Kennedy Kaunda v People (APPEAL NO. 45/2018) [2019] ZMSC 395 (26 September 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 45/2018 Jl HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: KENNEDY KAUNDA APPELLANT AND THE PEOPLE RESPONDENT CORAM: CHISANGA, JP, MAJULA AND NGULUBE, JJA On 25th June and 26th September 2019. For the Appellant: Mrs. M. K Liswaniso, Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. F. Nyirenda -Tembo, Depu ty Chief State Advocate, National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. 2. 3. Simon Malambo Chooka Vs the People (1978) Z. R.243 Haonga and Others vs The People (1976) Z. R.200 Chabala Vs The People (1976) Z. R.14 Legislation referred to: 1 . The Penal Code, Chapter 87 of the Laws of Zambia. The appellant was convicted of the offence of murder, contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. He J2 was sentenced to death by the High Court at Ndola as the Court found no extenuating circumstances in the matter. He now appeals against both conviction and sentence. The particulars of the offence were that on 6 th May, 2017, at Ndola, in the Copperbelt Province of the Republic of Zambia, the appellant murdered Emmanuel Matandiko. According to the facts, PWl , a child witness, whose age was unknown gave evidence after the court conducted a voire dire and found that the witness had sufficient understanding to give evidence on oath and understood the duty to speak the truth. Her evidence was that on the night in question, her mother left her and her younger brother Emmanuel at home at about 19:00 hours and went to buy a candle. Soon thereafter PW 1 and her brother were attacked by thieves who entered the house and held Emmanuel by his legs. They dragged him out of the house and hit him against the wall until he bled from the nose and white stuff came out of his mouth. PWl stated that she was able to see what happened because their assailants had a torch. She managed to run away and went to call her mother at the makeshift store. Upon their return home, PWl 's mother took her J3 brother Emmanuel to the hospital with her friend Matilda. She could not identify the assailants because it was dark. The second prosecution witness, PW2 's testimony was that on 5 th May, 2017 at about 19:00 hours, she left her two children, PWl and her brother Emmanuel at home . She went to Aunt B's bar where she found her friends , Matilda and Violet. They later relocated to Paka Green bar where her daughter, PWl went to call her to inform her of the attack by thieves at their home. PW2 rushed back home with her friend Matilda where she found a man standing in the corner of her sitting room, half dressed as he held at-shirt and a belt in his hands. PW2 also found her injured son Emmanuel lying on the floor of the sitting room. When he saw her, the man tried to run away but her friend, Matilda held him and struggled with him . In the process, PW2 rushed back to Paka Green bar, which was one hundred metres away from her house to seek help. After the man was apprehended, PW2 took her son to Arthur Davison Childrens' Hospital where she was informed upon arrival that her son had died. J4 PW2 identified the accused in the dock as the man she found standing in the corner of her sitting room on the material night. She stated that she saw him for the first time at her house that night. In cross-examination, PW2 later changed her statement and stated that she saw the man at Aunty B's bar earlier that evening. In further cross-examination, PW2 stated that she saw the man for the first time when she found him in her sitting room. PW3, Matilda's testimony was that on the material night, she went to Aunty B's bar with her friend PW2 and another friend, Violet. While there, a young man called Justine went to tell her that there was a man who was looking for her. Eventually, the man approached her and told her that he loved her. PW3 left the bar with her friend, PW2 and they relocated to Paka Green bar. At some point, she went out to answer the call of nature and as she returned to the bar, she met PW2's daughter who told her that they had been attacked at home. PW3 accompanied PW2 as they rushed back home where, upon arrival, PW2 entered the house while PW3 and PWl waited outside. She heard her friend shout that there was a man inside her house. Soon thereafter, PW3 saw a man who tried to get out of the house JS but she got hold of him and struggled with him. In the process, she saw that PW2 's son Emmanuel was injured as he bled from the mouth and nose. PW2 returned to the bar to ask for help, while PW3 remained at the house, struggling with the man. After a while, a young man known as Jacob went to help her and they managed to apprehend the man. He was taken to the Police Station at Twapia. PW3 later accompanied her friend , PW2 to Arthur Davison Childrens' Hospital where they learnt that the child had died. In cross-examination, PW3 stated that she met the accused for the first time when he proposed love to her at the bar that night. She denied having been in an intimate relationship with him. PW4, Jacob Mulenga's testimony was that on 5 t h May, 2017, he left a friend's house in Twapia overspill and was on his way home at about 20:00 hours when he met a young lady who told him that his relative , Agnes was being assaulted by a man. He met PW2 on the way and she asked him to go and help her friend , Matilda who had apprehended a man at her house. He found PW3 behind Aunty B 's bar on the road leading to PW2's house, struggling with a man. He apprehended the man and took him to Twapia Police Station. J6 PW6, Dr V. Petrenko, the forensic pathologist gave evidence that he conducted a postmortem examination on the body of Emmanuel Matandiko on 10t h May, 2017. He found that the cause of death was brain trauma due to blunt force injury. The arresting officer, PW7 testified that he investigated the matter and in the process, the accused told him that PW3, Matilda was his girlfriend. He led PW7 to a house in Bunga compound where Matilda lived. The accused gave evidence in his defence and stated that on 5 th May, 2017, he knocked off from work and went to Aunty B's bar in Twapia at 19:00 hours. He found his girlfriend, PW3, at the bar and they