People v Brewine Mulanda (3D/12/23) [2023] ZMSUB 17 (16 May 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/12/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: ~·•·~-....... M ~ATfE ,. r.t,, f3b~ ~:tot H THE PEOPLE AND BREWINE MULANDA Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National For the Accused: In person Prosecution Authority. JUDGMENT Cases referred to: i. ii. iii. iv. v. vi. Mwewa Murono v. The People (2004) Z. R. 207 (S. C.); Saluwema V The People (1965) ZR 4 (CA); Miloslav v. The People (Appeal No. 049/2013); Haonga and Other v. The People (1976) ZR 200; David Zulu v. The People (1977) ZR 151; Nsofu V The People (1973) Z. R. 287 (S. C.); J1 vii. Steven Kalibuku v. The People SCZ Appeal No. 56 of 2015; viii. Donald Fumbelo v The People SCZ Appeal No.476/2013; ix. x. Sumani v. R (1959) (2) R & N 403; and Machipisha Kombe vs. The People Judgment No. 27 of 2009. Statute and other sources: i. ii. The Penal Code Act, Chapter 87 of the Laws of Zambia Magistrate’s Handbook; 6th Edition (1991); E. J. Introduction 1. The accused stands charged with one Count of Burglary and Theft, contrary to section 301(a) and 272 of the Penal Code Chapter 87 of the Laws of Zambia. The facts in this matter are that, the accused on 24th March, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, during the night did break and enter the dwelling house of RODGERS SINDALA with intent to steal in fact did steal items herein: one (1) bicycle; one (1) measuring tape; and a trowel, totalling the sum of K2, 395.00 in value. 2. On 29th March, 2023, the accused was made to stand trial, and was arraigned on the charge succinctly delineated in the indictment which charge was expediently read to him by this honourable court in intelligible fashion; to which the accused plead NOT GUILTY. Background facts Prosecution’s case 3. With this backdrop, I now consider the evidence before me. 4. This matter came up for trial on 11th April, 2023. The prosecution called as its first witness, PW1, one RODGERS SINDALA: aged 35 years of Old Location, a Builder by trade, who gave his testimony on oath upon swearing on the bible in English. J2 5. In giving the lowdown of the facts on what transpired on the 24th March, 2023, he related that on the material date he was asleep until he was awakened by the sound of a creaking door moving on its hinges in the small hours of the morning around 01:00hrs, as it was being opened. 6. He then scurried out of bed; exited the bedroom to investigate what was happening. He gingerly made his way to the living room and much to his dismay– a bicycle with a step through frame colloquially known as “women’s or girls’ bicycle”, a champion brand was missing, along with: a hoodie, measuring tape and trowel which had been loaded on the bicycle in question. He further discovers that he was also missing: three (3) 10 litres jerry cans; five (5) pots and a pan. 7. He then noticed that the main door to the house was left ajar. Distraught by his finding, he unflinchingly– grasped the nettle and bustled into the drizzly night and with the help of a light source on his phone he discerned on the wet earth noticeable prints left by the suspect which he conscientiously trailed. 8. He soon noticed tire marks of the bicycle in question which he followed on until five houses later when he aborted the mission and turned back. 9. While in the house, PW1 discerned yet again sounds allied to someone suspiciously making his way into the house. Gripped with concern and with bated breath, he hastened to look, but this time packed with a catapult– he tracked the marks further than before. 10. Retreating from his fruitless search, he noticed a strange pair of print marks which caught his attention, only to disappear into the bush. As fate would have it, a few meters from the disappearing marks he happened upon what he identified as his “pots and jerry cans”. 11. Relieved in part on his discovery, he called on members of his household to come and retrieve the pots and cans. And while in the J3 said place, he noticed the presence of a man sojourning suspiciously within the ace of the said place, PW1 waiting for no propitious occasion apprehended the man who he later identified as the accused and shouted, “thief”! 12. In response to the shout, the neighbouring dwellers descended upon the accused; helped restrain the same and then consigned him to Mbala Police Post where he was detained and questioned. 13. On the 11th day of April, 2023, PW1, made a dock identification of the accused person, as the person who he had restrained on 24th March, 2023. 14. During trial PW1 observed that the police officer recovered the bicycle in question a week later. PW1 positively identified: three (3) 10 litres jerry cans, five (2) pots; one (1) trowel, and bicycle. 15. The hereinbefore items were collectively marked for identification purposes as “ID1”. He also made mention of other items which were recovered in the process, these included: one (1) cap, white and brown in colour, one small bag, blue in colour and one (1) black coloured dress. The same were collectively marked as “ID2”. 16. PW1 was unperturbed during cross-examination and there was no re- examination on the part of the state. 17. On 21st April, 2023, the matter came up for continuation of trial. The state called as its second witness PW2, a constable by the name of Aubrey Mwanza, 29 years old of Little Polland compound in Mbala, who recounted as hereunder. 