Kakumba v The People (SCZ Appeal 479 of 2013) [2014] ZMSC 30 (9 March 2014)

IN THE SUPREME COURT OF ZAMBIA 479/2013 HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ/APPEAL № BETWEEN: NICKSON KAKUMBA Appellant AND THE PEOPLE Respondent CORAM: PHIRI, JS, LENGALENGA AND HAMAUNDU, AG. JJS On 7th January, 2014 and 10th March, 2014 For the appellant Aid – Legal : Mr. A. Ngulube, Director of Legal Aid Board For the respondent : Mr. R. L. Masempela, State Advocate – National Prosecutions Authority J U D G M E N T LENGALENGA, AG. JS delivered the Judgment of the Court. Cases referred to: 1. MUSHALA AND OTHERS v THE PEOPLE (1978) ZR 58 J2 2. ZULU AND OTHERS v THE PEOPLE (1978) ZR 227 3. R v TURNBULL (1976) 3 ALL E R 549 4. CHIMBO AND OTHERS v THE PEOPLE (1982) ZR 20 5. THE PEOPLE v ROBERT PHIRI AND OTHERS (1980) ZR Legislation referred to: 1. THE PENAL CODE, CAP 87 OF THE LAWS OF ZAMBIA The appellant was convicted of murder contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of offence are that the appellant on 8th August, 2010 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, did murder one Tana Chisopo. The appellant was sentenced to the mandatory death penalty for the offence of murder. He now appeals against the conviction. The prosecution case mainly rested on the evidence of five witnesses, namely, PW1, Linda Chisopo, PW2, Mary Kabamba Chisopo, PW3, Joyce Chileshe, PW5, Woman Inspector Rollen Sikabole and PW7 Detective Inspector Dennis Kabundula. The evidence in brief was to the effect that at about 02:00 hours on 8th August, 2010 PW1 was returning home from a social function at JJ Bar in Luangwa township in Kitwe. She was in the J3 company of her sister, PW2, her brother, Tana Chisopo, the deceased and her friend, Sylvia. On the way, a group of people followed them until the appellant caught up with them. He twisted PW1’s arm as he tried to get her cell phone. As the two were struggling and PW1 was shouting for help, PW2 and the deceased, Tana ran home to call their mother. By the time, PW1’s mother, PW3, Joyce Chileshe arrived at the scene with Tana, the appellant had left with PW1’s cell phone. However, the deceased, Tana ran after him and caught up with him a short distance away. Thereafter, a struggle ensued between the deceased and the appellant. PW1 saw the appellant remove an object from his pocket and stab Tana with it in the stomach. Tana fell to the ground and he was bleeding from the wound he sustained. PW1 and others rushed Tana to Luangwa Township Clinic but by then he had died. Later around 04:00 hours, PW1 and the other relatives took his body to Kitwe Central Hospital mortuary. At the trial, PW1 testified that she recognised the appellant that night because she had known him for a year before the incident. She stated that he used to live in Mulenga township J4 where she also lived. PW1 further stated that on that night there was moonlight and that she was able to recognise him as she struggled with him. She testified that she even grabbed one of his upper garments namely a black jersey. Some months later, she identified the appellant at an identification parade at Wusakile Police Station. PW2, Mary Kabamba Chisopo also narrated the incident of 8 th August, 2010 and confirmed that she and Tana were in PW1’s company as they returned from JJ Bar. She testified that PW1 was attacked and that her brother, Tana and mother, PW3 rushed to PW1’s rescue and that she also followed. As she got near to the scene, PW2 saw a man holding Tana by his shirt and strike him in the abdomen and run away. Then before Tana fell to the ground, he turned to PW2 and said: “Kabamba, I have been stabbed.” PW2 further testified that on that night she was able to see the appellant strike her brother, Tana because there was moonlight. She, however, stated that at the time of the incident she did not J5 know the appellant’s name even though she used to see him in Mulenga township since 2009. PW3, Joyce Chileshe, the mother to PW1, PW2 and the deceased, Tana, testified that she was awakened by Tana who informed her that he and Linda (PW1) had been attacked. As Tana and PW2 rushed to where their sister had been attacked, she also followed. As she approached the scene, she called out to her children to return home, but PW2 urged her to hurry as Tana had been stabbed. When she arrived at the scene, PW3 found her son lying on the ground and he asked her to remove his shirt because he felt very hot. She removed his shirt and observed a stab wound on the left side of his body and his intestines protruding. PW3 called for help from the neighbours and they managed to transport him on a wheelbarrow to Luangwa Police Post. By the time they arrived there, Tana was already dead and his body was later transported to Kitwe Central Hospital. PW5, W/Inspector Rollen Sikabole of Wusakile Police Station was assigned to conduct an identification parade on 18th February, 2011. She paraded eight men from whom PW1 identified the appellant. J6 PW6, Detective Sergeant Bernard Musonda, a scenes of crime officer took photographs at the identification parade on 18th February, 2011. PW7, Detective Inspector Dennis Kabundula investigated the case and interviewed PW1 who gave him the appellant’s name as the person who attacked her and stabbed her brother. He also interviewed the other witnesses and attended the postmortem examination conducted on the deceased’s body by Dr. Olga. He later charged and arrested the appellant for the offence of murder and caused him to be detained. The appellant was subsequently tried and convicted for murder and sentenced him to death. Counsel for the appellant, Mr. A. Ngulube filed heads of argument on behalf of the appellant together with grounds of appeal on which the appellant relied. The grounds of appeal read as follows: 1. The trial court erred in law and in fact by finding that the identification parade was properly conducted and that the accused was not prejudiced in any way but failed