Sinkonde v People (Appeal 11 of 2016) [2017] ZMCA 120 (16 March 2017)

IN THE COURT OF APPEAL HOLDEN AT LUSAKA (Civil Jurisdiction) Between: HUMPHREY SINKONDE AND THE PEOPLE APPEAL No. 11 of 2016 APPELLANT RESPONDENT CORAM: Mchenga, DJP, Chishimba and Sichinga, JJA On 17th January 2017 and 16,h March 2017 For the Appellant: C. Siatwinda, Legal Aid Counsel, Legal Aid Board For the Respondent: G. C. Mulenga, Principal State Advocate, National Prosecution Authority A A A A A A JUDGMENT Mchenga, DJP, delivered the Judgment of the Court. Cases referred to: 1. Chimpango and Others v. The People (1978) Z. R. 304 2. Isaa Mwasumbe v. The people (1978) Z. R. 354 (SC) 3. Kambarange Mpundu Kaunda v. The People (1990-92) Z. R. 215 4. Simon Malambo Choka v. The People (1978) Z. R. 243 5. Phiri and Others v. The People S. C. Z Judgment No. 1 of 1978 6. Machipisha Kombe v. The People S. C. Z Judgment No. TJ OF 2009 7. John Mkandawire and Others v. The People (1978) Z. R. 46 8. Sammy Kambilima and Others v. The People Judgment No. 14 of 2003 J2 9. Chimbini v. The People (1973) Z. R. 191 10. Mwansa Mushula and Others v. The People (1978) Z. R. 58 11. Yokoniya Mwale v The People Appeal No. 285 of 2014, Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia Humphrey Sinkonde, the appellant, appeared before the High Court sitting at Kasama, charged with one count of the offence of Murder contrary to section 200a of the Penal C^de. The allegation in the informqdion, was that oja 1st November 2012, at Mbala, in the Mbala District of the Northern Province of*the Republic of Zambia he murdered Winford Matafwali. The evidence against him at the trial was that on 27th October 2012, between 17:00 and 18:00 hours, Mwenya Nayame, Pwl, was in her house at Musombizi Village in Mbala, when she heard a gunshot. Her children called out saying that their father, Winford Matafwali, had been shot. She came out of the house and found the appellant, who was her husband's nephew, carrying a firearm. He was in the company of two other men. J3 The appellant suggested that they should also shoot her but one of the two men he was with dissuaded him. The three of them then jumped over her husband, who was on the ground, and ran away. Her husband, who was injured, was taken to the hospital where he died on 1st November, 2015. The post-mortem on his body found the cause of death to be a gunshot wound. There was also evidence from Detective Inspector Chimimba, Pw2, that he was assigned to investigate the murder. He apprehended the appellant who led him to Mushishika Village where he recovered a firearm. It was found in a shrub that wds 30 metres from fine appellant's hocfse. The firearm was identified in court by Pwl as being the one the appellant was carrying when he shot her husband. In his defence, the appellant denied committing the offence. He said on the material day, he did not leave his house in Musamba Village. He also denied being the owner of the firearm or leading the police to its recovery. After considering all the evidence before her, the trial Judge found that Pwl's observation of what happened when her husband was shot was good and reliable; she knew the appellant prior to the incident and it was not dark. She found that her evidence required to be corroborated because Pwl was a witness with a possible interest of her own to serve. This was on account of her being the wife of the deceased person. The trial Judge also found that her J4 evidence was corroborated by the evidence of the arresting officer that the appellant led them to the recovery of the firearm that was used to kill her husband. The trial Judge found that the case against the appellant had been proved beyond all reasonable doubt and convicted him. He was sentenced to death on account of there being no extenuating circumstances. The appellant has advanced two grounds of appeal and these are: A . 1. The learned.trial Judge misdirected herself when she held that Pw2 was .> -J- - > ‘ * led to the recovery of the gun by the appellant which finding is not supported by the evidence on record; and 2. The learned Trial Judge erred in law and in fact when she convicted the appellant on the uncorroborated evidence of Pwl, a single identifying witness who was found to be a witness with a possible interest of her own to serve. At the hearing, Mr. Siatwinda indicated that he was going to rely on the heads of arguments filed on behalf of the appellant on 10th January 2017. The respondents took a similar approach, they decided to rely on their response filed on 16th January 2017. J5 In support of the 1st ground of appeal, Mr. Siafwinda pointed out that according to the arresting officer, Pw2, the appellant only led the police to a village where a firearm was recovered. It was found 30 metres from his house. This witness did not say the appellant led them to the