Phiri v People (Appeal 36 of 1991) [1991] ZMSC 38 (3 December 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 36 of 1991 HOLDEN AT NDOLA (Criminal Jurisdiction) JOHN PHIRI Appellant -v- THE PEOPLE Respondent • W CORAM: Ngulube, DCJ., Gardnerand Sakala JJ. S., On 10th September and 3rd December, 1991 For the appellant: G. Kunda of George Kunda and Company For the respondent: R. O. Okafor, Acting Principal State'Advocate J U "D GHENT Gardner, AJ. S., delivered the judgment of the court. On the 10th September, 1991 we dismissed this appealand said that we would give our reasons later. We now give those reasons. The appellant was convicted of aggravated robbery. The particulars of the offence were that he, on the 24th October, 1988, at Mufulira, jointly and whilst acting together with another person unknown, did steal a skipper, a wrist watch and K750-00 cash from Emmanuel Chanda and at the time did use actual violence. , • ' The evidence adduced by the prosecution was that the complainant was walking from his home during the late evening when he met two men who told him that they had a bicycle for sale/^loo-00. ■ The complainant said that he did not have sufficient money and suggested that they . should go to his house. They went to the complainant’s house, and, when the two W1 saw the appellant put some money in his pocket, they beat him until he left the house and went to an anthill where he was told to take off his shoes. At that time PW2 came and asked the complainant what was happening and the two men asked PW2 for some money. When he said that he had no money they told him to start jumping up and down. The sound of some coins in his pocket was. heard and the two men demanded those coins from PW2. PW2 gave them 30n and was told to go away, which he did. The two then beat thee complainant and took his skipper, his watch and K750-00 which he had in his pocket. The following day the complainant reported the matter to the police and also 2/.......requested requested PW2 to lead him to find the people who had robbed him. Together they went to a certain tavern where they both recognised the appellant as being one Of the robbers. They apprehended the appellant and took him to the police. PW2 confirmed that he found the complainant and two other men on the road and that he was told to jump up and down until they heard coins which the two men demanded from him. He said he gave them 30n and was told to leave. This witness said that he saw the two other men and the complainant because it was not very dark. He confirmed that one of the men was the appellant with whom he had been at school, and that one of the others was the appellant who greeted him. He confirmed further that he recognised the complainant who came to him the following day and together they found the appellant at a tavern. There was further evidence from PW4 that he purchased a , skipper from the appellant^and when he heard that the police were looking for him he went to the police station with the skipper which he had bought and the police confirmed that it was the one that they were looking for. The skipper was identified as the one stolen from the complainant. On this evidence the learned trial judge was satisfied with the identification of the appellant,! which he found was corroborated by the evidence of PW4, and the appellant was consequently convicted. Mr. Kunda on behalf of the appellant argued that the evidence of identification was unsatisfactory in that the learned trial judge had said that he would not rely solely on the evidence of PW2 because the only opportunity he had to observe the robbers was during the fifteen minutes when they were in the complainant’s house, which was lit by one lamp, and the com plainant did not know the appellant before. Mr. Kunda also argued that it was wrong for the learned trial judge to rely on the evidence of PW2 who had not mentioned the name of the appellant to the police and who had not told the police that he knew the appellant before at school. It was pointed out to Mr. Kunda by the court that when this witness first saw the police he was actually delivering the apprehended appellant to them. He conceded that in fact there was no need for the witness to have told the police the details referred to. However, Mr. Kunda maintained his argument that there could have been an honest mistake in identification having regard to the poor visibility at the time. He further said that PW4, having been found in possession of the stolen skipper, should have been treated as a witness with a possible interest of his own to serve and should not have been relied upon to corroborate a doubtful identification. Finally Mr, Kunda argued that the learned trial judge misdirected himself when he sald,- - J3 - “In the case now before me not only has the accused been identified by the complainant and PW2. But there is also the evidence of PW4 that a short time after the commission of the offence one of the items, the skipper, was sold to him by the accused and in the light of this evidence the accused elected to remain silent. What inference can I draw from this other than that the accused is guilty?" It was argued that whilst it is in order for a judge or a court to comment on the absence of evidence from an accused person it is improper to draw any inference from the silence on the accused. In reply Mr. Okafor, ,/or the State, pointed out that the learned trial judge had commented in referring to the identification that, despite the darkness on the,night in question, PW1 had been able to recognise PW2 and PW2 had been able to recognise both PW1 and the appellant with whom he had been at school. With regard to PW4 Mr. Okafor argued that, although he was technically a suspect witness his evidence, was something more to support the evidence of identification. With regard to the learned trial judge’s drawing an inference from the silence of the appellant. Mr. Okafor argued that, although the learned trial judge’s remarks may have been unfortunate,,there was ample evidence to support the conviction and he urged us to apply the proviso to section 15(1) of the Supreme Court Act. ; judge - We are satisfied that the learned trial/indicated that he was fully aware of the dangers of there being an honest mistake in the identifi­ cation in this case. We are also satisfied that the mutual recognition between PW1 and 2 and the appellant was an indication that it was not so dark that people who had known each other could not recognise each other, PW2 was properly accepted as a reliable witness and his evidence, supported the evidence of PW1 as to.the identification of the appellant in the tavern. So far as PW4 is concerned we agree with Mr. Kunda that, being a person in whose possession stolen property was found, he should be treated as a person with a possible interest of his own to serve. However, in this^case the fact that he voluntarily reported to the police with the skipper when he heard that the police wished to see him goes a long way to obviate the possible suspicion against him. In any event we agree with Mr. Okafor that, in the absence of any reasonable ’ posibility of collusion against the appellant between PW’s 1, 2 and 4, 4/.'.... the - J4 - the evidence of PW4, despite the possible suspicion against him, is evidence of something more to support the identification. With regard to the comment by the learned trial judge about the inference to be drawn from the silence of the appellant we note from the passage of the judgment which we have quoted that the learned trial judge may have been referring to the whole of the evidence referred to in that passage and not solely to the silence of the appellant. However, we agree that it is possible to read the learned trial judge*s judgment in that respect as meaning that he was drawing an inference from that silence. In this particular case there was no question of drawing an inference at all. There was direct evidence from the witnesses which if accepted, proved the guilt, of the appellant. The learned trial judge accepted that evidence and" that was sufficient to support the conviction. We agree with Mr. Okafor that the judge’s remark was unfortunate, but it was not more than that and does not call for the application of the proviso. For the reasons we have given this appeal is dismissed No appeal lies against the mandatory minimum sentence DEPUTY CHIEF JUSTICE B. T^>GARDNER ACTING SUPREME COURT JUDGE E. U SAKALA SUPREME COURT JUDGE •|S ■ T