18. On 27th March, 2023, around 09:00hrs in the morning whilst on duty, at Mbala Police in the CID’s office, I was allocated a docket relating to a charge of Burglary and Theft, in the matter of RODGERS SINDALA of New Location, age 35 years, the said reported that his house had been broken into by the accused. J4 19. PW2 outlined that the stolen items were valued at K2, 395.00. The items stolen during the incidence around 01:00hrs in the wee hours by the accused in New Location are: (i) three (3) plastic 10 litres jerry cans, green in colour; (ii) five (5) pots; measuring tape; (iii) one (1) trowel, and (iv) bicycle. 20. Acting on the report, PW2 came to learn that the suspect was already in police custody, the same was brought by the complainant, PW1, with the tape measure and trowel. 21. During the interview the accused denied committing the offence. However, he led the police to where the bicycle was being kept. A warn and caution was administered to the accused in bemba, a language he fully understands, wherein the accused offered a voluntary statement to which he gave a flat refusal to having committed the subject offence. 22. In the finally analysis, PW2 submitted that he wished that the articles marked “ID1 and ID2” be tendered into evidence. The documents were marked and produced as “P1 and P2”, respectively. 23. PW2 was cross-examined and there was no re-examination on the part of the state. The prosecution consequently closed its case. 24. At the close of the prosecution’s case, the court then found the accused with a case to answer and put the same on his defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. The Defence’s case 25. The accused did not call any witnesses. The accused stood in the witness box as DW1 and gave sworn evidence with his particulars as per the record. 26. In his defence on 3rd May, 2023, the accused gave a version of the story which in essence was disparate that of the prosecution’s witnesses. J5 27. The accused spun a tale about how he received a certain JOSEPH IDALA at his place who procured a 90kg bag of maize from him on credit, seeing as he is farmer who dabbles in odd-job off season in order to provide a basic subsistence. He related that he had cultivated some maize which he sold on credit to the said IDALA. 28. DW1 remarked that there had been an inordinate delay on the part of IDALA to payback the monies owed. Thus, on 4th March, 2023, I found IDALA with a bicycle loaded with other articles. I consequently dispossessed the same of his bicycle along with other articles, i.e., trowel and measuring tape, as security for the money owed and kept them at home. 29. On 25th March, 2023, between 06:00 and 07:00hrs in the morning, I set out to see a Mr. Muhowo in Kampompo compound, in Mbala, carrying with the measuring tape and trowel, as I was going to fit a door frame for the same. 30. On my way back from Mr. Muhowo’s place I encountered the complainant who identified the articles I was carrying and as a consequence we were at outs with the complainant over the items in question. 31. In the process I was dragged to the police, where a docket was opened, but before that, I took the police to the place where I had kept the bicycle. 32. In cross-examination the prosecution in teasing out information from the DW1 inquired into whether or not he would call for the testimony of one IDALA, this he said intimating a vein of deceit on the part of the accused. 33. The accused asserted that he would not be calling for him, as the same cannot be found, but in the alternative maintained in rejoinder that he never stole the bicycle or the articles that were found on his person. J6 34. In re-examination the accused remarked that he had exhaustively answered the questions advanced by the prosecution. 35. That marked the end of the defence’s case. Facts in dispute 36. This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: the accused disputes entering the dwelling of one RODGERS SINDALA in the dark of night and stealing from the said dwelling; and that the property in the accused possession were taken from the complainant’s premises. The Law Establishing the Charge in Casu 37. The Penal Code Act, Chapter 87 of the Laws of Zambia in section 301(a) constitute the offence burglary, and enacts as follows: Any person who- (a) breaks and enters any dwelling house with intent to commit a felony therein; or (b) having entered any dwelling house with intent to commit a felony therein, or having committed a felony in any such dwelling house, breaks out thereof; is guilty of the felony termed "housebreaking" and is liable to imprisonment for seven years. If the offence is committed in the night, it is termed "burglary" and the offender is liable to imprisonment for ten years. And section 272 of the same provides that: … “Any person who steals anything capable of being stolen is guilty of the felony termed "theft", and, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, is liable to imprisonment for five years”. Ingredients to Be Established to Prove the Accused Guilty J7 38. In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused person did break and enter the dwelling JONATHAN MWANSA in the night and did steal property valued at K2, 395.00 belonging to the same; (ii) that the property is something capable of being stolen; (iii) that the accused dishonestly converted it to his own use other than the special owner or general owner; (iv) that accused had the intention to deprive the owner permanently; and (v) that the accused person had no claim of right. 