firearm. He submitted that this being the case, there was misdirection when the trial Judge found that appellant led the police to the recovery of the firearm as the finding is not supported by the evidence. Coming to the 2nd ground of appeal, Mr. Siafwinda referred to the cases of Kajnbarage Mpundj/ Kaunda v Th^ People (1), Singon Malambo CJnoka Chipango v The People (2) and Chipango and Others v The People (3) 'and submitted that having rightly found that Pwl was a witness with a possible interest of her own to serve, the trial Judge should not have convicted the appellant in the absence of evidence corroborating her testimony. He also referred to the case of Isaa Mwasumbe v The People (4) and submitted that in the absence of independent evidence connecting the appellant to the offence, it was incompetent for the court to convict him on the uncorroborated evidence of Pwl. Mr. Siafwinda also submitted that Pwl's identification evidence was not reliable because it was contradictory. In one breath she said she was in the house when she heard the gunshot and that when she came out, she saw the appellant J6 holding a firearm. But in another, she said she only saw people jumping on top of her late husband that day. He argued that these contradictions go to the root of her identification evidence and raise doubts in the reliability of her observation; it was not good but poor. Finally, he urged the court to allow both grounds of appeal, quash both conviction and sentence and set the appellant at liberty. In response, Mrs. Mulenga indicated that a single response would be advanced against both grounds of appeal. She submitted that it is competent for a court j j a A to convict on the evidence of a single identifying witness provided that it is clear~ and satisfactory. Where it is not the case, a conviction can still be anchored on the evidence of such a witness if it is corroborated. She referred to the case of Phiri and Others v The People (5) and submitted that odd coincidences can provide supporting or corroborative evidence. In this case, it was an odd coincidence that the firearm used to kill Winford Matafwali, was found 30 metres form the appellant's house. She also referred to the case of John Mkandawire and Others v The People (6) and submitted that the recovery of the firearm provided a supporting link or “something more" to Pwl's testimony. J7 As regards the state's case being anchored on the evidence of a single identification witness, Mrs. Mulenga referred to the cases of Isaa Mwansube v The People (4), Chimbini v The People (7) and Mwansa Mushula and Others v The People (8) and submitted that a court can convict on the evidence of a single identifying witness where the possibility of an honest but mistaken identification has been ruled out. In this case, such possibility is ruled out by the period of observation and the fact the appellant was previously known to the witness. In conclusion, Mrs. Mulenga submitted that since Pwl's 'evidence was corroborated, the appeal should be dismissed and the conviction and sentence upheld. We considered the submissions of the parties on both grounds of appeal. We have also looked at the evidence before the trial court and the findings of the trial Judge. The submission in support of the 1st ground of appeal is that the finding that the appellant led the police to the recovery of the firearm is not supported by the evidence that was before the court. We have looked at the evidence of Pw2, the only police officer, who gave evidence during the trial. Pw2’s evidence was that the appellant led the police to his village and it is from that village that the J8 firearm was recovered. Nowhere in his evidence does he state that it is the appellant who led him to the shrub where the firearm was recovered. It cannot, in the circumstances, be said that the appellant led the police to the recovery of the firearm. There is no evidence of where this shrub was in relation to the other houses in the village and who actually took the police to the shrub. This being the case, we agree with Mr. Siafwinda that there was misdirection when the trial Judge found that the appellant led the police to the recovery of the firearm. The finding is not supported by the evidence before the court and the 1st ground of appeal succeeds. a Coming to the 2nd ground of appeal, it was submitted that Pwl's evidence was not credible because it was contradictory. It was also submitted that since she was a suspect witness, her evidence required corroboration. The respondent's position is that Pwl's evidence that the appellant was the shooter is corroborated by the recovery of the firearm from a shrub 30 meters from his house. We have reviewed the testimony of Pwl in chief, under cross examination and when she was re examined. We don't find her evidence to be contradictory. What Mr. Siatwinda