The People v Jones Mushili [2019] ZMCA 352 (25 October 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APPEAL 8'/2019 BETWEEN: THE PEOPLE AND APPELLANT JONES MUSHILI RESPONDENT CORAM: Mchenga DJP, Sichinga and Majula, JJA On 15th October 2019 and 25th October 2019 For the Appellants: J. Zulu, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: M. Hakasenke-Simuchirri.ba, Senior State Advocate, National Prosecution Authority JUDGMENT Mchenga, DJP, delivered the Judgment of the Court. Cases referred to; l. David Zulu and The People (1977) ZR 151 2. Fraser Kosam and Goodson Chishimba v The People (1973) ZR 96 3. Joe Banda v The People SCZ appeal No 183 of 2013. 4. Webster Kayi Lumbwe v The People (1986) ZR 93. (cid:9) Introduction J2 l. The appellant appeared before the High Court Judge (Maka-Phiri J.), charged with the offence of murder contrary to section 200 of the Penal Code. The particulars of the offence alleged that he murdered Mary Nyambe between the 3 rd and the 4th of October 2015. 2. Following a full trial, he was convicted, as charged, and capital punishment imposed. Evidence before the trial judge 3. The prosecution evidence before the trial judge, was (cid:9) that on the 3 rd of October 2015, at about 09:00hrs, Mary Nyambe took her phone to the house of Pamela Nyambe, her young sister, to be charged. Later that day, at about 17:00hrs, Pamela Nyambe met her sister and she had collected her phone. 4. That evening a number of people saw Mary Nyambe at the shops, where there were also bars. Austin Moyo saw her sitting in the veranda of one of the shops, with the appellant, between 18:00 and 19:00hrs. According to Carlos Chilukutu, between 18:00 and 19:00hrs, Victor Tembo came to where he was sitting with Mary Nyambe and informed her that the appellant was calling her. She initially refused to go where the appellant was but subsequently joined him. Between 19:00 and 20:00hrs, when he was going home, he saw them sitting together. J3 5. In the case of Mable Banda, she said between 19:00 and 20:00hrs, Majory Sumaili came into the bar and bought Mary Nyambe beer. Subsequently, Mary Nyambe left the bar but she did not see her when she was leaving. Majory Sumaili confirmed being at the bar and she said she arrived in that area, just before 20:00hrs. After visiting other bars, she ended up in the bar where Mable Banda was selling and she bought Mary Nyambe some beer. Mary Nyambe left before her but she did not see her leaving. 6. None of the people who were at the bar saw Mary Nyambe leave, that evening, but the following morning, she was found dead. The phone she was carrying the previous night, was missing. On being informed that she was with the appellant the previous night, Peter Semba reported the matter to the police. 7. On the 5" of October 2015, the police received information that the appellant was in the Lulamba area of Chingola. They went to that area in the company of Mary Nyambe's relatives. As they approached the place where the appellant was, he saw them and he started running away. They gave chase and apprehended him 8. The appellant led the police to his house on October 2015. A search of the house, yielded Mary Nyambe's missing phone. A post-mortem, that was subsequently conducted on her body, found the cause of death to be strangulation. J4 9. In his defence, the appellant admitted being with Mary Nyambe on 3 rd October 2015, in the evening. He said he was with her between 17:00 and 18:00hrs, they were together for only 30 minutes. He said she gave him the phone so that he could take it for repairs. He also said he did not know the name of the person who repaired it and denied attempting to run away, when the police had gone to apprehend him. Findings by trial judge 10. After considering the evidence before her, the trial judge found that it was not in dispute that Mary Nyambe was murdered. She also found that the appellant was the last person to be seen with her, around 20:00hours, on the 3 rd of October 2015. She accepted the evidence that Mary Nyambe's phone was recovered from the appellant's house and that he attempted to flee, when he saw the police officers who went to apprehend him. 11. She recognised that the evidence against the appellant was circumstantial, in that no one saw him commit the offence. The case against him, was that he was the last person to be seen with Mary Nyambe before she was found dead, and that he was found with a phone she was carrying, the last time she was seen. She considered his explanation of how he came by the phone, and found that it could not reasonably be true, because there was evidence that is it was functional and he failed to say why he did not return it, after repairs or name the person, who repaired it. 12. The trial judge also found the appellant's attempt to run away to be incriminating. All in all, she came to the conclusion that the only inference that could be drawn, on the evidence that was before her, was that it was the appellant who murdered Mary Nyambe. Ground of appeal and arguments in its support 13. The sole ground of appeal, is that an inference of guilty, is not the only inference, that could have been drawn, on the evidence that was before the trial judge. 14. Mr. Zulu submitted that the finding that the appellant was the last person seen with Mary Nyambe, at 20:00 hours, was not supported by the evidence. He pointed out that there was evidence from Austin Moyo, that he saw the appellant with Mary Nyambe between 18:00 and 19:00hrs, and Carlos Chilukutu, that he saw them between 19:00 and 20:00hrs, this being the case, the trial judge should have found that the appellant was with Mary Nyambe earlier than 20:00hrs. 15. Further, Mr. Zulu pointed out that there was also evidence from Mable Banda, that Majory Sumaili, came to the bar with Mary Nyambe after 20:00hrs. That that being the case, it cannot be said that, the appellant, was the last person to be J6 with Mary Nyambe. Majory Sumaili, was with Mary Nyambe, way beyond 20:00hrs and was in fact, probably the last person to be with her. 16. Mr. Zulu also argued that the appellant's possession of Mary Nyarnbe's phone, was misconstrued by the trial judge. There was no reason why the appellant would have volunteered information of his possession of the phone if he had committed the offence. He then referred to the case of Fraser Kosamu and Godfrey Chishimba v The People' and submitted that, the test applied when the court did not believe him, was wrong. The question was whether it could