Lipepo & Others v The People (Appeal 389 of 2013) [2014] ZMSC 121 (7 April 2014)

IN THE SUPREME COURT OF ZAMBIA SCZ JUDGEMENT NO. 20 OF 2014 HOLDEN AT LUSAKA APPEAL NO. 389,390,391,392/2013 (Criminal Jurisdiction) BETWEEN: (485) GEORGE LIPEPO 1 ST APPELLANT MOSES SOKO 2 ND APPELLANT CHARLES SOKO 3 RD APPELLANT KELVIN SEPISO 4 TH APPELLANT AND THE PEOPLE RESPONDENT CORAM: WANKI, JS, LISIMBA, AND LENGALENGA, AG. JJS On 3rd December, 2013 and 8th April, 2014 For the Appellant: Mr. K. Muzeng’a - Principal Legal Aid Counsel (Legal Aid Board) For the Respondent: Mrs. N. M. Kawimbe - Deputy Chief State Advocate _____________________________________________________________________________ J U D G M E N T __________________________________________________________________ WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. Sammy Kambilima Ngati, Mumba Chishimba Edward and Davy Musonda Chanda -Vs- The People, SCZ No. 14 of 2003. 2. Muvuma Kambanje Situna -Vs- The People, (1982) ZR 115. 3. 4. Peter Yotamu Hamenda -Vs- The People, (1977) ZR 184. Felix Silungwe and Shadreck Banda -Vs- The People, (1981) ZR 286. J2 (486) LEGISLATION REFERRED TO:- 6. 7. 8. The Consitution of Zambia. The Penal Code, Chapter 87 of the Laws of Zambia. Universal Declaration of Human Rights. This is an appeal against conviction and sentence. The appellants were charged with two counts. In count one the offence is murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia and in count two the offence is aggravated robbery contrary to Section 294(1) (2)(a) of the Penal Code, Chapter 87 of the Laws of Zambia. In count one the particulars of the offence alleged that the appellants on the 22nd April, 2009 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together did murder one Zhai Jiankang. The particulars of the offence in count two alleged that the appellants on the 22nd April, 2009 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and J3 whilst acting together and whilst being armed with an offensive weapon (487) namely AK47 rifle and iron bars did steal 1 a motor vehicle namely Mitsubishi Pajero Registration ABL 1288, 200 Chinese currency notes, 200 Yuen’s and 1000 Korean currency altogether valued at K100,000,000 (old currency) the property of Zhai Jiankang and or immediately before or immediately after the time of such stealing did use or threaten to use actual violence to the said Zhai Jiankang to obtain, retain, prevent or overcome resistance to its being stolen. The appellants pleaded not guilty to the charges and the matter proceeded to trial. During trial of this matter the respondent called 8 witnesses who gave evidence in support of the charges. The witnesses for the respondent were Lucky Mwila (PW1), Grace Kaela Mwandila (PW2), Lu Ming Li (PW3), Killian M. Muleya (PW4), Moya Mubita (PW5), Davis Kalemboh Phiri (PW6), Godfrey Chinyama (PW7) and Lazarus Sulwe, (PW8). The Summary of the evidence presented by the respondent before the trial Court was that on 22nd April 2009 around 23:00 hours PW1 J4 heard some noise of struggle between people in the next yard where the victim lived in a house he rented from her mother. There was a short fence which (488) demarcated the victim’s house and the house where she lived with her mother. Later PW1 heard noise of a sliding gate. When she peeped through her bedroom window to see what was happening in the next yard, PW1 saw a tall man running towards a back door, she realized that there were strangers in the victim’s yard. As she continued peeing PW1 saw another man come running and the two men tried to push the back door but it was locked. Thereafter, she saw a third man running to the victim’s car (Pajero); and the ones who remained in front came to the car and they reversed and left. During the process the car left PW1 had seen four people, three were running in the yard and the fourth one was peeping to see whether they were being seen. The incident took about 10-12 minutes. After the men left there was still some peculiar noise from the victim’s place. The noise was like that of a person crying or trying to breath. When the J5 strangers left PW1’s mother called their neighbour who advised that the police be called. The police were informed and about 40 minutes later they came. PW1 and the police went round the victim’s yard and in the (489) process she bumped into the victim’s leg and she told the police who came. Thereafter, PW1 and the police found the victim’s body lying in a pool of blood. Photographs of the victim’s body were taken by the police. Later, the police took away the victim’s body. During the identification parade that was conducted on 28th April, 2009 PW1 identified two of the appellants herein who were also identified by PW2 at the same parade namely Charles Soko, 3rd appellant and George Lipepo, 1st appellant. According to PW7 he received information to the effect that one of the suspects involved in the murder of the victim herein had been spotted at the bar. Acting on that information PW7 in company of others made a follow up. The informer led him to the fourth appellant as a person who was involved in the murder. When he was searched the fourth appellant was found with foreign currency namely 200 J6 Chinese yen (2x50 and 1x100) and 1000 Korean. The fourth appellant later led PW7 and his colleagues to the apprehension of the third appellant. Following his apprehension the third appellant led PW7 and his colleagues to his young brother’s house where the metal bar and an AK47 riffle (490) with 30 rounds of ammunition were recovered. The appellants were subsequently arrested and charged for the subject offences. Under warn and caution they denied the charges. The appellants gave evidence on oath and called no witnesses before the trial Court. In their evidence they denied knowledge of the crimes and said that the witnesses called by the respondent lied to the Court. According to them PW1 and PW2 were asked to identify some of the appellants herein by the police. After the proceedings were closed the trial Court rendered its judgment in which the appellants herein were convicted as charged and sentenced to death in respect of 1st count and life imprisonment in respect of the 2nd count. It is against this J7 conviction and sentences that they have now appealed to this Court. The appellants advanced three grounds of appeal as follows: 1. 