John Matele Sikota v The People (APPEAL NO. 10/2016) [2017] ZMCA 163 (17 March 2017)

IN THE COURT OF APPEALFOR ZAMBIA APPEAL NO. 10/2016 HOLDEN AT LUSAKA (Criminal Appellate Jurisdiction) BETWEEN: JOHN MATELE SIKOTA AND THE PEOPLE Coram: Chisanga JP, Chashi and Mulongoti, JJA On 17th January, 2017 and 17th March, 2017 For the Appellant: Mr. C. Siatwinda, Legal Aid Counsel For the Respondent: Mrs. C. M. Hambayi, Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT • MULONGOTI, JA, delivered the Judgment of the Court. Cases referred to: 1. Haonga v. The People (1976) ZR 200 2. Mutambo and 5 others v. The People (1965} ZR 15 CA 3. Honest Solopi v. The People (1974) SCZ No. 11 of 1974 4. Molley Zulu, Abraham Masenga and Smiling Banda v. The People (1978) ZR 277 5. Machipisha Kombe v. The People SCZ No. 27 of2009 6. Mupeta and Chola v. The People SCZ Appeal No. 137/2012 -Jl- 7. Wilfred Sakala v. The People (1987) ZR 23 8. Manonqo v. The people (1981) ZR 152 9. Haamenda v. The People (1977} ZR 184 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia John Matele Sikota, the appellant herein, was charged in the Livingstone High Court, on one count of aggravated robbery contrary to section 294 (2) of the Penal Code which provides for the death penalty where the offensive weapon or instrument used during the robbery is a firearm. Despite his plea of not guilty, the appellant was convicted and sentenced to death. The facts before the High Court are that, on the 15th of June, 2015, Dennis Mwale (PW4) recruited the appellant and gave him the car 'P4' to drive as a taxi. This was around 12:00 hours. PW4 described the car 'P4' as a Maroon Toyota Corolla, registration number IT 5592 with clear and not tinted windows. • On the same day of 15th June, 2015, Philip Sakala (PWl), Acklas Daka (PW2) and Samuel Baloyi (PW3), were attacked at gunpoint by three people who were armed with AK47 rifles. This was at around 23:00 hours at God Knows bar owned by PW2 and located in -J2- .. Dambwa, Livingstone. The three witnesses narrated that two of the attackers entered the bar while one remained by the window outside. PW2 threw a chair at the assailants and he struggled for the gun with one of them as he believed it was a toy gun. In the process, the assailants ran away and PW2 and PW3 chased after the assailants while PWl remained standing at the door. Two of them ran to their car but one who happened to be the appellant returned and fired the gun which caused PW2 and PW3 to retreat and hide. The appellant fired shots at PWl through the bar door from which PWI sustained injuries as per his medical report, 'PS'. As PWl lay on the ground, weak, the appellant stole a laptop and a cash box containing cash from the counter and rushed out of the bar. The witnesses narrated that he got into a car, a Maroon Toyota Corolla with tinted windows, 'P4', which sped off. At that time, PW2 and PW3 were hiding nearby observing what was • happening. PWI also testified that he knew the appellant as a former school mate of Linda Secondary School in Livingstone. We do not intend to restate their evidence in detail, suffice to state that some contradiction emerged among the three as to the role the appellant played. PW2 and PW3 identified the appellant as -J3- the man PW2 struggled with for the gun and one of the two who had entered the bar. PWl said the appellant did not enter the bar but remained outside at the window. Constable Alex Mulela (PWS) attested to how the appellant was found in possession of the motor vehicle, 'P4', and apprehended a day after the robbery. PW6 narrated how the identification parade was conducted leading to three witnesses that is, PWl, PW2 and PW3, pointing out the appellant as one of their assailants. The three identifying witnesses maintained that during the robbery there was sufficient lighting inside and outside the bar premises and their attackers never wore masks as such they were able to identify them. PW7 led a team of police officers who recovered two empty cartridges at the crime scene which PW8 took for ballistic examination in Lusaka, per report of the Forensic Ballistic Expert, 'P6'. In his defence, the appellant confirmed that he received the vehicle, 'P4', from PW4 at 12:00 hours on 15th June, 2015. He was engaged to drive it as a taxi. He stated that after receiving the vehicle he went straight and parked it at his mother's house awaiting instructions from his boss. The following day around 13:00 -14- • hours, as he was going to get the car registered, he was apprehended and detained and the vehicle was impounded by police officers. A few minutes later, he was taken outside police cells and he heard police officers asking three people whether they knew him. The three denied knowing him and said it was their first time seeing him. The following day, the same people pointed him out at an identification parade as the person they had seen at the crime • scene. After evaluating the evidence, the learned trial judge found that there was no dispute that PWl was injured when one of the intruders fired a gunshot through the bar door. He further found that the motor vehicle which was used by the people who attacked the three prosecution witnesses (PWl, PW2 and PW3) was in the possession of the appellant. The three identified the appellant at the identification parade. PWl 's testimony that he knew the appellant prior to the incident remained