have reasonably been true and not whether the trial judge believed it. 17. Finally, Mr. Zulu referred to the case of Joe Banda v The People and submitted that the appellant's testimony, that he did not ran away, should not have been dismissed merely because he did not cross-examine prosecution witnesses, on the issue. He argued that in any case, the appellant was under no obligation to prove his innocence. State's Response 18. (cid:9) In (cid:9) response, Mrs. (cid:9) Hakasenke-Simuchimba submitted that the trial judge, in her judgment, acknowledges, that all the witnesses were making reference to the estimated times that events occurred. Further, the trial judge rightly found that the appellant, was the last person to be seen J7 with Mary Nyambe. She referred to the testimony of Carlos Chilukutu, that while in the bar, Victor Tembo informed her, that, the appellant was calling her. She initially resisted, but later left and joined him. 19. On the appellant's attempt to run away, she submitted that the trial judge, was entitled to accept the evidence that the appellant, attempted to run away, on account of it being unchallenged in cross examination. She referred to the case of Webster Kayi Lurnbwe v The People and submitted that a finding of fact, anchored on credibility, can only be challenged if it is shown that it was erroneous. 20. As regards the trial judge's treatment of the appellant's explanation on how he came by the phone, Mrs. Hakasenke-Simuchimba, submitted that, the trial judge applied the correct test when she came to the conclusion that it could not reasonably be true. An inference of guilty being the only inference 21. This appeal, in the main, attacks findings of fact made by the trial judge. In the case of Wilson Masauso Zulu v Avondale Housing Project Limited 4, it was held that: "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made J8 in the absence of any relevant evidence or upon misapprehension of the facts" This being the case, we can only set aside the trial judge's finding that the appellant was the last person to be seen with Mary Nyambe around 20:00hrs, if it is either perverse, not supported by the evidence or based on a misapprehension of the facts. 22. We will first deal with the time when the appellant is said to have been seen with Mary Nyambe. All the witnesses who made reference to time talked about estimated times. Austin Moyo, Victor Tembo, Carlos Chilukutu, Mable Banda and Majory Sumaili, all made reference to events happening between either 18:00 and 19:00hrs or 19:00and 20:00hrs or just before 20:00hrs. 23. Scrutiny of their testimony on the record of appeal, clearly show that they did not state the time with any degree of precision. They were all estimating what time it could have been. What is clear though, is that it all happened between sunset and the early hours of the night. 24. It was therefore open for the trial judge to make an assessment of what time it could have been. In our view, the finding that it was around 20:00hrs, in the circumstances, cannot be said to have been perverse or not supported by the evidence. As it turned out, the issue was whether the appellant, was seen with the deceased that J9 evening. Connected to the time that the appellant was seen with Mary Nyambe is whether she was seen with someone else after being seen with the appellant. 25. Mr. Zulu has argued that going by the testimony of Majory Sumaili and Mable Banda, whose combined evidence points at the fact that Majory Sumaili was with Mary Nyambe in the bar after 20:00hrs, the appellant cannot be said to have been the last person to have been with her. As we have already indicated, all the witnesses gave estimated times. Just because Austin Moyo, Victor Tembo, Carlos Chilukutu and Mable Banda made reference to events happening between either 18:00 and 19:00hrs or 19:00 and 20:00hrs, should not have led to a conclusion that what they perceived happened before events that Majory Sumaili talked about, because she said "just before 20:00hrs" she came to the bars. 26. The sequence of events, as can be discerned, after assessing the evidence of all the witnesses, is that Mary Nyambe was in the company of Austin Moyo and others that evening Victor Tembo was sent by the appellant to call her but she did not go to him immediately. In due course, Majory Sumaili turned up and bought her some beer. Thereafter, she left and as Carlos Chilukutu was going home, he saw her sitting with the appellant. J10 27. From this evidence, we find that the trial judge cannot be faulted for finding that the appellant was the last person to be seen with Mary Nyambe and that it was around 20:00hrs. the finding is supported by the evidence. 28. Coming to the trial judge's rejection of the appellant's claim that he did not run away, that finding is anchored on the credibility of the conflicting testimony of witnesses. As argued by Mrs. Hakasenke-Simuchimba, a finding based on credibility can only be set aside if it is not supported by the evidence. 29. It is our view that having not cross examined the prosecution witness on the evidence that the appellant attempted to run away, the trial judge was entitled to accept it as more credible than the appellant's contested version of events. The failure to cross examine, had nothing to do with the burden of proof, as Mr. Zulu has attempted to argue. 30. We will now deal with the trial judge's finding that the appellant's explanation of how he came by the phone cannot reasonably be true. We have examined the judgement and we find nothing suggesting that the appellant's explanation was rejected because she did not believe it. She J 11 actually indicated that she did not think the explanation could reasonably be true because there was nothing wrong with the phone and the appellant did not return it after having allegedly had it repaired. Further, he did not name the person who repaired it. Verdict 31. We are satisfied that on the evidence before her, the trial judge was entitled to come to the conclusion that the only inference that could be drawn was that the appellant committed the offence. Consequently we find no merit in the appeal and we dismiss it. The appellant's conviction is upheld and the punishment she imposed are upheld as there were no extenuating circumstances in this case to warrant the imposition p a different sentence. .v.t,,................f....'.... C. F. R. Mchenga DEPUTY JUDGE PRESI D. L. Y.//Sic]inga Sc COURT OF APPEAL JUDGE B. . Majula COURT OF APPEAL JUDGE