Sinyinza v People (Appeal 135 of 2017) [2018] ZMSC 296 (7 August 2018)

Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA / KABWE (Criminal Jurisdiction) APPEAL No. 135/ 2017 BETWEEN MARTIN SINYINZA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Muyovwe, Hamaundu, and Chinyama, JJS On 10th July, 2018 and 7 th August, 2018 FOR THE APPELLANT: Mrs. M. Marebesa-Mwenya, Legal Aid Counsel FOR THE STATE: Mrs. M. Chitundu, Deputy Chief State Advocate and Mr s. Angelica Kennedy Mwanza, Senior State Advocate JUDGMENT Hamaundu, JS delivered the judgment of the court. Cas es re ferre d to: Chisha v The People (19801 Z. R. 3 6 Emmanuel Phiri v The People (1982) Z. R. 77 Dorot hy Mutale and Richard Phiri v The People (1997) Z. R. 227 1. 2. 3. 4 . Murono v The Pe ople (2004) Z. R. 207 5 . 6 . Machipis a Kombe v The People (2009 ) Z. R. 232 Nsofu v The People (19731 Z. R. 287 Kanyama v The Pe ople , Appeal No . 145 of 201 1 7 . 8 . Wilson Mas uso Zulu v Avondale Housing Project (19 82) Z. R. 172 9. Bernard Chis ha v The People (19 ,80) Z. R. 36 J2 • . . . The appellant appeals against his conviction by the Subordinate Court •.of the offence bf defilement contr ary to section 138(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The appeal is based on the solitary ground that the trial court er red in convicting the appellant in the a bsence of any evidence of circumstances that provided corrobora tion as to his identity as the perpetr ator of the offence. The story that the prosecution presented before the trial court through the testimony of witnesses was this: The victim, a girl aged nine years when the inciden t occurred, was living with her grandmother in Isoka at the material time . This was in 2 01 1. The appellant was an uncle to the victim, namely, being the you nger brother of the victim's mother. Around the month of October, 2011, the victim's grandmother discovered some sores on the victim's private parts. The victim was taken to the District Hospital where medical examination revealed that the victim had been defiled; and that the sores on her private parts related to sexually transmitted diseases. The victim, upon further examination, was found to be HIV positive. It is then that the victim revealed that the appellant had previously defiled her on a number of occasions. According to the prosecution's testimony, the appellant, who up to that time had been living with the victim and her grandmother, fled Isoka; and was at large until he was apprehended in Nakonde in April, 2013. The story presented by the appellant before the trial co1.1rt, through his testimony, was in the form of an alibi. The story was this: That, indeed, he, at some time, had been living with his mother, (the victim's grandmother) in Isoka, but that this was in 2009 when he had fallen very ill; That, at that time, the victim was living with her mother in Nakonde. And, that, in 2011 , when the victim was living with the grandmother, he had already gone back to Nakonde . .. . .. · J4 The trial court rejected the appellant's defence of alibi on the ground that he did not raise it in time for the police officers to . . '· .. •. '. ' investigate it; and also on the ground that the prosecution's evidence pDlinting to his identity was so overwhelming as to negative that defence . The trial court accepted the prosecution's version of th~ story, namely ,that the appellant was Jiving with the victim and her grandmother in lsoka at the time of the defilement and that he fled Isoka when the d efilement was revealed by the victim. The trial court had no difficulty in finding that the victim was indeed below . . . . sixteen years, there being no dispute that she was nine years old at the time of the incident. The trial court also had no difficulty in finding that the victim had been defiled, as this fact was corroborated by medical evidence. Coming to corroboration of the victim's allegation that it was the appellant who had defiled her, the tiial court relied on the fact that, from the testimony that had accepted, the appellant had opportunity to commit the offence; and the fact that the appellant has run away from lsoka when th e defile1nent was revealed. The trial court further found corroboration in the medical evidence which showed that the victim was found to b e HIV positive and that appellant was HIV positive as . ' • JS well. Finally the trial court found corroboration in the fact that, the •. appellant being related to the victim and the prosecution witnesses, ' . ' . ' t •. there was no motive for the witnesses to falsely accuse the appellant. , Thus, the trial court convicted the appellant of the offence. Upon committal to the High Court for sentence, the appellant was sentenced to 40 years imprisonment with hard labour. The appellant then appealed to this court. The appeal was argued entirely on written heads of argument. On behalf 'of the appellant, reliance was placed heavily on our j udgment in the case of Chisha v The People 1 where we explained the reasons why the evidence of a child witness requires to be corroborated . Reliance