James Mulenga v The People (Appeal 139 of 2018) [2019] ZMCA 13 (28 February 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal A. PPEAL No. 139/2018 BETWEEN: JAMES MULENGA AND THE PEOPLE APPELLANT RESPONDENT Coram: Mchenga, DJP, Chishimba and Mulongoti, JJA On 19th February 2019 and 28th February 2019 Fo.r the Appellant: C. S.iatwinda, Legal Aid Counsel, Legal Aid Board For the Respondent: N. T. Mumba , Acting Chief State Adv·ocate, National Prosecution Authority JUDGMENT Mchenga, DJP , delivered the judgment of the c.ourt. Cas e s refer r ed to : l. Joseph Knox Simwanza v The People [1985] Z . R. 15 2 . Mutambo a '.nd Five Others v The People [1965] Z. R. 15 3. Edward Sinyama v The People [1993-1994] Z . R. 16 ' ' I -J2- 4. Mwewa Murono v T1he People [2004} z . R. 207 5. R v Perry [ 1 909] 2 K. B. 697 6. The People v Fes:tus Nakabundi [2010] 1. Z. R. 349 ?. William Mazuba Chipango v The People [1978] Z. R. 304 8. George Musupi v The People [1978] Z. R. 271 9. Jack Maulla and Asukile Mwapuki v The People [1980] Z. R. 119 10. Kahilu Mu goc::hi v The People CAZ Appeal No. 138 of 2014 11. Simon Miy oba. v The People [1977] Z. R. 218 12. Yekonia Mwale v The People SCZ Appeal No. 58 of 13. Chiyovu KaSi:UnU v The People [1978] Z. R. 252 14. Kalunga v Tlh.e People [ 1988-89] Z. R. 90 15. Webster Kay.i Lumbwe v The People [1986] z . R. 98 Le gislat ion referre d to: 1. The Penal Code , Chapter 87 of the Laws of Zambia 2. The Criminal Pr,ocedure Code, Chapter 88 of the Laws of Zambia 3. The Juveniles A•~t, Chapter 59 of the Laws of Zambia Works re ferred to : -J3- 1. Archbold: Pleadiirig, Evidence and Practice, 43rd Edition , Swe et& Maxwell, The appe llant , a p pearE?d before the High Court sitting at Kabwe, on an information containing one count of the offence of murde r contrary to section 200 of the Penal Code. It was alleged that on 7th June 2016, he murdered Prisca Mwape. He denied the charge, but was convicted following a trial . The court then imposed capital punishment on him . The cir cumstances su rrounding the commission of the offence are that on 7 t~ June 2016, at night, Ashard Malama wa s asl eep at his girlfriend's house at Nakucheche Fi shing Camp , in Mumbwa. His girlfriend, Prisca Mwape, was, be fore they divorced, the appellant's wife. The appellant , who was a rmed with a knife, forced his way into the house and demanded that his former wife go with him, but she refused . Ashard Malama attempted to disarm the appel lant but fai led, suffering injury to his hands in the process . Fearing that he would be stabbed, he fled from the house. At about 11pm, the same night, Diance Shangati, who was Prisca Mwape ' s uncle , received a phone call informing him that hi s niece, had been stabbed. In the company of Chrisfo::-d Kayoba , a relative, they went to the house where Pr isca was. They found her in a pool of blood and g asping fo r breath. On being questioned about what had happened, she told them that she had been stabbed by the appella:1 t . Di ance Shangati, Ch risford Kayoba and other persons, went to the appellant's house, which was in the same village a n d apprehended him . They also searched his house for the knife that was used to inflict the injury, but did not find it. They took hi m to where Prisca was. Prisca, who was weak , confirmed that it was the appellant who had stabbed her and she also lamented that her death would result i n her ch i ldren suffering. She died 20 minutes later whi le being ta ken to the hospital. The appe llant 's wife , who was called as a prosecution witness, recal led h o w the appellant left home on 6th June 2016, after i nforming her that he would be away for 5 days. A day late r , on 7th June 2016, he returned home just before midnight. Not long thereafter, a group of people came loo king for him, they claimed that he had stabbed someone. They a p prehended him and searched their house for a kn ife . They d i d not find it. The following morning, she discovered a bl oodied knife which she handed over to t he poli ce . In his d efence, t he appellant denied stabbing Prisca Mwape. He told the t rial judge that on 7th June 2016, in the even ing , h e l e ft his house to see his uncle. He did not find h i m and s o he returned home. Soon after he returned, a mob a pprehended him and they accused him of having s tabbed his former wife. They searched his house for a knife, but found nothing. Th,e t ,rial judge found that it was not in disput,e that Prisca Mwape died from the injuries she suffered after being stabbed. She considered the fact that Diance Shangati, Chrisford Kayoba a nd the