drank beer together until 21 :30 hours. They moved to Paka Green bar and continued drinking until 22:00 hours when they left the bar together and went to her house. Upon getting there, PW3 asked him to spend the night at the house but he d eclined. She then threatened to shout "thief, thief' if he did not stay for the night which she did, and people rushed there and attacked the appellant. He was subsequently taken to Twapia Police Station where he was remanded in custody. He was later informe d that two women had reported to the Police that he beat up a child to death . He was charged with the • J7 offence of murder which he denied. He stated that he was in a relationship with PW3 for two months. He maintained his innocence throughout the trial. From this evidence, the learned trial Judge in the court below found that PW2 found the accused standing in the corner of her sitting room while her son lay bleeding on the floor. PW3 then apprehended the accused and struggled with him until PW2 called for help from people who were at the nearby bar. The court found that the fact that the child bled from the mouth and nose corroborated the evidence of PW 1, and that the accused was one of the two assailants who dragged PW2 's son out of the house and hit him against the wall. The court found that PW3 did not lose grip of the accused after she held him until Jacob, PW4, arrived on the scene and helped her apprehend him. The court reasoned that the accused placed himself at the scene and had the opportunity to commit the offence. The court further found that the accused's conduct that night when he was found hiding in PW2's sitting room including his continued struggle with PW3 to free himself and run away was sufficient corroboration that he was the JS one who caused the deceased's death . The court went on to find that the accused acted with malice aforethought when he caused the death of the child who died of severe head injury. In the final analysis, the court came to the conclusion that the prosecution had discharged its burden of proving the accused's guilt beyond all reasonable doubt and convicted him of the offence of murder. The court did not find any extenuating circumstances and sentenced the accused to death. Dissatisfied with the Judgment, the appellant filed two grounds of appeal. He contended that the learned trial Judge misdirected herself in law and in fact when- 1. She found that the appellant undoubtedly caused the death of the deceased; 2. She found that the appellant's defence was concocted and an after thought calculated to deceive the court. In arguing ground one, Mrs. Liswaniso, Legal Aid Counsel, submitted that PWl did not identify the appellant as one of the thieves who attacked her and her brother, Emmanuel. Counsel submitted that a perusal of the record of proceedings shows that PW2 told the court J9 that she did not know the appellant as PW3 's boyfriend nor did she know his name. PW3's evidence on the other hand was that she met the appellant for the first time that evening at the bar when he proposed love to her. The evidence of PW4 was that PW2 lied when she stated that the appellant bled as he was taken to the Police Station on the material night because he did not see any blood on the appellant's person. Counsel went on to submit that the evidence of the arresting officer PW7 was that his investigations revealed that PW3 and the appellant drank beer together at a bar on the night in issue. Counsel submitted that the appellant's evidence in his defence was that he drank beer at the bar with PW3 and left with her at about 21 :30 hours, heading to her house. He stated that when they got there, she shoute d "thief, thief' because he refused to spend a night with her. Counsel contended that when the appellant was apprehended, PW3 was also remanded in custody for two days. It was counsel's submissions that PW3 was a witness with a possible interest of her own to serve because although she admitted having been with the appellant at the bar on the material evening, she did not say how they parted • JlO company. We were referred to the case of Simon Malambo Chooka vs The People 1 where the court stated that- "a witness with a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereby based simply on his demeanor and the possibility of his evidence." We were further ref erred to the case of Haonga and others vs The People2 where the court held that- ''there must be a very good reason for accepting the evidence of a witness who has been found to be untruthful on a material point on an issue identical to that on what he has been found to be unfaithful in relation to another accused." Counsel argued that the danger that the appellant was falsely implicated by PW2 and PW3 was not excluded and that as such, it was unsafe for the trial court to rely on their evidence. • Jll In ground two of the appeal, it was contended that the explanation that the appellant gave in his defence was not an afterthought calculated to deceive the court. We were ref erred to the case of Chabala vs The People 3 where the Supreme Court stated that- "where an explanation is given and it might reasonably be true, there cann ot be a con viction for guilt is not the only reasonable inference." Counsel argued that the onus is on an accused to prove his explanation which the court is required to consider. She further submitted that the explanation that the appellant gave regarding the events of that night could reasonably be true and that he was not obliged to prove his innocence. Counsel further highlighted that although PW l 's testimony was that the attack at their home occurred at 1 9: 00 hours, the appellant was allegedly apprehended by PW3 at 23:00 hours , and that no evidence was led to show that the appellant was one of the thieves who attacked PWl and her brother. It was contended that the glaring inconsistencies in the evidence of the prosecution witness must be • J12 resolved in favour of the appellant. We were urged to quash the conviction and set the appellant at liberty. The respondent filed heads of argument in response to the appellant's heads of argument. On ground one, Mrs Nyirenda-Tembo, Deputy Chief State Advocate submitted that the appellant had the opportunity