was also placed on Emmanuel Phiri v The People 2 where we held that in a sexual offence there must be corroboration of both the commission of the offence and the identity of the offender: and, also, that where there can be no motive for a prosecutrix to deliberately and dishonestly make a false allegation against an accused, that is a special and compelling ground which would justify a conviction on uncorroborated evidence. It was then ' . . . . J6 submitted that there was absolutely no evidence on record to show that the evidence of the victim in this case was corroborated with ' · '. ' + '. '' regard to the identification of the appellant as the offender. Learned counsel for the appellant submitted that the triai court fell in error when it concluded that it was the appellant who committed the offence on the ground that the appellant was HfV positive and the victim was infected with HIV at the time that the appellant and the victim were living in the same house. ft was learned counsel's argument ~hat there was po evidence to show that the victim had previously been HIV negative and that the only way in which the victim contracted HIV was through sexual intercourse with the appellant. Counsel argued that there were many inferences that could be made as to how the victim could have contracted HIV. Counsel suggested that the victim could have contracted HIV at birth or could have contracted it through other ways than sexual intercourse. Relying on the case of Dorothy Mutale and Ric hard Phiri v The People3 , counsel argued that, faced with these multiple inferen ces, the trial court should have a dopted those which were more favourable to the appellant. Finally, counsel argued that the prosecution 's fai lu re to provid e a n exus between the victim's HIV • •. •J7 status and the appellant created a doubt as to the appellant's guilt; which doubt was fatal to the prosecution's case . According to ' . '· ' '· counsel, this meant that the prosecution had failed to discharge its burden to ,providing that, the appellant, had defiled the victim. Citing the case of Murono v The People4 where we held that the burden of proving.every element of the offence and, ultimately, ,the guilt of the accused lies from beginning to end on the prosecution, counsel urged us to uphold this appeal. In response, the State supported the conviction o'f the trial court. In doing so, the State conc urred with what the trial court considered and accepted as constituting corroboration. Learned counsel for the State submitted that the prosecution witnesses had testified that the a ppellant himself, in his testimony, confirmed that h e had been living with his mother, thereby placing himself at the scene. Counsel then argued that this gave the appellant opportunity to commit the offence. We were referred to the case of Nsofu v The People 5 where we regarded opportunity as capable of providing corroboration in an appropriate case. .. J8 Counsel also concurred with the trial court that the evidence that the victim and the appellant were both found to be HIV positive '. was an odd coincidence that provided corroboration. Counsel '. '· ' ' s u bmitted that that•.odd coincidence amounted to '1s omething more" as we stated in the case of Machipisa Kombe v The People6 . Counsel submitted that if, ,indeed, the vicfiim was born H~V positive, such information would have been availed; and that, in any case, the a ppellant did not raise the issue with either the victim's mother or grandmother. Counsel went on to argue that there was no monve for the victim to deliberately make false allegations against the appellant. According to counsel, this was another special and compelling ground which provided corrobora tion, as was held in the case of Emmanuel Phiri v The People2 . Finally the case of Kanyanga v The People 7 was cited where we applied the grounds upon which an appellate court may interfere with the findings of fact made by tbe trial court which we had stated in the case of Wilson Masaus o Zulu v Avondale Housing Project 8 . It was then submitted that the trial court had the opportunity of seein g and hearing the witnesses ' . J9 and that, therefore, it was best placed to make the findings of fact u pon which it came to only one conclusion; that the appellant '. ' . committed the offence of defilement. ' With those arguments, we were u rged to dismiss the appeal. • ' In Bernard Chisha v The People 1, which has b een cited extensively by the defence, the main issu e that arose was whether the sworn evidence of a child is to be treated like the sworn evidence of any other witness. The following is part of what we said in that case: "As it is necessary to heed the warning, corrobora tion of the sworn evide n ce of a child is, in practice, usually looked for. There need not now be a technical approach to corroboration: evidence of something more suffices." In Machipisa Kombe v The People6 we stated that the provisio to section 122 of the J u veniles Act requires th at there be corroboration of the evidence of a child before there can be a conviction. We then said the following: "Law is not static; it is developing. There need not now be a technical approach to corroboration. Evidence of "something more", which, though n ot consisting corroboration as a matter of strict law, yet (satisfies) the court that the danger of false implication ha!