39. As a result, the accused is entitled to give and or call evidence or say nothing at all and if he elects to remain silent this does not in any way shift the burden from the prosecution to prove the guilt of the accused to the required standard as herein articulated. Analysis of the Law; Facts and Determination 40. In limine, I cautioned myself that– in criminal cases the onus is squarely on the prosecution to prove their case, as per the Supreme Court’s position in Mwewa Murono v. The People (2004) Z. R. 207 (S. C.), where it held inter alia that: … “criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the prosecution… The standard of proof must be beyond all reasonable doubt”. (Emphasis mine) 41. Consequently, if the accused's case is 'reasonably possible', although not probable, then a reasonable doubt exists, and the prosecution cannot be said to have discharged its burden of proof. 42. And if upon considering the evidence adduced there is reasonable doubt on the mind of the court as to the guilt of the accused, the court J8 will return a verdict of NOT GUILTY. Saluwema V The People (1965) ZR 4 (CA). 43. I will be quick to note that – as a trial court it is my duty to resolve all disputed facts, moreover, in Miloslav v. The People (Appeal No. 049/2013), SCZ Judgment No. 26 of, it was stated that: “Where a trial court has omitted to resolve a dispute of fact and there is sufficient evidence for the appellate court to do so, the appellate court may draw its own inferences from the evidence.” 44. I am faced with conflicting facts in this matter, as there is a stark contrast between the prosecution and the defence’s testimony. And I will need to make a proper finding of fact for me to appositely apply the law to the facts in the wake of the two conflicting testimonies. 45. To do so, I ask the question, when should an accused’s defence be raised? Well. Swarbrick, in the Magistrate’s Handbook; 6th Edition (1991), quotes a passage from the case of Ballard v The Queen (1958) Cr. App. Rep. 1, decision by the Privy Council, which say: … “the accused (person) must raise the defence by sufficient evidence fit to go to the jury, in other words, the evidential burden is on him… the (prosecution) is not called upon to anticipate such a defence and destroy it in advance. The accused, by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or by a combination of the two must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But, once he has succeeded in doing this, it is then for the (prosecution) to destroy that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.” J9 46. Opportunely, the Supreme Court in Steven Kalibuku v. The People SCZ Appeal No. 56 of 2015, sympathised with the foregoing excerpt when it held that: … “for an issue to be fit and proper to be left to the jury, such issue must not necessarily have to be introduced through cross- examination of the prosecution witnesses. The issue may arise from the first-time during evidence called on behalf of the accused. While it is accepted that, in some cases, the failure to lay the ground for an issue during cross-examination of the prosecution witnesses must lead to the conclusion that the issue is merely an afterthought, that is not always the case: the evidence when taken as a whole will determine whether the issue has been sufficiently raised”. 47. Furthermore, in the case of Donald Fumbelo v The People SCZ Appeal No.476/2013, the Supreme Court held inter alia that: … “where an accused person does not contradict Prosecution witnesses during cross examination, he is likely to be disbelieved when he brings up his own version of the story for the first time during his defence.” (Emphasis mine) the Supreme Court went further to assert that: … “when the accused person raises his own version for the first time only during his defence, it raises a very strong presumption that his version is an afterthought and therefore less weight is attached to such a version”. (Emphasis mine) 48. I will go out on a limb from the outset and observe that– I find the version of the facts by DW1 to be improbable and I have as a consequence discounted DW1’s version of the facts, seeing as it is not a fit and proper defence, not merely on account of being unclear but the same is most unconventional and plainly incredible when viewed J10 as a whole. Why? Well, the version of the facts by the accused is to say the least an afterthought, as no such explanation was given to the police by DW1, nor did DW1 in cross-examination challenge PW2 for not including the version of the facts relayed to him prior to the commencement of trial by the accused. 49. Consequently, I call to aid the case of Haonga and Other v. The People (1976) ZR 200, where the Supreme Court stated as hereunder: where a witness has been found to be untruthful on a material point, the weight to be attached to the remainder of the evidence is reduced. (Emphasis mine) Nevertheless, when strictly interrogated and properly assessed, the evidence advanced by DW1 cannot stand alone, but requires sophistry to prop it up, as it is to and of itself tenuous at best. 50. Furthermore, the prosecution in teasing out information in the testimony of DW1, revealed that DW1 in his testimony was not forthright and unshaken– when required to corroborate his testimony he instead employed the use of evasive maneuverers. (Nsofu V The People (1973) Z. R. 287 (S. C.)1 51. DW1’s version of the facts is materially amiss. The accused version includes the fact that the matter in question was only brought to the police on 25th March, 2023, which fact is not supported by the testimony given by PW1. The accused also posits that he had been in custody of the bicycle from the 4th March, 2023, which fact is uncorroborated. 