appellant's wife, were related to Prisca Mwape and ruled out the possibility t hat they had a reason to falsely implicating the appelLant. Conseque ntl y, she found their evidence to be credible. She accepted Diance Shangati and Chris ford Kayoba's evidence that before she died, Prisca Mwape told them that she was stabbed by the appellant. She also accepted . Ashard Ma1 ama's evidence that the appellant, who was armed with a knife, attacked him while he was in the company of Prisca Mwape .. That was shortly before she was found injur,ed. Four grounds of appeal hav,e been advanced in support of the appeal. However, before we deal with them, it -J7- necessary that we say something on the trial judge's decision t o a l low the prosecutor cross-examine the appellant using the statement he made to the police. In the course of investigating this case, the appellant gave a statement to the police after being warned and cautioned . The s tatement was not produced into evidence during the prosecution's case. However, when the appellant took the stand, the trial judge allowed the prosecut or to c r oss-examine him using the statement. It was suggested that his evidence in court was in conflict with what he had told the police. In a criminal trial, while the prosecutor is at large to cross examine an accused person or his witness, on any matter that is relevant to the case, a document or any other artic le, that was not tendered into evidence during the prosecution's case, cannot be used in aid of such cross examination. Only documents or articles that have been produc ed and admitted into evidence as exhibits, can be used for cross examination. -JS- A document or article that was not produced by the prosecut or b efo r e the close of their case, can only be introduced i. nto evidence through section 210 of the Criminal Proc:::edu 1:e Code. It provides as follows: "If the a ,ccused person adduces evidence in his defence introducing ne:w a matter which the advocate for the prosecuti<)n c o uld not by the exercise of reasonable diligence havt~ foreseen, the court may allow the advocate ~:or the prosecution to adduce evidence in reply to c ontradict the said matter.,, The import o f t h e provision was considered in the case of Joseph Kn•::>x S i .mwanza v The People1 • The Supreme Court held that b efo r e the prosecution can be allowed to introduce su ch ev idence, it must be demonstrated that the need for the evid ence could not have been foreseen until after the accused person or his witnesses had testified. In this case , the statement was in the possession of the prosecut or and therefore available before the commencement of t he trial and it can be said that it was foreseea ble that the appellant could have told the court somethi~g d iffe r ent from what he told the police. " -J9- Further, the appellant had not closed his detence, at the point when the prosecutor was allowed to introduce the contents of the statement into evidenoe through cross examination . The only route for the introduction of ev.idenoe after the clos,e of the prosecution·' s case, was therefore not available to the appellant .. Having chos 1en not to produce the st.at,eme nt during the prosecution's c a se, the prosecutor should not have been allowed to sneak the contents of the statement into evidence through cross examination. Given that the introduction of a confession statement may be subj ect to the need to prove, beyond all reasonable doubt, that it was made fr,eely and voluntarily ., the procedure adopted to introduce the contents of the document in this case, was highly undesirable. Though it was wrong for the trial judge to allow the appellant to he cross examined using the s t atement, we find that he suffered no prejudice. This is because what -J1D- he said in response to that cross examination, was not tak,en into account, when the trial judge was considering the c ase against him. Reverting to the grounds of appeal, it is contended that, Loveness Chama, the appellant's wife, should not have been called as a prosecution witness without the appellant's consent; that Diance Shangati and Chrisford Kayoba ' s evidence that Pris ca Mwape tol d them that the appellant stabbed her should not have been received because it was hearsay; that since Diance Shangati, A shar d . Malama a.nd Chris ford Kayoha, w·e .re w.i t.nesses with a possible interest of their own to serves their evidence should hav·e be,en co·rroborated; and that there was dereliction of duty when the knife recovered by the appellants ·' wife was not subjected to forensic ,examination. In support of the