has done is to cherry pick portions of her testimony in chief and under cross examination and submit them as being contradictory. It is our J9 view that had he looked at all the evidence both in chief and under cross examination, he would have not come to that conclusion. Pwl did not tell the court that when she came out of the house she saw her husband's killers jump over his body and run off. What she said was that after hearing the gunshot, she came out of the house and found the appellant carrying a firearm. After a brief conversation between him and his accomplices, they jumped over her husband and fled. It cannot, on this evidence, be said that her testimony on how she identified the appellant was contradictory. We find that Jbie trial judge cannot be faulted Jor finding that hj^r identification evidence.yas good and reliable. ■ ‘ In support of the 2nd ground of appeal it was also argued Pwl’s evidence required corroboration because she was a witness with a possible interest of her own to serve. In support of that proposition reliance was placed on the case of Kambarange Mpundu Kaunda v The People (3) and other cases. In the case of Yokoniya Mwale v The People (11), the Supreme Court, considered a number of its previous decisions on witnesses with a possible interest of their own to serve and clarified the law. On page JI7 of their Judgment, Malila JS, observed as follows: J10 “we ought however, to stress, that these authorities did not establish, nor where they intended to cast in stone, a general proposition that friends and relatives of the deceased, or the victim are always to be treated as witnesses with an interest to serve and whose evidence therefore routinely required corroboration...................................................................................... The point in all these authorities is that this category of witness may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the accused. Once this was discernable and only in those circumstances, should the court treat those witnesses in the manner we suggested in the a Kambarage case. ” A A £ * In this case, the trial Judge came to the conclusion that Pwl was a witness with a possible interest of her own to serve solely on the ground that she was the wife of the deceased person. There was misdirection. As was pointed out in the case of Yokoniya Mwale v The People (11), the evidence of a witness does not become suspect merely because she is a relative or a friend. There must be evidence on which the court is made to come to that conclusion. Evidence that a witness was detained in connection with the offence or was a suspect, can be a basis for such conclusion. JI 1 Consequently, we set aside the finding that Pwl was a witness with a possible interest of her own to serve or a suspect witness. Her evidence must be treated like the evidence of any other single identifying witness. In the case Sammy Kambilima Ngati Mumba Chishimba Edward and Davy Musonda Chanda v The People (8), it was held, among other things, that: "If is settled law that a court is competent to convict on a single identifying witness provided the possibility of an honest mistaken identity is eliminated” Further, as was pointed out by Mrs. Mulenga, the Supreme Court, Isaa ^Awansube v The people (4), observed that: z "Usually in the case of an identification by a single witness the possibility of an honest mistake cannot be ruled out unless there is some connecting link between the accused and the offence which would render a mistaken identification too much of a coincidence, or evidence such as distinctive features or an accurately fitting description on which a court might properly decide that it is safe to rely on the identification (Bwalya v The People (3)); but where there is good quality identification evidence from a reliable single identifying witness if is competent for a court to convict even in the absence of other evidence to support if. ” It follows, that the evidence of a single identifying witness only requires corroboration if it is not of “good quality”. In this case, the trial Judge found that Pwl’s evidence was of good quality. Pwl knew the appellant and there was sufficient lighting for her to identify him. We also note that she did not identify J12 him through a “fleeting glance”, the appellant and his accomplices talked to each other in front of her before they fled. As we have already stated, the trial judge cannot be faulted for her finding on the quality of Pwl's identification evidence. The 2nd ground of appeal therefore fails. Though we allowed the t st ground of appeal and found that the appellant did not lead to the recovery of the firearm, this appeal fails because we have found that Pwl's evidence was of good quality and did not require corroboration. The conviction and sentence of the lower court are upheld.