< been excluded a nd that it is safe to rely o n the evidence implicating t he J10 accused (will suffice). Odd coincidences constitute evidence of "something more". They re present an additional piece of evidence '· which the c o11rt is entitled tq take into acco\lnt. They provide a . . . ' support of the evidence of a suspect witness o r an accomplice, or any other witness w hose evidence requires c orroboration. This is . the less technical approach as to what constitutes corroboration. Further, odd c oincidences can, if unexplained, b e sup porting evidence." • • • Having said the foregoing 1n that case, we proceeded to identify corroboration evidence in the form of four odd coincidences and upheld the conviction. The two cases that we have cited make it clear that the evidence of a child can be corroborated by evidence of "something more"; which may be even in the form of odd coincidences. In this case the defence have only attacked the court for placing reliance on the medical examination which showed that both the victim and appellant were HIV positive. The appellant's argument on this issu e is that the mere finding that the appellant was HIV positive and that the victim was also found to be HIV positive was not conclusive of the fact that it was the appellant who ' Jll infected the victim with the HIV virus. In other words, the appellant's argument 1s that this piece of corroborative evid~nce •. •. •. •. . ought to have been conclusive. Vole dealt with a similar argument in the case of Nsofu v ,Tbe People 5 • In that case, this is what we saia; Mr. Zamchiya submits that these three items of evide nce all showed that the appellant had the opportunity ,to commit the offence. Miss • • Mwachande meets this argument by saying that although the appellant certainly had s uch opportunity the evidence was insufficient to establish that no one else equally had such opportunity and therefore this evidence is insufficient to afford corroboration that it was the appellant who committed the offence. Miss Mwachande's argument seems to assume that unless the evidence which is relied upon as corroboration is sufficient in itself to prove the fact in issue it cannot be corroborated. This approach misconceives the character of corroborative evidence. If it were necessary for such evidence to be conclusive in itself then the question of corroboration would not arise; it would then be possible to convict without relying on the evidence of the prosecutrix. Corroboration must not be equated with independent proof; it is not evidence which needs to be conclusive in itself. Corroboration is independent evidence which tends to confirm that the prosecutrix is telling the truth when she says that the offence was committed and that it was the accused who committed it. As Lord Diplock put it in D. P. P v Esther at page 1073g: What is looked for under the common law rule is confirmation from some other source that the suspect witness is telling the truth in 'J12 some part of his story which goes to show that the accused committed the offence with wh ich he is charged . • . . • . •. The matte r is placed ''in proper perspective if the wording of the cautionary rule is borne in mind, namely that it is dangerous to convict on the uncorro,borated evidence of a prosecutrix in s uch • cases. The necessity for corroboration does not alter t he fact t hat the evidence on wh ich t he conviction is based is t hat of the prosecutrix; the corroborative evidence serves (on ly) to satisfy the court that it is safe to rely on that of t he prosecutrix" (word in . ' bracket added for clarity). This passage was ably summarised by the editors of the law report in which that case is reported into three holdings, two of which we subsequently applied in Machipisa Kombe v The People6 • Going by our explanation 1n Nsofu v The People 5 , it can be said in this case that the conviction of the appellant was based on the testimony of the victim. The evidence of the HIV status of the victim and the appellant, the evidence of opportunity, the evidence of the appellant having fled Na.konde when th e defilement was revealed and the finding of lack of motive on the part of the prosecution witnesses to falsely implicate the appellant were pieces of evidence that merely served to satisfy the trial court that it was . . . .. ~· r J13 safe to rely on the testimony of the victim. Therefore, it was not necessary for those pieces of evidence to be conclusive in themselves. For the above reasons we find no merit in the arguments on behalf of the appellant; and since that was the only issue which was argued, there is no merit in the appeal. We uphold the conviction and dismiss the appeal. E. C. Muyovwe SUPREME COURT JUDGE E. M. undu SUPREME COURT JUDGE J c~ : SUPREME COURT JUDGE