Kabaila and anor v The People (Appeal Nos. 14& 15 of 1990) [1991] ZMSC 64 (6 March 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal Nos. 14& 15 of 1990 HOLDEN AT NDOLA (Criminal Jurisdiction) • 1st Appellant 2nd Appellant HEZZY KABAILA JAN KUNDA and THE PEOPLE Respondent CORAM: Gardner, Sakala and Lawrence, JJJ. S 20th June 1990 and 6th March 1991 For the Appellants: In person For the State: Mr. K. Lwali State Advocate JUDGMENT Lawrence, J. S. delivered the reserved judgment. Cases referred to: (1) Haonga and Others -v- The People (1976) ZR. 200 When this matter came before us on 20th JUne, 1990 we heard and allowed the appeals of both appellants and said that we would give our reasons for quashing the conviction and setting aside the sentences later. We now give those reasons. The appellants were jointly charged with a third man, who was acquitted at the trial, with the offence of aggravated robbery contrary to section 294(1) of the Penal Code. The particulars of offence were that Wezzy Kabaila, Emmanuel Phi ri and Joseph Bob Mataka on the 4th day of December, 1987 at Ndola jointly and whilst acting together did rob Redson Mutokola Nyanga of various items which are enumerated in the indictment and that at or immediately before or immediately after the time of such robbery did use or threatened to use actual violence to Redson Mutokola Nyanga in order to obtain or retain the said property. The brief facts were that in the early hours of the 4th day of December, 1987 the family of the complainant (PW8) were attacked and robbed by an unidentified group of men. On 5th December 1987 PW8, who was not at home at the time of the robbery, acting on information receive; and in the company of vigilantes, recovered several items of his stolen property from PW4 who claimed to have purchased the property from the appellants and a third man who was acquitted. PW4 claimed to have purchased a blanket from the second appellant and PW5 testified that he bought a pressing iron from the same appellant. On the other hand PW6 told the trial court that he had purchased a television set, later shown to be that stolen from PW8, from the third man. There ’was no other evidence, as pointed out. by the learned trial judge, to connect the three men to the robbery except that of the complainant, PW8, who testified that with the help of vigilantes, who were not called to give evidence, he had recovered some property from each of the three men. m . A.‘ ' r, .4 The appellants before this court argue that their co-accused had been acquitted on the basis that there was no corroboration of PWs6 and 8's evidence, as the police officer and the vigilantes who were said to have accompanied PW8 to the houses of the suspects were not called to give evidence. The appellants point out that the evidence against them , was identical to that prefered against their acquitted colleague; i.e., that there was no corroboration by PWs4, 5 and 8’s evidence by the police or vigilantes. This is a very valid argument. The record clearly shows that the evidence against the two appellants was identical to that which led the learned trial judge to say, in the case of the acquitted man: "In this case there was no independent evidence tending to incriminate this particular accused in the comnissicn of tie crime. It would have been wiser if the prosecution had called the police officer who acccupanied FM3 and the vigilantes to confirm the story of PW6. Even the assertion of PUB that seme stolen property was recovered at the house of the first accused was not sipported by anybody and this leaves me in dodbt better the testimony of PN5 and PH8 is true." Clearly the trial court found PW3 to be unreliable and his evidence should from then on have been regarded with suspicion. If his evidence was unacceptable as corroboration for PW6’s evidence, it could not withou some compelling reason be accepted as corroborating the evidence of PWs4 and 5 who were also allegedly purchasers of some of the stolen property. PWs4 aand 5 were in the same situation as PW6 in all material respects. The evidence of an unreliable witness cannot corroborate the evidence of another unreliable witness. • ' In Haonga and Others -v- The People (1) this court said: "Where a witness has been found to be mtruthful on a material point the weight to be attached to the remainder of the evidence Is reduced; alttw^i therefore it does not follow that a lie...............nevertheless thane must be a very good reason for accepting the evidence of such witness on an issue identical to that on which he has been found to be mtruthful in relation to another accused." . uo ; There were no reasons advanced by the trial court and indeed we can find no reason why the testimony of PW8 was found to be unreliable as against the third accused, but held to be reliable in the case of his two co-accused, i.e., the appellants. The failure by the prosecution to call the police officer and the vigilantes who allegedly accompanied PW8 to the homes of the three suspects was found to be fatal to the prosecution'■ case as it affected the third accused, but acceptable without comment in the case of the two appellants. This was clearly a misdirection which went to the core of the case against the appellants. The appellants have further argued that their election to remain ' silent at the trial when called upon to defend themselves should not have been held against them without more. We find this also to be a valid argument. The learned trial judge, having concluded that the only eviden< against the appellants was "purely circumstantial" and that "their guilt was a matter of inference," inferred that guilt from the appellants' silence. This he was not entitled to do. A court may comment that the silence of an accused person leaves the prosecution evidence unanswered, but such silence cannot be used to make good a deficiency in the prose­ cution evidence nor can any inference be drawn therefrom. It is always for the prosecution to prove its case and then having done so, the silenc-; of an accused person leaves such case unanswered and this must result in a conviction. In the present case the only evidence against the appellan was uncorroborated or accomplice evidence and the evidence of a man (PW8) whose reliability was called in question. For the foregoing reasons we allowed the appeals and acquitted the appellants. B. T. GARDNER AG. SUPREME COURT JUDGE E. L. SAKALA ' SUPREME COURT JUDGE A. R. LAWRENCE SUPREME COURT JUDGE