unchallenged. The trial judge also accepted that the appellant was placed at the scene of the crime by • the three witnesses (victims). The learned trial judge noted the contradiction by the three eye witnesses as to the role the appellant played. Relying on the case of -JS- .. Haonga and others v. The People 11>, he found that this was immaterial as the appellant and others were executing a common purpose. Section 22 of the Penal Code was cited as authority. The judge also relied on the case of Mutambo and 5 others v. The People 121 that 'common purpose need not be by express agreement or otherwise premeditation. Express agreement is not necessary.' Accordingly, he found that the appellant knew the consequence of his actions when he together with his friends took guns and went to PW2's bar and staged a robbery. The trial judge established that the motor vehicle, 'P4' which was used by the people that attacked the prosecution witnesses was in the possession and control of the appellant. He was, therefore, satisfied that the appellant was one of the people who staged the robbery at PW2's bar and stole a lap top, money and injured PWl. Accordingly, the appellant was convicted as charged. Dissatisfied with the judgment of the trial court, the appellant has now appealed to this Court on one ground couched as follows: The learned trial judge misdirected himself when he held that the prosecution had proved the case beyond all reasonable doubt against the appellant when the evidence -16- • on record raises doubts and discloses material discrepancies regarding the identification of the appellant as the offender. Mr. Siatwiinda, who appeared for the appellant, filed written heads of argument which he relied on entirely at the hearing of the appeal. He submitted that the evidence regarding the identification of the appellant as the offender was given by PW 1, PW2 and PW3. The learned trial judge rightly found in the judgment at page 159 of the record that there was some conflict in the identification of who of the three people fired the shot that injured PW 1 and stole the lap top and money in issue. It was submitted that the evidence of PWl, during cross examination, was that when the assailants went to the bar that night, two of them entered whilst the other one remained outside. • The one who remained outside ran towards the compound and is the one who later came back and fired the gun shot at him and walked away with the money and laptop. Counsel argued that this evidence contradicts PW2 and PW3 who stated that the appellant was one of the two people who entered the bar. Therefore, it is -J7- unclear whether the witnesses actually saw the appellant and his involvement in the offence. The case of Haonga v. The People, supra, was cited as authority that: "Where two or more persons are known to have been present at the scene of an offence and one of them must have committed it, but it is not known which one, they must all be acquitted of the offence unless it is proved that they acted with a common design." In view of the above, counsel argued that since it is not known who among the assailants must have committed the offence, a conviction cannot lie against anyone of them. It was contended that the identification of the appellant by PWl is unreliable as the opportunity for a good observation did not exist. The moment was characterized by violence and as soon as the assailant gained access inside, PWl was already lying down. Therefore, the possibility of an honest mistake cannot be said to have been ruled out even though PWl alleged to have known the appellant prior to the offence. Counsel placed reliance on the case of Molley Zulu, Abraham Masenga and Smiling Banda v. The People131 that 'although recognition of a person is less likely to -J8- be mistaken than identification of a stranger, even in cases of recognition, the danger of mistake is present and it must be considered.' He also relied on the case of Honest Solo pi v. The People 141 that: "The question is not one of credibility in the sense of truthfulness but of reliability and that the greatest care should therefore be taken to test the identification because it is not only for the witness simply to say that the accused is the person who committed the offence ... " Learned counsel maintained that a perusal of the record will show that PW 1 failed to give any features or unusual marks he claimed to identify the appellant by. He prayed for the Court to allow the appeal, quash the conviction and set the appellant at liberty . In response, the learned deputy chief state advocate, Mrs. Hambayi, who appeared for the respondent, filed written heads of argument which she relied on entirely at the hearing. She argued that the evidence of PWl was clear that it was the appellant who shot at him through the door. He was able to identify him because he knew him prior to the incident. She argued that this negates the -J9- • possibility of an honest mistake being made in identifying the appellant. Counsel submitted that it is an odd coincidence that PWl knew the appellant's real name thereby proving that he was correctly identified at the scene. It was submitted that PWl was able to see the appellant using light from the light bulbs which enabled him to describe his attacker as being short and a bit fat. He was also able to see his face because it was not covered. The identification was tested at a properly