to find that the identification evidence was weak and needed to be supported by something more. 2. The court below erred in fact and law by finding that the possibility of an honest J7 mistake in identifying the appellant had been eliminated. In support of grounds one and two, learned Counsel for the appellant, Mr. A. Ngulube submitted that there was no dispute as to the death of the deceased, Tana Chisopo. He submitted further that he died from a stab wound inflicted on him on 8th August, 2010. The dispute is on the identity of his attacker. He submitted that the appellant did not deny being a resident of Mulenga township. He further submitted that neither PW1 nor PW2 gave any description of the assailant to police for purposes of investigation. He noted that PW1 claimed to have known the appellant for a year while PW2 claimed to have known him since 2009. PW2 also claimed to have seen him at JJ Bar on the night of the incident. Learned Counsel for the appellant submitted that this was a case of recognition of a known person. Mr. Ngulube contended that the failure by PW1 and PW2 to give details of the description of the attacker renders any purported identification weak. He submitted that the identification of the appellant as the attacker was mistaken. He argued that even in recognition cases, there is the possibility of mistaken J8 identification. To support this argument, he relied on the cases of MUSHALA AND OTHERS v THE PEOPLE 1 and ZULU AND OTHERS v THE PEOPLE 2 in which this Court accepted the possibility of mistaken identification even in recognition cases. In MUSHALA AND OTHERS v THE PEOPLE this Court held: “Although recognition may be more reliable than identification of a stranger, even when the witness is purporting to recognise someone who he knows, the trial judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made, and of the need to exclude the possibility of honest mistake; the poorer the opportunity for observation the greater that possibility becomes……” Further in ZULU AND OTHERS v THE PEOPLE, we made the same point. Learned Counsel for the appellant submitted that in this case, there was the danger of mistaken identification. He submitted further that PW1 and PW2 saw the attacker at night though they asserted that there was moonlight. Mr. Ngulube argued that the fact that PW1 was pursued and accosted, obviously terrified her and that the circumstances were less perfect for identification. He pointed out to the Court that J9 although PW1 and the deceased were pursued by a group, no-one was identified by name or description. He contended further that there was no odd coincidence in this case which could have rendered the doubtful identification secure (see R v TURNBULL 3 ). He further argued that the court erred in finding that the possibility of an honest mistake in identifying the appellant as the attacker had been ruled out as no attention was paid to the issues canvassed. He submitted that failure to give descriptions was a weakness which needed something more. He submitted further that the courtroom identification of the appellant by PW2 is of little value if no prior identification was done. Learned Counsel for the appellant submitted that, therefore, this was a case of single witness identification. He contended that there was a possibility that the case was massaged along the way as those who gave statements on the day of the incident, including PW2 stated that the attack was by unknown people. He observed that PW1 gave her statements after the identification parade and then she was able to name the J10 appellant and describe him. Mr. Ngulube submitted that this was nothing but engineered identification. Learned Counsel for the appellant urged this Court to allow the appeal, quash the conviction, set aside the sentence and set the appellant at liberty. Although the learned State Advocate did not file written arguments in response to the appellant’s heads of argument, he responded orally in court. He agreed with Counsel for the appellant’s submission that in both identification and recognition cases, there is always a danger of honest mistake. He submitted that, however, unlike in cases of single identifying witnesses where the danger is greater, in the present case the appellant was identified by two witnesses. He submitted further that the appellant was previously known to the identifying witnesses, thereby, less likely to be mistaken. Mr. Mpalo further submitted that the trial judge properly subjected the identification evidence to a test and found that the possibility of an honest mistake in identifying the appellant had been eliminated. He stated that that is reflected on page J9 of the judgment where the Judge considered the circumstances in which the appellant was J11 observed. He submitted that in particular the availability of moonlight provided the opportunity for observation of the appellant by the witnesses. Further, the encounter PW1 had with the appellant took some considerable time. Learned Counsel for the respondent submitted that the learned trial Judge also considered the fact that the appellant was known to the witnesses prior to the incident. He also observed that they had in fact seen him earlier that night at the same bar where both PW1 and PW2 had gone for a social function. The trial Court further found as a fact that the appellant and the identifying witnesses had come in close proximity so as to be able to recognise him as a person known or familiar figure in the community. Mr. Mpalo submitted further that this finding is supported by PW1’s evidence that she struggled with the attacker and even got his jersey. He added that this is also indicated in PW2’s evidence that she was standing nearby when she saw the appellant holding the deceased. He submitted that, therefore, in view of the foregoing, that the Court below was on firm ground by finding that the possibility of an honest mistake in identifying the appellant had been eliminated. J12 The learned State Advocate responded to Counsel for the appellant’s contention that the failure to give the description of the appellant was a weakness which needed something more. He submitted that the evidence shows that a name was given to the police by PW1 thereby indicating that the appellant was previously known and that this was sufficient and does not require any supporting evidence. Mr. Mpalo further responded to the appellant’s ground one that the trial court erred in law and in fact by finding that the identification parade was properly conducted and that the accused was not prejudiced in any way. He submitted that the findings by the trial Judge to that effect were supported by the evidence of PW1, PW5 and PW6 and also the evidence of the appellant himself. Mr. Mpalo submitted that the identification parade was not in fact relevant because the appellant was already known. He, therefore, prayed that the appeal be dismissed. Mr. Ngulube reacted by submitting that PW1 only gave the name of the appellant about six months after the incident and not immediately after the deceased passed on. J13 We have considered the submissions by Counsel from both sides and perused the evidence on record. We agree with the legal arguments that even in recognition cases, there is the possibility of mistaken identification and that there is need to exclude the possibility of honest mistake (see MUSHALA & OTHERS v THE PEOPLE and ZULU & OTHERS v THE PEOPLE). On the commission of the offence, there is undisputed evidence corroborated by the post-mortem examination report, exhibit “P2” that the deceased was stabbed. This exhibit “P2” indicated the cause of death as: “Stab wound of abdominal cavity with profuse internal bleeding, pain and bleeding shock.” Another significant finding in the said report is: “Death due to stab wound of abdominal cavity with injury of abdominal part of aorta with profuse internal bleeding (3.5L of fresh blood).” As to the identity of the offender, the appellant argued that the identification evidence was weak and needed to be supported by something more. Further, in ground one the appellant alleged J14 that the trial court erred in law and in fact by finding that the identification parade was properly conducted and that the accused was not prejudiced in any way. Our perusal of the appellant’s arguments in support of this ground shows that Counsel for the appellant did not satisfactorily show in what way or manner the identification parade was improperly conducted. He only argued that PW2 and other witnesses who witnessed the stabbing incident were not called to identification parade. We are of the considered view that the omission in itself does not render the identification improper. We accept Mr. Mpalo’s submission that the learned trial Judge’s findings to the effect that the identification parade was properly conducted was supported by the evidence of PW1, PW5 and PW6 and even the evidence of the appellant himself. In fact, we are further of the considered view that the conducting of an identification parade so that PW1 could identify her attacker was just a formality as the appellant was already known to PW1. She claimed that she had known the appellant for about a year prior to the incident. She also testified that the appellant was a resident of Mulenga township. PW2 also testified that she, too, J15 had known the appellant since 2009 even if she did not know his name. Furthermore, the fact that the appellant was a resident of Mulenga township was not disputed by the appellant. We also agree that this was more a case of recognition as opposed to identification of a stranger. We accept the argument that the appellant was known by PW1 and PW2 and that, therefore, description of the appellant was not necessary. We find that the omission by PW1 and PW2 to give a description of the appellant was, therefore, not fatal to the prosecution case. It is sufficient that the circumstances under which they purported to recognise him were convincing and, therefore, satisfactory. The state of light, in this case, moonlight, the amount of time that the struggle between PW1 and the appellant took for PW1 to even remove his black jersey and the fact that PW1 and PW2 had seen him that same night at JJ Bar were all factors that were considered by the trial court. We accept learned Counsel for the respondent’s submission that the issue of possibility of an honest mistake in identifying the appellant was considered by the learned trial Judge. He tested J16 the evidence by PW1 and PW2 to exclude the possibility of honest mistake being made. We find, therefore, that the learned trial Court was on firm ground when it found that the identification parade was properly conducted and that the accused was not prejudiced in any way. In CHIMBO & OTHERS v THE PEOPLE 4 , we held that recognition is accepted to be more reliable than identification of a stranger. The learned trial Judge applied the test in that case and accordingly excluded the possibility of an honest mistake on the part of PW1 and PW2 as to the identity of the appellant in this case. We find that, therefore, the learned trial court’s reliance on PW1 and PW2’s evidence of identification cannot be faulted on the mere ground that PW2 and other potential witnesses were not called to the identification parade. We further refer to the case of THE PEOPLE v ROBERT PHIRI AND ANOTHER 5 in which we held that the adequacy of evidence of personal identification always depends on all the circumstances surrounding each case, which must be decided on the merits. J17 We, therefore, find no merit on both grounds of appeal and we, accordingly, dismiss them. The net effect of this is that the entire appeal fails and we dismiss it. We, accordingly uphold the conviction and the death sentence. ……………………………………………. G. S. Phiri SUPREME COURT JUDGE ………………………………………… …………………………………………… F. M. Lengalenga ACTING SUPREME COURT JUDGE E. M. Hamaundu ACTING SUPREME COURT JUDGE