argument that Loveness Chama should not have be,en call 1ed as a prosecution witness without the appel l ant ' s approval, Mr. Siatwinda re fe rred to section -J11- l ,51 of The Criminal Pr,oc,edure Code. He then submitted that since she was married to the appellant, she should not have been allowed to te s tify without his consent . In response, Ms . Mumba conceded that Loveness Ch ama could not have been called as a prosecution witness without the consent of the appellant . Sect.i,on 15:1 o:f the Crimina.l . P,r ,ocedure Code , deals with the admi ssibi l i t y of the evi de n ce of a spo use and it provides as follows : (l) . In ,any inquiry or tria1~ the wif,e ,or :h'usb,and ,of the p ·er.s,on ,.charged shall he a eompe·tent witn,ess for the pr1osecu t .i ,on ,o.r defen,ce wi tho"ll't the ,con.sent 0£ su,ch person- i(a:) 'in any ca;s :e where t:he wife o .ir lbus'baind •of a person :char ged may ., under any .law i 1n f or,ce for the ·time being, be c.a.11.ed as ,a wi.tne,ss without the (C:onsent o ·f ·such perrso,n ,; {b) i in a.ny c ,ase wher,e su:ch per,so:n i ·s cb.ar,ged with an .offence under Chap·t ,er XV o .f the P,enal Code or with bi,ga:m.y; i{c} .i ,n ,Emy case wher,e such p :e :rson .i.s charged ·in resp:ec,t of an ,acrt or omission affecting the ;p ,ers,on o.r p:rope:rty of th,e wi f e or husband of .such p erson o :r tlhe children of either of them. (2) -Jl2- It is c lear fr o m this provision that the consent of an accused pe rson , before a spouse is called by the prosecu=or , is d ependent on the charge he is facing. In the fir st inst a nce, subsection (a) provides that the consent wi ll no t be required if any statutory provision allows it . Secti <:>n 128 of the Juveniles Act provides as follows: "In any proceedlings against any person for any scheduled of fence , the hu1sband or wife of the person charged shall be a competent witness for the prosecution or defence without the coriisen t of such person. 11 The applicable s chedule, which is the First Schedule to that Ac t, l ists the following offences: "-The mUJc:-der or;· manslaughter of a juvenile; -Infanticide; -A.n.y off,ence aqainst sections 136 or 1 71 of the Penal Code ; -Any offE,mce against a juvenile under sections 137, 155, 156, -15 '7, 158, 159, 199, 247 or 248 of the Penal Code; -A.n.y off«ance under section 46, 47, 48, 50 or 54 of this Act; -Any offence un.der section 8 of the Suicide Act where the persi::m who killed himself is a juvenile;" • Further, under subsection (b) of the provision, a spouse can be called as a prosecution witness without the consent of the accused person where he is charged with the offence of bigamy or any offence in Chapter XV of the Penal Cod,e. Chapter XV of the Penal Code deals with offences against morality and they include, rape, indecent assault, defilement, procuring for prostitution, a b ortion, unnatural acts and incest. The third cluster of offences to which the provision is applicablE? are those set out in subsection (c) . It relates to an y offence where a spouse has suffered personal injury or damage has been occasioned to their property . The pr ovision extends to occasions where injury is inflicted to a child of either spouse or damage is caused to the property of such a child. In a case where a man is charged with the murder of a person who is not his child or wife, the evidence of his wife i:: only admissible, without his consent, if the -J14- victim i s a juve nile; see the schedule to section 128 of the Juveniles Act. In this case, it does not appear that Prisca Mwape wa s a juvenile. Though there is no direct evidence of her a ge, the post-mortem report gives her age as an "adul tn. On this evidence, it can be said she was not a juveni le. In the c ircumst a nces, we agree with the submissions by both coun se ls, that the testimony of Loveness Chama should not have been received because the appellant did not cons ent to h e r testifying. The first ground of appeal succeeds. The second groun d of appeal is to the effect that the evidence of Dianc e Shangati and Chrisford Kayoba should not have be en re c eived because it was hearsay. Reference was made to the cases of Mutambo and Five Others v The People2 , Edward Sinyama v The People3 and Mwewa Murono v The People4 • Mr. Siatwinda then submitted that since Prisca Mwape's s t atement that the appellant stabbed her -J15- was not made contemporaneous to the assault, it could not be part of res gestae. Ms . Mumba's response was that the statement was admissible as a dying declaration. She referred to the cases of R v Perry5 and The People v Fes t u s Nakaundi 