2. 3. The learned trial Judge misdirected himself in law and fact when he convicted the appellants in absence of proof beyond all reasonable doubt. (491) The learned trial Judge erred in law and in fact when he ignored the dereliction of duty by the police when they failed to lift the finger prints from the abandoned vehicle, firearm and iron bar. In the alternative to the above grounds, the learned trial Judge erred in law and fact when he proceeded with trial in the absence of Counsel representing the appellants. In support of the grounds of appeal Mr. Muzeng’a filed heads of argument. In relation to ground one the gist of the submission made on behalf of the appellants is that the prosecution did not prove its case beyond all reasonable doubt. It was argued that the appellants were not connected to the charges by the evidence presented before the trial Court. It was further submitted that there was weak identification evidence. In response to this ground, it was submitted by Mrs. Kawimbe that the learned trial J8 Judge did not misdirect himself in law and fact when he convicted the appellants as there was proof beyond all reasonable doubt. Mr. Muzeng’a, contended in ground two of the appeal that the learned trial Judge erred in law and fact when he ignored the dereliction of duty by the police. Counsel submitted that it is apparently clear from the record that the police never lifted fingerprints from the vehicle, firearm and iron bar. If they (police) (492) had lifted the fingerprints especially from the vehicle, they could have established whether or not any of the appellants were in the vehicle hence effectively placing them at the scene and effectively connecting them to the commission of the offence. The response to second ground of the appeal as advanced by Counsel for the respondent is that the learned trial Judge did not err in law and fact when he found that there was no dereliction of duty by the police because they did not lift fingerprints from the abandoned vehicle, firearm and iron bar. It was argued that the learned trial Judge did not find any value or need for the fingerprints, considering that the deceased’s motor vehicle had been abandoned 200 meters from his house. In respect of the iron J9 bar, Mrs. Kawimbe argued that the odd and suspicious circumstances under which, the exhibited iron bar was recovered, connected the appellants to the commission of the crime. In ground three it was submitted on behalf of the appellants that when the learned trial Court decided to proceed in the absence of their (appellants) Counsel, that greatly prejudiced the appellants’ (493) case. It was argued that the appellants were represented by Counsel and did not waive their right to be represented by Counsel; and that the circumstances of this case did not justify the Court to proceed in the absence of Counsel. The appellants therefore did not have a fair trial as required by Article 18 of the Constitution, Chapter 1 of the Laws of Zambia. (6) The response to this ground is that the learned trial Judge afforded the appellants a fair trial in line with the constitutional guarantees contained in Article 18(1) of the Constitution, Chapter 1 of the Laws of Zambia. (6) Mrs. Kawimbe submitted that the appellants were given an opportunity to be represented by Counsel; that they were given time to prepare their defences J10 after receiving the evidence adduced by the prosecution; that they were provided with interpreters throughout the proceedings; and that they had a right to call witnesses, an option that they did not exercise. It was further argued in response that given the weight of overwhelming evidence adduced by the prosecution, the only verdict that the lower Court would have returned against all the appellants was one of guilty. (494) We must hasten to state here that we are indebted to Counsel on both sides for their submissions before us in this appeal. We have considered the grounds of the appeal; the submissions and the record of proceedings in the Court below. We also note that Counsel on both sides relied on plethora of authorities suffice to state here that we shall refer to some of them in our judgement herein. We shall consider the grounds in the order they were argued. Section 200 of the Penal Code creates the offence in count one. The said section provides that:- “Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” J11 The offence in count two is created by Section 294(1) of the Penal Code which states in part that:- “Any person who, being armed with any offensive weapon or instrument, or being together with one person or more, steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony of aggravated robbery…” (495) The offence of murder occurs when a person causes the death of another person by an unlawful act or omission with malice aforethought. The unlawful act should result in death of the victim within a year and a day. Malice aforethought is proved whenever an intention to cause the death of or to do grievous harm to any person; or knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person; and an intent to commit a felony among others. Aggravated robbery takes place whenever any person steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to J12 prevent or overcome resistance to its being stolen or retained whilst armed with any offensive weapon or instrument, or being together with one person or more. It must be established that a person stole something capable of being stolen whilst armed with an offensive weapon or instrument or being together with one person or more using or threatening to use actual violence to any person or (496) property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. The issue raised in ground one of this appeal is whether the prosecution established its case against the appellants herein to the standard required in criminal proceedings namely beyond all reasonable doubt. To meet this standard the prosecution evidence before the trial court must establish all the salient elements of the offence(s) in question and must connect the suspect(s) to the offence(s). Anything short of the aforesaid implies the prosecution’s failure to prove its case to the required standard. J13 In the instant case, it appears to us that ground one is premised on the challenged evidence of identification and the evidence establishing a link between the appellants and the offences. Evidence of a single identifying witness can properly warrant any competent court to convict upon it provided it is reliable. On this point we call in aid our decision in SAMMY KAMBILIMA NGATI, MUMBA CHISHIMBA EDWARD and DAVY MUSONDA CHANDA -VS- THE PEOPLE (1) where we held that: (497) “It is settled law that a Court is competent to convict on a single identifying witness provided the possibility of an honest mistaken identity is eliminated.” For the evidence of a single identifying witness to be reliable the witness in question must have had the opportunity to positively and reliably identify the suspect(s). It is only then that the possibility for an honest mistaken identity will be ruled out. A poor opportunity of identification affects the reliability of such evidence and consequently entails high possibility of an honest mistaken identity. Our decision in MUVUMA KAMBANJE SITUNA -VS- THE PEOPLE (2) is instructive on this point. In the said case, we held among others that:- J14 “If the opportunity for a positive and reliable identification is poor then it follows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence.” It is our view that excellent opportunity is constituted by sufficient time within which the witness observed the suspects, sufficient lighting and absence of fright among others. In the current case the first and third appellant were identified by PW1 and PW2 so the question of a single identifying witness (498) does not arise. The two witnesses observed the suspects for about ten to twelve minutes with the aid of security lights and the lighting from the deceased’s vehicle from their secured house. They had an excellent opportunity to observe the two appellants. In premises we are satisfied that the evidence of identification was reliable. The other appellants are connected to the offences by recent possession of stolen items, evidence of leading and the circumstantial evidence which in our view took the case outside the realm of conjecture to permit only an inference of guilt. Our J15 upshot is that ground one has no merit and we accordingly dismiss it. In criminal cases it is the responsibility of investigating agencies to thoroughly investigate the cases they bring to the Courts for prosecution. It is during this investigation that all relevant evidence both favourable and unfavourable to the State must be gathered. During the prosecution case the evidence so gathered must be presented to the Court so the Court can arrive at a just decision. Failure on the part of the agencies to diligently execute the said responsibility amounts to dereliction of duty. If the (499) dereliction of duty goes to the core of the prosecution evidence, such dereliction will operate in favour of the accused and may result in an acquittal. It is our view however, that it not every dereliction of duty that will affect the core of the prosecution’s evidence. If there is other overwhelming evidence in the prosecution’s case, the Court can competently convict notwithstanding the dereliction of duty. On this point, we cannot J16 resist to echo our decision in the case PETER YOTAMU HAMENDA -VS- THE PEOPLE (3) where we held that:- “Where the nature of a given criminal case necessitates that a relevant matter be investigated but the investigating Agency fails to investigate in circumstances amounting to dereliction of duty accused is seriously prejudiced because the evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the derelictions of duty.” In the case in casu the alleged dereliction of duty relates to the lifting of finger prints from the deceased’s vehicle and the iron bar among others. It is our view that this alleged dereliction of duty herein would have affected the prosecution’s case if the evidence (500) not gathered on account of the dereliction of duty was the only evidence establishing the case. After careful consideration of the record of proceedings we have come to the inescapable conclusion that in this case there is overwhelming evidence establishing a case against the appellants apart from the evidence of finger prints which was not presented to the trial J17 Court. We have found evidence of witnesses who perceived the commission of the offences and circumstantial evidence. It is also opined that this is a proper case in which the doctrine of recent possession can be invoked. These pieces of evidence sufficiently and strongly connect the appellants to the crimes herein. In the circumstances of this case we are inclined to take the view that the absence of finger prints herein did not amount to dereliction of duty proper and as such the trial judge cannot be faulted. We wish to fortify this position by our decision in FELIX SILUNGWE AND SHADRECK BANDA -VS- THE PEOPLE (4) where we held that:- “Where the circumstances are such that there is no doubt that a defendant has been in possession of the vehicle or of an article, the failure to take fingerprints from the vehicle or from the article could not be a dereliction of duty and the absence of fingerprints (501) cannot raise the presumption that the defendant’s fingerprints could not have been on the vehicle or on the article.” In the premises we find that the second ground of appeal has no merit and it is, accordingly fails and is dismissed. J18 The question we must settle in respect of ground three is whether indeed the appellants did not have a fair trial in this case. It is our firm belief and conviction that any person charged with a criminal offence must be accorded a fair trial. The right to a fair trial is an internationally accepted standard which all states which observe the rule of law must give effect to. To this extent the Universal Declaration of Human Rights (UDHR) (7) provides in its Article 10 that: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” It is common knowledge that Zambia is one of the countries in the international community which prides in the observance of the rule of law. We understand the right to a fair trial to mean a neutral trial conducted to accord each party to the proceedings their due (502) process rights. The right to a fair trial applies to civil and criminal proceedings. There are various rights associated with a fair trial. These include: equal access to, and equality before, the Courts; J19 The right to a fair hearing; The right to a public hearing; The right to a competent, independent and impartial tribunal established by law; The right to a presumption of innocence; The right to prompt notice of the nature and cause of criminal charges; The right to adequate time and facilities for the preparation of a defense; The right to a trial without undue delay; The right to defend oneself in person or through legal Counsel; The right to examine witnesses; The right to an interpreter; and the prohibition on self- incrimination. In keeping with international standards and in giving effect to the right to a fair trial, the Zambian Constitution, (6) which is the supreme law of the land in its Article 18 provides albeit in part that:- (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law. Provisions to secure protection of law. (503) (2) Every person who is charged with a criminal offence:- (a) Shall be presumed to be innocent until he is proved or has pleaded guilty; J20 (b) Shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged; (c) Shall be given adequate time and facilities for the preparation of his defence; (d) Shall unless legal aid is granted to him in accordance with the law enacted by Parliament for such purpose be permitted to defend himself before the Court in person, or at his own expense, by a legal representative of his own choice; (e) Shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the Court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to witnesses called by the prosecution; and (f) Shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge; and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the Court has ordered him to be removed and the trial to proceed in his absence...” It is opined here that due regard must be given to the above stated rights for a fair trial to take place. Non observance of the afore-stated rights in any given proceedings will render the trial (504) J21 unfair. An unfair trial warrants the Appellate Court to order retrial of a matter tainted with manifest unfairness and or deem such trial null and void or of no effect. In this case Counsel for the appellants argued on their behalf that the appellants did not have a fair trial because they conducted their defence in person at the insistence of the trial Court when they had engaged Counsel who represented them during the prosecution’s case. The question we must answer is, was it mandatory for the appellants to conduct their defence through their legal Counsel? We answer this question in the negative. The answer to this question, in our view, rests on the meaning of Article 18(2)(d) of the Constitution which provides that:- “…shall unless legal aid is granted to him in accordance with the law enacted by Parliament for such purpose be permitted to defend himself before the court in person, or at his own expense, by a legal representative of his own choice;…” Our understanding of this provision is that where legal aid is granted, the suspect must be defended by legal aid Counsel at all material times. In any other case the suspect must be permitted J22 to conduct the defence in person or by a preferred legal representative. (505) It is our further understanding that the right to legal representation is not absolute. The implication of this is that in some cases the suspect may have legal representation while in other cases he or she may be in person and prosecute his or her case as such. Further, the right to legal representation must be enjoyed in balance with the suspect’s right to a trial without undue delay. If in the opinion of the trial court undue delay is likely to be occasioned at the instance of defence counsel who absconds from Court without any explanation, it is perfectly proper for the trial Court to permit the suspect to defend himself or herself in the Court’s resolve to give effect to the suspects right to a trial without undue delay. We examined the record of proceedings in the Court below and found that the trial Court did not flout any of the rights associated with a fair trial and as such the trial of the appellants was not rendered unfair. Therefore, our answer to the question J23 raised by ground three of this appeal is in the negative. In other words, for (506) the sake of brevity and clarity, it is our view that the appellants had a fair trial. Ground three has no merit and it accordingly fails. Our conclusion is that all the three grounds of appeal have no merit. This appeal against conviction fails and is dismissed. In relation to the sentence, we find no justification to disturb the sentence. We find no merit in the appeal against the sentences imposed on the appellants. The appeal against the sentences is equally dismissed. ............................................... M. E. Wanki SUPREME COURT JUDGE ..................................................... M. Lisimba, ACTING SUPREME COURT JUDGE .................................................... J24 F. M. Lengalenga, ACTING SUPREME COURT JUDGE