to commit the offence as PW2 found him hiding in her house and attempted to flee when he was confronted by PW2 and PW3. Counsel contended that the appellant did not show any reason why the evidence of PW2 and PW3 should be doubted as he did not dispute having been at the scene when the incident occurred. It was submitted that the trial court took into account all the evidence on record and found that the appellant was not falsely implicated. The court convicted him on the evidence of PW2 and PW3 which was found to be reliable. Responding to ground two , it was submitted that the lower court was on firm ground when it found that the defence by the appellant was concocted and an afterthought as there was no attempt to show that the appellant actually drank beer with PW3 at Aunty B 's tavern. • • J13 Counsel prayed that the two grounds of appeal be dismissed for lack of merit and that the conviction and sentence be upheld. We have carefully considered the evidence on record, the Judgment appealed against and the arguments by counsel on both sides. We have examined the two grounds of appeal and are satisfied that they are interlinked. Further, that they raise the sole issue in this matter, whether it is the appellant who caused the death of Emmanuel Matandiko. Having so identified the issue, we are satisfied that the entire appeal rests on the determination whether the trial court was on firm ground in finding that the appellant murdered Emmanuel. It is clear from page J37 of the Judgment of the trial court that the learned trial Judge concluded that the appellant was found hiding in the corner of PW2 's sitting room while the child Emmanuel was found lying on the floor with blood oozing from his mouth and nose. The court found that the appellant, by being at the scene had the opportunity to commit the offence and further found that he was , in fact the one who caused Emmanuel's death. It is essential, before resolving ground one to scrutinize the evidence before the trial Judge in order to appreciate the scene of crime and J14 establish whether she could rightly conclude that the appellant caused the death of Emmanuel. The evidence on record is that PW 1 rushed to the makeshift store where her mother, PW2 was with her friend, PW3 and informed them that she and her brother had been attacked by two men who dragged her brother out of the house and hit him against the wall. The evidence of PW2 is that she returned home with PW 1 and PW3 after receiving the news of the attack at the bar, and upon entering the house, she found the appellant hiding in the corner of the sitting room while her son Emmanuel who was badly injured, lay on the floor. PW2 stated that the man was apprehended by PW3 and that she saw him for the first time that night. She however altered her testimony subsequently and said that the man drank beer with her friend PW3 at the bar earlier that evening. Th evidence of PW3 is that she apprehended the appellant as he tried to run away from PW2 's house and held him until PW4 went to her aid. She stated that she was at the bar with the appellant earlier that evening. The evidence of PW4 is that he went to help PW3 apprehend the appellant and found her on the ground at a place about 15 metres • JlS from PW2's house. He helped in taking the appellant to the Police Station in Twapia. A scrutiny of the Judgment appealed against shows that in evaluating the evidence, the court placed reliance on the testimonies of PW2 and PW3. The evidence however reveals that PW2 and PW3 did not entirely tell the truth about the events of that evening as initially, PW2 stated that she found the appellant hiding in the corner of her house, who she saw for the first time that night. However, in further questioning, she admitted having seen the appellant at the bar earlier. The evidence of PW3 is that she apprehended the appellant at PW2 house as he tried to run away. The evidence of PW 4 is that he found PW3 struggling with the appellant about 15 metres away from PW2 's house, in between the bar and the house. In cross-examination PW3 stated that she saw the appellant at the bar earlier that evening and that he even proposed love to her. There were inconsistencies in the testimonies of PW2 and PW3 regarding what transpired that night. It is evident that PW2 and PW3 did not want to testify that the appellant was with them at the bar • • J16 earlier that night. This piece of evidence was only extracted from them in cross-examination. The question that therefore arises is that if the appellant was with them that night, when did he leave the bar to go to PW2's house and cause the death of the child? Additionally, PW3 stated that she apprehended the appellant at PW2's house. How then, was she found by PW4 struggling with the appellant, 15 metres away from the house? The evidence of PW2 is that she left her children at home at about 19:00 hours. How come the appellant was apprehended after 21: 30 hours when the child witness testified that the attack occurred soon after her mother left, around 19:00 hours? Having found these glaring inconsistencies in the evidence of PW2 and PW3, we find that the learned trial Judge's basis for convicting the appellant was wrong as we are of the view that the evidence was not sufficient or compelling enough to draw an inference that it is the appellant who caused the death of Emmanuel. We are of the view that the evidence of PW2 and PW3 was contradictory and inadequate and yet the court anchored its decision on it. ,f .. J17 We agree that PW3 was a suspect witness as when the appellant was apprehended, she was also remanded in custody for two days. Accordingly, her evidence needed to be corroborated. We do not find any evidence that supports the testimonies of PW2 and PW3 . Further, the court should have disclosed the reasons why she believed PW2 and PW3 and not the appellant. We are of the view that the lower court's conviction of the appellant is unsafe as the evidence of the two key witn esses does not add up. We accordingly quash the appellant's conviction and sentence. We u p hold t h e appeal, acquit the appellant and set him at liberty forthwith. JUDGE PRESIDENT - COURT OF APPEAL B~jULA COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE