Mwiya Muleya & Another v The people (CAZ Appeal 6 of 2016) [2017] ZMCA 29 (17 March 2017)

IN THE COURT OF APPEAL OF ZAMBIA CAZ APPEAL NO. 6, 7 OF 2016 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: MWIYA MULEYA 1st APPELLANT PRINCE MUKUPA ^3£ol^aj:pellant ■ccJ'<rc,-ArA-;^<X AND > . J h THE PEOPLE ’■ < 17 MAR 2017 RESPONDENT CP. IMiNA'.. REGISTRY I/''. / CORAM: Chisanga JP, ChE^i^WS^^ongoti JJA ON: 17th January and 17th March 2017 For the 1st and 2nd Appellants: For the Respondent: A. Ngulube, Director Legal Aid Board MK Chitundu (Mrs), Deputy Chief State Advocate JUDGMENT xf CHASHI, JA delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. Nkumbwa v The People (1983) ZR 103 Bright Katontoka Mambwe v The People - SCZ Judgment No. 8 of 2014 John Timothy v Feston Mwamba v the People (1997) ZR 394 Lungu v The People (1968) ZR 31-Reprint Forbes (2001) 1 ALL ER, 686 AU and Another v The People (1973) ZR, 232 Githuku v Republic (2012) EALR, Volume 2, 152 Daka v The People (1972) ZR, 97 - Reprint 9. Hamfuti v The People (1972) ZR, 310 - Reprint 10. Chilufya v The People (1975) ZR, 180 - Reprint -J2- 11. Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People (1988) ZR, 163 12. The Minister of Home Affairs, The Attorney General v Lee Habasonda, suing on his own behalf and on behalf of The Southern African Centre for the Constructive Resolution of Disputes (2007) ZR, 207 Legislation referred to: 13. The Penal Code, Chapter 87 of The Laws of Zambia 14. The Firearms Act, Chapter 110 of the Laws of Zambia 15. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia This appeal is against the Judgment of the High Court of Zambia at Livingstone delivered on the 18th of November 2015, in which the trial Court convicted both the 1st and 2nd Appellants on two (2) counts of Aggravated Robbery contrary to Section 294 (2) of. The Penal Code14. V V v The particulars of the offence on the first count being that Mwiya Muleya and Prince Mukupa, the 1st and 2nd Appellants respectively who were the 1st and 2nd Accused in the Court below on the 12th day of February 2013 at Kalomo, jointly and whilst acting together, being armed with offensive weapons, namely 2 pistols, did rob John Simumba of 1 Blackberry phone and K350.00 cash all valued at K3,150.00 the property of John Simumba and at or immediately before or immediately after such robbery did use or threaten to use -J3- actual violence to John Simumba in order to obtain or retain or overcome resistance to the property being stolen. On the second count the particulars were that the 1st and 2nd Appellants on the 12th day of February 2013 at Kalomo, jointly and whilst acting together, being armed with offensive weapons namely 2 pistols, did rob Fred Siachobe of a Motor Vehicle, Toyota Spacio registration number ALH 3700 the property of Muumbe Siachobe and at or immediately before or immediately after such robbery did use or threaten to use actual violence to Fred Siachobe in order to obtain or retain or overcome resistance to the property being stolen. To support the charges of Aggravated Robbery the Prosecution called v & V' six witnesses, whose evidence is part of the Record of Appeal. In the main and of relevance, the evidence of the Prosecution was that Muumbe Siachobe (PW1), the owner of a Toyota Spacio, registration number ALH 360 asked his brother Fred Siachobe (PW4) on 12th of February 2013 to drop her at the clinic. When she was through, she called PW4 to pick her up and PW4 told her that the vehicle had been stolen. According to PW1, the vehicle was later recovered by the Police and she was on 15th February 2013 called by the police at Kalomo to identify the vehicle, which she did. The evidence of John Simumba (PW2), the Head Teacher at Namwianga Mission School was that on the same day about 09:00 hours, two people went to his office to enquire, about a school place for a child. They left after being told that the child did not qualify for a place. Later in the afternoon, at about 13:00 hours the same people returned and demanded for money from him whilst one of the Accused was pointing a gun at his head. When he told them that there was no money as the parents had sf v' iT sf deposited it in the account, the Accused persons started searching his office and took K300.00 from his pocket. He was then ordered to hand over a batch of keys. He was further ordered to find more money, otherwise he would be shot. According to PW2, as he sat back, PW3, a worker, opened the door and that is when the Accused persons ran out. After shouting that they were robbers, he saw them get into a silver Toyota Spacio. He then informed the Mission Superintendent and phoned the Police using the landline. PW2, later gave a statement at the police station and identified the phone, the keys and the K300.00 which were stolen from him. It was PW2’s evidence that the ordeal lasted for about 30 to 40 minutes during which time there was enough light and he looked at the Accused persons’ faces. It was also his testimony that the two men who attacked him, one wore a pair of jeans and a white T-shirt whilst the other wore a pair of jeans and a checked shirt. PW2 identified the clothes in Court. He also identified both Accused persons in Court. It was PW2’s further testimony that the police brought the Accused tf* if tf* tf" persons to the school where they demonstrated what they did on the material day. PW2 admitted that he did not give the police the features of the suspects as he was not asked to do so and that the suspects were shown to him when they were brought to the school. Further Prosecution evidence was provided by Dan Sianchongwe (PW3), a worker at the school who opened the door to PW2’s office when the two suspects ran away. -J6- According to PW3, he gave chase and tried to stone the suspects but ran away when they pointed a gun at him. It was his evidence that the suspects boarded a Toyota Spacio and drove off. According to PW3, one of the suspects wore a white T-shirt and the other wore a long sleeved black striped shirt. PW3 identified the 1st and 2nd Accused persons in Court as the assailants. It was also his evidence that he saw the accused persons better when the police brought them to the school and they told him that they were the assailants. Fred Siach&be (PW4), also^gave evidence fo the effect that on the 12th of February 2013 after dropping PW1 at the Clinic, he was hired by two men to take them to Namwianga Mission School. He was meeting these people for the first time, although he allowed them to drive the vehicle. When they reached the school, the two men got out of the vehicle and asked him to wait for them. He later saw the two men running towards the vehicle. They then started struggling with him for the key. One man pointed a gun at him and took the key, started the vehicle and reversed and the two men drove off. -J7- According to PW4, he then reported to the police and the vehicle was later recovered in Choma. It was his evidence that he described the appearance of the two men to the police and the clothes they wore. It was his description that one was tall and fat while the other was a bit short, slim and young. PW4 identified both Accused persons in Court. It was PW4’s further evidence that he next saw the suspects in police cells at Kalomo and recognised them. PW5 Nyanfuku Pius Ilunga, the Forensic Ballistic expert identified the two pistols as air pistols which were capable of causing fear to any sane person and canpause injury tcuany person on^e fired. # The Prosecution also called Mctpenzi Mwanamuchende (PW6) the investigating officer whose evidence was that he received a report of Aggravated Robbery from PW4, that he had been robbed of a Toyota Spacio. On the same day he also received a report from PW2 that he had been robbed of his Blackberry phone and K300.00 by two men using pistols. He later received information from Sergeant Mpundu that the vehicle had been impounded in Choma and two pistols, a phone, a bunch of -J8- keys and K350.00 cash and been recovered. The suspects were later taken to Kalomo Police Station. He interviewed the suspects and they voluntarily admitted the charge and led him to the scene of the crime where they demonstrated how they stole. According to PW6, he charged the two suspects under a warn and caution and the two admitted the charge. PW6 identified the two Accused persons in Court as well as the other items, which were subsequently produced and admitted into evidence. It was PW6’s evidence that the suspects were apprehended by Sergeant Mpundu, wjao was not before the Court as?he was unwell.?' The Record of Appeal on page 16, shows that the Prosecution after the evidence of PW6, applied for an adjournment to enable them call Sergeant Mpundu as their last witness who on that day was unwell, which was objected to by the defence. The Court noted that the Prosecution had developed the practice of including witnesses on the list after trial had commenced and that it was prejudicing the defence which did not have the opportunity to scrutinise the weight of that evidence. As a result, the Court refused -J9- the inclusion of Sergeant Mpundu as a witness, leaving the Prosecution with no other option but to close its case. In his defence, the first Accused (Al) gave sworn evidence and testified that on the 12th of February 2013, he was in Choma. That when he approached the taxi rank, he saw a Toyota Spacio which was a Taxi loading passengers to Lusaka. As he was travelling to Kitwe, he approached the driver, who told him to load his bags on the vehicle. After loading the bags he went to buy talk time nearby from a street vendor. As he was waiting for change, the Taxi sped off when a traffic vehicle with sirens approached it. According to Al, he then went and reported to the police who tf- if tf* *■ «’’ promised to get back to him. He was later told that the Taxi had been impounded. He then went back to the police and was apprehended to help with the investigations. It was also Al’s testimony that he found A2 in police cells whom he was seeing for the first time. He later learnt from A2 that he was a passenger in the Toyota Spacio which was later involved in an accident and that two people escaped. -J10- It was Al’s further evidence that the police took him and A2 to PW2 and introduced them to him as the people who had robbed him. That it was at this time that he learnt of the robbery. A2 equally gave sworn evidence in his defence. It was his evidence that on 12th of February 2013, he was travelling from Livingstone to the Copperbelt, on a minibus which developed a mechanical fault, as a result all the passengers were refunded. Then a Spacio which already had some passengers came and he got on it with another lady. A2 told the Court that he was seeing the driver for the first time as well as the other passengers. According to A2, when they reached-Choma, two ladies disembarked and only three people remained in the vehicle. It was A2’s evidence that at that juncture after another intending passenger left his bags in the vehicle and walked away, the driver all of a sudden drove off as he was running away from traffic officers. That he headed towards the town centre with the traffic officers in pursuit. -JI 1- Due to the congestion in town the driver suddenly stopped and a light canter rammed into the vehicle from the back. That it was then that the driver and another man ran away from the car. A2 told the Court that at this stage he was confused. He came out of the vehicle and just stood by the door. He then accompanied the officers who drove the vehicle to the Police Station. A2 denied having any idea about the robbery. That he only learnt about it at the Police Station. It was A2’s evidence that he was detained at the station where he met Al and they were later taken to Kalomo Police Station. According to A2, they were lat^r taken to a school by the Polipe into an office where they found a man and the Police told A2 to stand in different positions as they took pictures. After a recap of the evidence of both the Prosecution and the defence, the learned trial Judge in our view made no effort to carefully evaluate the evidence. In a mere fifteen (15) lines, simply after stating that the Accused persons failed to rebut the allegations, denying them, and stating that they were mere passengers in the Spacio car enroute to the Copperbelt, the trial Judge came to the conclusion that the offence -J 12- of Aggravated Robbery was committed by the Accused persons as they were positively identified by PW4, PW3 and PW2 who gave the same description of clothing worn by them. In the appeal before this Court, the Appellants only advanced one ground of appeal which is against both conviction and sentence, that the trial Court erred in fact and in law to convict them of armed Aggravated Robbery in the absence of evidence on the use of firearms and to sentence them to death. At the hearing of the appeal, Mr. Ngulube, Counsel for the Appellants relied on the written Heads of Arguments and submitted that there was no direct or indirect evidence of the use of firearms. That the pistols that were recovered were not tested, but were checked and found to be outside the meaning of The Firearms Act15, as they were air guns. Reference was made to Section 2 of the Act on the definition of a firearm which defines a firearm as meaning: “(a) Any lethal barreled weapon of any description from which any shot, bullet, bolt or other missile can be discharged or which can be adapted for the discharge of any such shot, bullet or other missile. -J13- (b) Any weapon of any description designed or adapted for the discharge of any noxious liquid, gas or other thing. (c) Any barrel or any frame or body to which a barrel may be attached, incorporating a mechanism designed to cause controlled detonation or discharge of any shot, bullet, bolt or other missile and any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing such weapon; But does not include an air gun which is not of a type declared by regulations made under this act to be specially dangerous or any apparatus designed especially for the tf" V' V discharge of insecticides, fungicides, industrial or fire-fighting chemicals or for medical or surgical use” Counsel placed reliance on the cases of Nkumbwa v The People1 and Bright Katontoka Mambwe v The People2. On the basis of these authorities Counsel implored the Court to allow the appeal, quash the conviction for armed Aggravated Robbery and in its place substitute a conviction for ordinary Aggravated Robbery and as a consequence set -J 14- aside the death sentence and impose an appropriate custodial sentence taking into consideration the mitigating factors. In response, the State also filed Respondent’s submissions on which Mrs. Chitundu, placed reliance. Counsel drew the attention of the Court to the case of Bright Katontoka Mambwe v The People2 which was cited by the Appellants and the case of John Timothy and Feston Mwamba v The People3 and submitted that according to the explanation given by the Ballistic expert, the pistols in issue fell under the definition given to a firearm by the Act. It was Counsel’s contention that the excepted air guns are such air guns which are not dangerous in any way but are specifically made for ' V V' specific purposes such as spraying insecticides. According to Counsel, the Accused persons were armed with firearms within the meaning of The Firearms Act14 and they were rightly convicted under Section 294 (2) of The Penal Code13. Counsel urged the Court to uphold both the conviction and the sentence. We have carefully considered the evidence on record, the Judgment appealed against and the submissions by both Counsel. On the ground of appeal before us, we are being called upon to determine whether the conviction ought to have been under section 294 (1) or 294 (2) of The Penal Code13. We are in total agreement with Counsel for the Appellants that the conviction if any, ought to have been under Section 294 (1) of The Penal Code13. The evidence of PW5, the Forensic Ballistic expert was that the two pistols were air pistols. Given the meaning assigned to a firearm by Section 2 of The Firearms Act14, air guns are excepted and do not therefore qualify as firearms. On that ground, the appeal would succeed. Howevey, our concerts in the maiiy is to establish whether the conviction was safe or not. Although the Appellants have not raised the issue, it is apparent that they were convicted purely on the basis of identification arising from the description of the clothing said to have been worn by the suspects. This is what the learned trial Judge had to say at page 67 line 13 of the Record of Appeal: “It was established that the Accused persons were positively identified by PW4, PW3 and PW2 who gave the same description of the clothing worn by the accused persons”. -J16- There cannot be a satisfactory identification based on the description of what the suspects were said to have worn. In that respect we endorse the holding of the High Court in the case of Lungu v The People4 where it was held that an identification parade is not satisfactory and the result is not admissible in evidence, if there is any possibility that the suspected person was identified by reference to the clothes he was wearing. Scott, AG J at page 33 had this to say: “There are, I believe, excellent instructions laid down by the police authorities to cover such circumstances, and it is of the essence that the witnesses are being asked to identify t - V ♦ . ' . < - f - suspected persons and not items of clothing”. V* fT All the three Prosecution witnesses referred to by the trial Judge, namely PW2, PW3 and PW4 were not asked by the police to give a description of the features of the suspects but of the clothes they wore which they identified in Court. What gives a more damaging complexion to the identification is that there was a dereliction of duty by the investigating officers in that no identification parade was ever conducted and no explanation was -J17- given by their failure to do so. Instead, the Appellants were subjected to Court room or dock identification by PW2, PW3 and PW4. It has been held in a plethora of cases that it is undesirable for the police to do nothing about the question of identification until the Accused is brought before the Court. The reasoning behind that is that, at first sight it might seem that there could not be better evidence of the identification of the Accused than the direct statement of a witness in Court that the Accused is “the man” but the witness is all too apt to think that the police must have gotten the right man who is actually in the dock, with the result that he may be prepared to swear positively to a fact of which he is' by no means certain. v’ V V v* v* It is therefore, safer and advisable that where the identity of a person is said to be known or there is an allegation by the witnesses that they are able to identify the Accused, that an identification parade is held. Before the identification parade, the police must make a record of the witnesses description of the suspect. In the English case of Forbes5 the House of Lords was of the view that an identification parade is mandatory where there is a witness who has identified a suspect or who identified a suspect or who feels that -J 18- they are able to identify a suspect. That there is a mandatory duty on the police to hold a parade wherever the suspect disputes the identification. Therefore, dock identification, that is identification at the trial itself, in Court, without any preceding method of identification is normally inadmissible, although there are exceptions. In our jurisdiction, this issue was aptly dealt with by the Court of Appeal in the case of Ali and Another v The People6. In that case, the Appellants were convicted of the offence of theft of Motor Vehicle. The evidence against the first Appellant was overwhelming. The evidence against the second Appellant rested on an identification tf* V" v* made in Court at the preliminary inquiry supported by his silence in the face of a statement implicating him alleged to have been made in his presence by the first Appellant. The Court of Appeal held that: “Although it is within the Courts discretion to allow it in appropriate circumstances, a Court room identification has little or no value particularly where there is no satisfactory -J19- explanation for the failure to hold an identification parade and there is no other evidence incriminating the Accused”. This position was also summed up by the Court of Appeal of Kenya in the case of Githuku v Republic7where they had this to say: “A dock identification is worthless and a Court should not rely on such identification unless it has been preceded by a properly conducted identification parade. A witness should be asked to give a description of the Accused and then a fair identification parade should be arranged. The evidence of Faith as it stood, devoid of any description of the Appellant t - w" 1 . t . t - t - given to the police prior to the identification parade being v V- arranged and unsupported by lack of evidence of the existence of identification parade could not be relied upon to convict the Appellant”. The question which then remains and needs to be posed at this instance, is whether there is any other evidence incriminating the Appellants having done away with the issue of identification. We note from PW6 that according to his evidence he interviewed the two suspects and they voluntarily admitted the charge. Further that --WV' >-'* -J20- the suspects led PW6 to the scene of the crime and demonstrated how they stole. The Record of Appeal at page 14, does not show whether at this stage when PW6 led this evidence, the trial Court gave the Appellants the opportunity to object. In any case, no confession statement under warn and caution was produced by the Prosecution to show that the admission was done freely and voluntarily and also to afford the Appellants an opportunity to object. Here we again endorse the holding of the High Court in the case of Daka v The People8 where Scott J, held that: “A confession is not properly admissible unless the accused is given the opportunity to object to its production in evidence”. Further, in the case of Hamfuti v The People9 the Court of Appeal held that: “Whether or not an accused person is represented, a trial Court should always, when the point is reached at which a witness is about to depose as to the contents of a statement Tv ask whether the defence has any objection to that evidence being led”. We also note that there is no evidence of any warn and caution being administered by the police before the alleged leading and demonstrating at the scene of the crime. Leading and demonstrating in our view, is self incrimination and carries the same weight as a confession and as such the police were obliged to administer a warn and caution before the leading. As was held by the Supreme Court in the case of Chilufya v the People10 as a general rule in this Country, a confession made by a Defendant to a person in authority, such as police officer^-in the absence of any warning, is prima facie inadmissible. It is only in very exceptional circumstances that such a confession will be admissible. In any case we note that prior to the alleged leading, the Police had been to the School and the alleged leading of the Appellants to the School by the Police did not yield any real or fresh evidence in support of the Prosecution’s case. We are in that respect recognizant of the -J22- case of Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People11 where it was held inter alia that: “The leading by an Accused of the Police to a place they already know and where no real evidence or fresh evidence is uncovered cannot be regarded as a reliable and solid foundation on which to draw an inference of guilt”. In the view we have taken of this matter, the conviction of the Appellants is unsafe and cannot therefore be allowed to stand. We wish to reiterate as earlier alluded to that in the matter before us, the learned trial Judge made no attempt to evaluate the evidence and ♦ • * - f. f- < ~ as-such did not ^pply her mind/ully to the issues which were^before her. We would in that respect have been inclined right from the beginning to state that there was no Judgment at all as it contravenes the provisions of Section 169 (1) of The Criminal Procedure Code15, which provides that every Judgment shall contain the point or points for determination of the decision thereon and the reason for the decision, save for what we have already stated, as regards the convictions after consideration of the matter. -J23- We are concerned with the abrupt manner in which the learned trial Judge arrived at her conclusion, without evaluation of the evidence. In the case of The Minister of Home Affairs, The Attorney General v Lee Habasonda, suing on his own behalf and on behalf of The Southern African Centre for the Constructive Resolution of Disputes12, the Supreme Court in sending the matter back to the High Court for re trial had this to say at page 214 against a High Court Judgment which they described as a "purported” Judgment: "We must, however, stress for the benefit of the trial Courts that every Judgment must reveal a review of the evidence, where applicable, a summary_ of the arguments and '■ v submissions, if made, findings of fact, the reasoning of the Court on the facts and the application of the law and authorities, if any, to the facts. Finally, a Judgment must show the conclusion. A Judgment which only contains verbatim reproduction and recitals is no Judgment”. In emphasizing the aforestated, they made reference to the case of Kunda and Others v The People (1980) ZR, 105, a criminal case, where -J24- the trial Court made a very short ruling in the trial within a trial. The Supreme Court was of the view and accordingly held that the results of such brevity is that there is no Judgment on the trial within a trial and the Appellants were deprived of the opportunity to appeal against it. That said, the sum total of this appeal is that the appeal is allowed, the convictions are quashed, the sentences set aside and both Appellants are set at liberty. COURT OF APPEAL JUDGE NGOTI COURT OF APPEAL JUDGE