constituted identification parade where PWl duly identified the appellant from a lineup of nine men. In addition, PW 1 identified the vehicle which was used during the robbery. It was argued that PW2 also ably identified the appellant as • one of the three assailants who attacked him at the bar. As he wrestled with him at the bar, he was able to see his face which was uncovered. PW3 also saw the appellant at the scene as the person who pointed the gun at him and he described the appellant as being a bit short and a bit fat tallying with what PW 1 said. PW2 and PW3 both described the appellant as having a biggish nose thereby corroborating each other. Counsel added that the two witnesses were able to pick out the appellant at the identification parade and -JlO- they were able to identify the vehicle used in the robbery as being a Maroon Toyota Corolla with a temporary plate, IT5592. It was counsel's contention that any inconsistencies that may appear in the evidence about the role the appellant played do not absolve him from liability. That it is clear the appellant and the other two unknown persons formed a common intention to steal while armed with guns. According to the witnesses, all the three assailants were armed with AK47 rifles and the probable effect of being armed is that the guns would be fired at some point. Counsel amplified that the placing at the scene of the vehicle which the appellant had custody of, proves beyond reasonable doubt, that he was part of the group which attacked PW 1, PW2 and PW3 . PW4 testified that he gave the vehicle to the appellant on 15th June around 12:00 hours and it remained in the appellant's custody. The appellant confirmed this testimony. Thus, the presence of the vehicle at the scene also confirms his presence and further corroborates his identification by the three witnesses. That corroboration is further provided by the arresting officer who testified that upon interviewing the appellant he told him that -Jll- • • the appellant went to the bar on the material night with two of his uncles. However, that he stayed in the car and did not go inside the bar and does not know what transpired inside. This evidence also placed the appellant at the scene and was not challenged. It is odd that the appellant said they were the three of them as stated by the prosecution witnesses that they were attacked by three men. Counsel submitted that this is an odd coincidence as elucidated in • the case of Machipisha Kombe v. The People 151 • In conclusion, it was submitted that the appellant and others unknown were armed with firearms. The firearms were seen by the witnesses and they were used, as evidenced by the injuries of PWl as well as the spent cartridges found at the scene. The cartridges were confirmed by the ballistic report as being fired from an AK4 7, which were the type of firearms seen by the three witnesses. The violence and threats used on the three prosecution witnesses and property having been stolen satisfied all the essential ingredients of the charge of aggravated robbery under section 294(2) of the Penal Code. She urged the Court to dismiss the appeal and uphold the • conviction of the trial court. -112- We have considered the evidence on record, the judgment of the trial court and the submissions by both counsel. The pertinent issue this appeal raises is whether 1n the circumstances of the case the appellant was positively identified as the perpetrator of the crime. Key to this issue is the question whether the danger of an honest mistaken identity was eliminated • and whether the prosecution witnesses' evidence as to identity was, as contended by the respondent, corroborated by the appellant being in possession of the vehicle 'P4' a day after the robbery. Were the contradictions by the witnesses so grave as to be fatal to the prosecution's case as contended by the appellant? The trial judge noted the contradictions or discrepancies by the prosecution witnesses as to the role of the appellant during the robbery. He properly analysed in our view, that the appellant had a common purpose with the others unknown. It is settled law that where there is a common purpose the participants or joint adventurers are jointly liable for all that results from their actions. We are fortified by the Supreme Court decision in Mupeta and Chola v. The People(61 where it restated the doctrine of common purpose that: -J13- "In criminal law, the doctrine of common purpose, common design or joint enterprise refers to the situation where two or more people embark on a project with a common purpose which results in the commission of a crime. In this situation, the participants are jointly liable for all that results from the acts occurring within the scope of their agreement. Each of the parties to an arrangement or understanding is guilty of any crime falling within the scope of the common purpose." Thus whether the appellant is the one who fired the shot that injured PWl then got the laptop and money from the bar (or was even not present at the scene) is immaterial, so long it is proved that he was acting together with others whom he had a common purpose with to rob the bar. Section 22 contemplates that "liability will attach to an adventurer for the criminal acts of his confederates, which will be considered to be his acts also, • • if what those confederates have done is a probable consequence of the prosecution