6 in support of the proposition . We agree with Mr. Siatwinda's submission that the statement by Prisca Mwape that she was stabbed by the appellant could n ot have been admissible as res gestae because it was made way after the stabbing. However, the trial judge did not find the statement admissible on that basis . She assigned no reason for admitting it , other than finding that the testimony of Diance Shangati and Chrisfold Kayoba was credible. Notwithstanding, we agree with Ms . Mumba' s submission that a statemen t by a deceased person, on the circumstances leading to her death, though not -, -J16- contemporane ous to the act causing death, can be admissible a s a d ying declaration. According to Eyre C. B. in the ca se of R v Woodcock, cited with approval in R v Perry5 , at 701 , dying declarations are admissible because: they are declarations made \\The general principle on which this species of evidence is admitted is that in extremity when the party is at a point of death, and when every hope of this world is gone: when every motive to falsehood i s silenced, and the mind is induced by the most powerful considerations to speak truth: a situation so s o lemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice" the Further, the editors of Archbold: Pleading, Evidence and Practice, 43rd Edition, paragraph 11-17, have pointed out that dying decla r ations are admissible where the judge is satisf ied that the deceased was conscious of being in a dying sta te at the time they were made and she was 3ware of her awful situation. There was e viden c e before the trial judge that at the ::. ime Pri sca Mwa pe made the statement, she was weak, having b led, he a vily, from the stabbing. She also • lamented that he :r death would result in her children suffering . Sh e d ied 20 minutes later while being taken to the hospital. It is our v iew t~a t properly directing herself, the trial judge would stil l have admitted the statement as a dying declarati o n . The evidence before her clearly indicated that Prisca Mwape appreciated that death was eminent and there wou l d h ave b een no basis for her to falsely accuse the appellant fo r the attack. We agree with Ms. Mumba that Pris c a Mwape ' s statement on who stabbed her, though not made contempo raneous to the attack, was admissible a s a dying d e clara tion. We find not merit in this ground of appeal . Coming t o t he a r gument that Diance Shangati, Ashard Malama and Chris f ord Kayoba' s, were witnesses with a possible interest of their own to serve, Mr. Siatwinda referred to the c a ses of William Mazula Chipango v The People7 a nd G,eorge Musupi v The People8 • He then pointed out that Diance Shangati was Prisca's uncle while ' -Jl8- Chris ·ford Kayoba was her nephew . Further, Chris ford Kayoba's testimony that Prisca Mwape told them that she was attacked by the appel l ant should not have been accepted because he did not mention it in an earlier statement to the police. In the case of . Ashard Malama, he was the last person to be with Prisca before she was found injured .and th,erefore, could have stabbed her . Mr . Siatwinda also argued that since Diance Shangati and Chrisford Kayoba ' s testimony was questionable, other prosecution witnesses should have been called to corr oborate their testimony. He referred to the cas e of Jack Mau11a and As·u.lkile Mwapuki v The . Peop.l e '9 in support of the proposition . In r esponse to these arguments, Ms . Mumba refe.rred to our decision the case of '. Kabi].u Mugochi ·v The Peo:p1e10 and submitted that even though Diance Shangati and Chrisford Kayoba were related to Prisca and . Ashard Malama was in an intimate relat i onship with her , they could not , on that bas is , only be classified as witnesses with a possible inter es t of their own to serve. As regards the case of Jack Maulla and Asukile Mwapuki v The People9 , she submitted tha t it was not applicable to this case because t he t est i mony of Diance Shangati and Chrisford Kayoba wa s not discredited in cross examination. We will f irst dea l with Chrisford Chiyoba's inconsistent s tatement. In the case of Simon Miyoba v The People11 , the Supreme Court set out the approach to be taken wher. dealing with a statement made outside court. It was held, inter ali a , that: "(i) It is neces sary for the trial court to have before it formally the previous statement so that it can compare it with the evide nce given in court and assess for itself the seriousness of the alleged discrepancies. (ii) Unless the p revious statement has been made part of the record in one or other of the methods