1 In this case the Supreme Court held inter alia that: where the evidence of a witness requires to be corroborated it is nonetheless the evidence of the witness on which the conviction Is based; the corroborative evidence serves to satisfy the court that it is safe to rely on that of the witness. J11 52. That being the case, the material evidence which I have adopted as the facts upon which my decision is based is as given by the prosecution witnesses, which version is mainly circumstantial– the underlying facts and testimonies of the witnesses in this case as set forth hereinbefore fundamentally speak to the same. 53. The law with respect to circumstantial evidence has been restated many times by the Supreme Court, and it is that, in order to convict based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt. (Emphasis mine) 54. By way of emphasis, I reiterate the cautionary note that was sounded by the apex court in the case of David Zulu v. The People (1977) ZR 151. that- “It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the facts in issue and from which an inference of the facts in issue may be drawn. It is incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstances evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilty.” 55. Furthermore, the Supreme Court of Zambia sympathized with the case of Sumani v. R (1959) (2) R & N 403., wherein Beadle J. asserted that: “It is not sufficient to say that the explanation, so far as it purports to establish the accused's complete innocence, is manifestly false, and that therefore his entire explanation must J12 be rejected and the case treated as if no explanation at all had been given. The main parts of an explanation might be manifestly false, but there may nevertheless be other parts which might reasonably be true, even after making due allowance for the falsity of the rest of the explanation. In such a case those parts of the explanation which might reasonably be true are entitled to due consideration and should not be rejected along with the rest." 56. In this case, we grappled with the issue of extracting credibility from the testimony of DW1, as he mounted his defence. Alas, in impeaching the prosecution’s testimony the accused has not availed good and proper material upon which the court can judiciously pronounce itself. 57. When PW1 testified that he found the accused in an area sojourning suspiciously; what was interesting was that, strangely he was right in the place where some of the items belonging to PW1 were recovered. 58. To which he had no defence, but in response the accused conveniently spun a tale that, he had dispossessed IDALA of the said property on 4th March, 2023, which intimation was not recorded at the police and neither did he protest its none publication by PW2 during his cross- examination, and suitably did not see the need to call the one person who could assign credence to his version of the facts– IDALA. 59. Having adopted the prosecutions version of the facts– what boggles my mind at this point are the following pertinent inquiries– (i) Could it be an odd coincidence that, the accused was at the right place, at the right time and in possession of all the articles in question? (ii) Or is the version of the account by DW1 as aptly established herein merely fanciful? J13 60. I am persuading that the herein odd coincidences indeed establish something more, and consequently leads to the inevitable corollary that the accused is indeed guilty of the charge in question. 61. In Machipisha Kombe vs. The People Judgment No. 27 of 2009, the Supreme Court held inter alia that: … “Odd coincidences constitute evidence of something more. They represent an additional piece of, evidence which the Court is entitled to take into account. 'They provide a support of the evidence of a suspect witness or an accomplice or any other witness whose evidence requires, corroboration. This is the less technical approach as to what constitutes corroboration”. 62. At this point, it is without dispute that the articles found in the possession of the accused, i.e., bicycle, trowel; measuring tape, etc. are items which can be stolen and were indeed stolen. And that the accused did intend to permanently dispossess the owner of his property and did indeed appropriate the same to himself. 63. This I say on account of the accused conjuring up so much sophistry through his afterthought version of the facts, which he has incessantly maintained to be the facts as they stand, which ultimately lends credence to the fact that the accused was desirous to deprive the owner of the property permanently and without so much as having any legal claim of right. 64. In the premises, I am persuaded that the state has fulfilled the requirement as per Mwewa Murono v. The People (2004) Z. R. 207 (S. C.) Verdict 65. I find that the surrounding circumstances connect the accused to the offence and that there is sufficient corroboration by the prosecution witnesses of the accused having committed the offence, and that the J14 accused has not credibly expostulated with the prosecution’s witnesses. 66. Additionally, the accused did not in any way discredit the prosecution’s evidence in material fashion except to employ sophistry to exculpate and explain himself away. 67. Therefore, in the circumstances before me, I find that the state has proved the case beyond reasonable doubt and that there is no lingering doubt that the offence was committed by none other than the accused himself, thus, I find the accused GUILTY as charged for the offence of burglary and theft, contrary to section 301(a) and 272 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. 68. IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 16TH MAY, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J15