forgave the two men and he went home. The trial Court found that the prosecutrix was defiled by the Appellant on the 8th November, 2009 as opposed to the date indicated on the charge sheet and that at the time the prosecutrix was defiled she was only 10 years old. On the basis of the said findings the trial Court convicted the Appellant which conviction is now the subject of this appeal. The Appellant advanced two grounds of appeal. In ground one it was contended that the trial Court erred in fact and in law to find that it was the Appellant who defiled PW1 as the evidence upon which the finding J5 was based was unreliable and inconsistent and lacked particulars. The contention in ground two is that the trial Court erred in fact and in law to find that the danger of false implication had been eliminated. Counsel for the Appellant Mr. A. Ngulube (Director-Legal Aid Board) argued the two grounds together. The gist of the arguments is that the trial Court erred to find that it was the Appellant who committed the subject offence on ground that the evidence upon which the finding was based is unreliable, inconsistent and lacked particulars. In the submissions Counsel highlighted particulars touching on the discrepancy in respect of the date the offence occurred between the charge sheet and the evidence given; that the evidence of PW1 is not consistent with the true account of defilement; and that PW1 and PW2 did not mention that PW3 was informed about the defilement among others. Counsel for the Appellant further argued that the finding of the trial Court that there was corroboration both as to the commission of the offence and identity as required by our decision in Emmanuel Phiri - J6 Vs- The People (1) was based on the evidence which had flaws thereby the supposed corroboration was tainted. The summary of the response by Mr. Masempela (State Advocate) on behalf of the Respondent is that the alleged inconsistencies raised by the Appellant in this appeal did not affect the State’s case as the State had proved its case beyond all reasonable doubt. It was argued that more weight should be given to the prosecution evidence compared to the Appellant’s evidence which was unsworn. It was further argued that the prosecutrix has no cause to deliberately make false allegations against the Appellant and as such the dangers of false implication were ruled out in accordance with the third holding in Emmanuel Phiri’s (1) case. We have carefully considered the evidence and submissions. The Appellant herein was charged and subsequently convicted by the trial Court for the offence of defilement. Section 138(1) of the Penal Code creates the offence of defilement. The said section provides in part thus:- “Any person who unlawfully and carnally knows any child commits a felony…” J7 Section 131(A) of the Penal Code defines a child in the following terms:- “"child" means a person below the age of sixteen years. To establish that the offence of defilement was committed, it must be shown that unlawful carnal knowledge of a child occurred at the instance of the accused. Unlawful carnal knowledge implies sexual intercourse outside the parameters of the law. Further it is a material ingredient that the victim of the said sexual intercourse must be a person below the age of 16 years in keeping with the definition of a child proffered by Section 131(A) of the Penal Code. It is trite that the evidence of the victim or complainant in sexual offences requires corroboration. Corroboration is required both as to the commission of the offence and the identity of the offender so as to eliminate the dangers of false complaint and implication. Corroboration entails independent or separate supporting evidence which affects the accused by connecting or tending to connect him or her with the crime. J8 The law also requires the evidence of child witnesses to be corroborated (Section 122 of the Juveniles Act). With regard to the argument by Mr. Ngulube that the evidence was unreliable, inconsistent and lacked particulars, in our view unreliable evidence implies that evidence which is liable to be erroneous, misleading, not worthy of trust or belief. It is our observation that evidence can be unreliable for being false or inconsistent in very material particular and for being so manifestly discredited (among others) such that any reasonable tribunal cannot safely rely on it. Inconsistent evidence is that which is composed of different and conflicting statements (oral or otherwise). It is opined here that inconsistencies in evidence only affect the quality of the evidence. Where such inconsistencies taint the evidence in very material particular little weight can be attached to it. The evidence presented before Court must disclose material particulars which are relevant for proving the elements of the offence. Where the particulars necessary for establishing the elements of the offence are omitted in the evidence such evidence can be faulted and reliance on such J9 evidence is unjustified. We must hasten to state that not every detail must be presented in evidence. Only particulars essential for proving the elements of the offence must be adduced in evidence. On this strength the evidence which lacks irrelevant details cannot be faulted. It is our view that the danger of false implication can exist in sexual offences hence the requirement for corroboration. We have always insisted on corroboration in ensuring that the dangers of the false implication are eliminated. However, the dangers of false implication can also be eliminated by special and compelling grounds. In Emmanuel Phiri’s (1) case we held inter alia that:- “It is a special and compelling ground, or that something more which would justify a conviction on uncorroborated evidence, where, in the particular circumstances of the case there can be no motive for a prosecutrix deliberately and dishonestly to make a false allegation against, an accused; and the case in effect resolves itself in practice to being no different from any other in which the conviction depends on the reliability of her evidence as to the identity of the culprit.” From the evidence presented before the trial Court, it is our view that errors highlighted by the Appellant in the submissions did not affect proof of the salient elements of the J10 offence for which the Appellant was convicted and the identity of the Appellant. The trial Court cannot be faulted on the basis of the highlighted errors. As regards the danger of false implication, Counsel for the Appellant argued that such danger was not ruled out. We are at pains however, to accept the aforesaid argument. We accept the Lower Court’s finding that there was corroboration as to the commission of the offence and identity of the Appellant. The Appellant in his unsworn statement confirmed what PW1 stated in her evidence that the Appellant was apprehended by two men and taken to her mother PW2. In our view, this amounted to an odd coincidence which amounted to corroboration. We find no merit in this appeal and it is dismissed. …………………………………… M. E. Wanki, SUPREME COURT JUDGE. J11 ……………………………………. M. Lisimba, ACTING SUPREME COURT JUDGE. …………………………………… R. M. C. Kaoma, ACTING SUPREME COURT JUDGE.