available, an appellate court has no basis on which to assess how serious the alleged discrepancies are and what weight to attach to the evi dence of the witness." We have examined the record of appeal and find that Chrisford Chi yoba' s alleged inconsistent statement was not produced in evi dence. As matters stand, all there is . • • -J20- before u s is t he suggestion made to him, in cross examinati o n, tha t he made no mention of the revelation in his s ta tement to the police. The witness denied the suggestion . In t h e absence of the statement, we find that there is no evidence to support the claim that Chrisford Chiyoba, previously made a statement, on the issue, that was incon s istent with what he said in court. Coming to the a r gument that Diance Shangati, Chrisford Kayoba and Ashar d Malama were witnesses with a possible interest o f thei r own to serve, the Supreme Court, in the case of Yokonia Mwale v The People12 , made it clear that the mere f act tha t a person is a relative, does not make them a wi tness with possible interest of their own to serve. The re mus t be evidence to support the proposition. Having exa mined the record, we are satisfied that the trial judge cannot not be faulted for coming to the conclusion that they were not. • -J21- As regards Ashard Malama, we equally find no evidence to support the claim that he was a suspect witness. The mere fact that he was the last person to be seen with Prisca Mwape before she was found injured cannot lead to that conclusion. It wo uld have probably been the case if there was evidence of him quarrelling with her the last time they were together or that he had been detained as a suspect for the murder. Such evidence is not available. It is our findin g that the trial judge rightly found that Diance Shangati, Chrisford Kayoba and Ashard Malama were not witnesses with a possible interest of their own to serve. We find n o merit in this ground of appeal and we dismiss it . In relation to t h e last ground of appeal, Mr. Siatwinda referred to the c ase of Chiyovu Kasamu v The People13 and submitted that tte failure to subject the knife recovered from the appellant's house to DNA and fingerprint examination, amou nted to dereliction of duty. -J22- In respons e , Ms. Mumba referred to the case of Kalunga v The People 1 4 and submitted that while proof that there was a de r e l ictio n of duty leads to a presumption that evidence favour a ble to the appellant would have been found, su c h presu mption is rebuttable by strong evidence implicating the a ppellant. She also referred to the case of Webster Kayi Lumbwe v The People15 and submitted that as an app el l ate court, we can only overturn the trial judge's finding t h at Ashard Malama was a credible witness if we fi nd that it was erroneous. We agree with Mr. Siatwinda that the failure to subject t he knife to any examination without any good explanat ion, did a mount to a dereliction of duty. But as was correctly submitted by Ms. Mumba, proof that there was a de re l i ction of duty, only leads to a presumption that evidence favo urable to the appellant would have been d iscovered h ad the knife been examined. In this case, the p resumpt i on is tha t the blood on the knife was not for Prisca Mwape or that the finger prints on it where not the appe ll ant. However , the bloodied knife that was produced in court was linked to t h e appellant through his wife. She told the court that she recovered it in their house, the morning after t h e appellant's return. Having found the appellant ' s w:.. f E:?' s evidence was inadmissible, her evidence of where the knife was found falls off. The knife, cannot, c herefore be linked to the appellant or the commission o f the offence, in anyway. Having found tha t the trial judge cannot be faulted for finding that Dian ce Shangati, Chrisford Kayoba and Ashard Malama wer,e not witnesses with a possible interest of their own to serve, and therefore credible witnesses, we find that it wa s competent for the court to convict on their evidence. In the face of evidence from Asha rd Malama t h at the a ppellant, armed with a knife, burst into a house where he was with Prisca Mwape, and the dying -J24- decl aration by Prisca Mwape, naming the appellant as her assa i l ant, we fi nd that the trial judge correctly found that t h e prosecution had proved the case beyond all reas onab l e doub t . We f ind no me r i t in this appeal and dismiss it. The sent ence impos e d by the trial judge is maintained . F . M. Chish imba COURT OF APPEAL JUDGE J. Z. Mulongoti COURT OF APPEAL JUDGE .... ~ ' ..