of the unlawful common design", as elucidated by the Supreme Court in Wilfred Sakala v. the People7 . In the circumstances of this case, undoubtedly, the three people who attacked and robbed the three victims at God Knows bar had a common design or purpose. -J14- However we hasten to state that in the circumstances of this ' case, we do find merit in the appellant's arguments and authorities cited that the identification of the appellant was weak due to the fact that the incident happened at night, the atmosphere was characterized by violence and fear as the witnesses had guns pointed at them. In Manongo v. The people8 , the Supreme Court observed that: "the finding of the trial commissioner that the identity of the appellant did not depend entirely on the evidence of PWl alone, that the evidence of PWl was fully corroborated by the evidence of PW2 and that it was also supported by the evidence of PW3 and the recovery of 'P3' the hat was sufficient to negative the defence counsel's submission that the trial court had misdirected himself for accepting without questioning the evidence of identification by PWl and PW2 .... " • In casu, as canvassed by the respondent's counsel and found by the trial judge, the appellant was found in possession of the car 'P4' a day after the robbery. The three witnesses corroborated each other when they described the vehicle 'P4' as a Maroon Toyota -JlS- Corolla with registration number IT5592 and tinted windows. PW4 testified that the windows were not tinted when he gave the car to the appellant. Yet within a few hours he tinted them because he had ulterior motives. The evidence is also clear that the scene was a bar and the evidence of the three that there were lights outside and inside is credible. The trial judge rightly accepted this evidence. This fact of being in possession of the car 'P4' soon after e the robbery tends to support the weak identification and to show that the witnesses were truthful when they said that the appellant was among the people that robbed God Knows bar whilst armed with AK 47 rifles and attacked PWl, PW2 and PW3. PWl even sustained injuries after he was shot at as per medical report exhibit PS. In the case of Hamenda v. The Peoplel9 l, the Supreme Court held that: • "Where the quality of identification is good and remains so at the close of the defence case, the danger of mistaken identity is lessened; the poorer the quality the greater the danger. In the latter event the court should look for supporting evidence which has the effect of buttressing -J16- the weak evidence of identification. Odd coincidences can provide corroboration." We are inclined to uphold the conviction, as the appellant's possession of the car used in the robbery a day after, provides supporting evidence to the weak identification and is also an odd coincidence. The appellant admitted having possession of the vehicle the day of the robbery and did not allude to giving it to anyone. All he said was that he parked it at his mother's house which story was rightly rejected by the trial court. • Furthermore, as observed by the court below, PWl 's evidence of prior knowledge of the appellant was unchallenged. Both PW 1 and the appellant are residents of Livingstone and it is very possible he knew the appellant prior to the attack. We find that the learned trial judge was on firm ground when he convicted the appellant as • charged. He drew the correct and reasonable inference that the fact of being in possession of the car that was used in the robbery and the three witnesses placing him at the scene connected the appellant to the commission of the offence. We find the arguments by the respondent's counsel that the testimony of PW6 (the arresting officer) that the appellant told him -J17- that he went to the bar with two of his uncles, but he remained in the car was unchallenged and thus an odd coincidence, to be a misconception. This evidence, if anything, amounts to an admission. It is trite that in such instances the trial court should enquire from an accused person whether he objects to the admission of the alleged confession. If he objects on the ground that it was involuntarily made, the Court should conduct a trial e within trial to ascertain the voluntariness of such a statement by the accused (appellant). The record is clear that this was not done. The trial judge, therefore, rightly ignored that piece of evidence. Having agreed with the trial judge that the contradiction of the three eye witnesses was immaterial and not fatal to the prosecution's case and against the background of the totality of the evidence, we can find no basis that the trial judge misdirected himself as contended by the appellant in his ground of appeal. We wish to comment on the sentence. We find that the trial judge was on firm ground to sentence the appellant to death as the facts established a case of aggravated robbery contrary to section 294 (2) of the Penal Code, against him. -J18- • The ballistic report is clear that the spent cartridges found at the crime scene were tested and proved to be from an AK 47 rifle. The three prosecution witnesses were categorical that their assailants were armed with AK4 7 rifles. We would find no reason to interfere with the sentence as it was supported by the evidence. We therefore, find no merit in the appeal and we dismiss it . • F. M. C JUDGE COURT . HASHI COURT OF APPEAL JUDGE -J19-