People v Dennis Sinyangwe (3D/39/24) [2024] ZMSUB 4 (11 September 2024)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/39/24 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: REPUBLIC OF ZAMBIA THE JUDICIARY MAGISTRATE CLASS P. O. BOX 420101, MB THE PEOPLE AND DENNIS SINYANGWE Before: Hon. Deeleslie Mondoka For the State: Mr. E. Mwanza, Public Prosecutor, National For the Accused: In person Prosecution Authority. JUDGMENT CASES REFERRED TO: i. ii. iii. iv. v. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.); SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14; LUCKY DUBE, RONNIE MAFULO AND FRANK MOLOSI V. THE PEOPLE CAZ APPEAL No. 48, 49 and 50 of 2017; ATTORNEY GENERAL V. KAKOMA (1975) ZR 21; vi. MWANGO V THE PEOPLE SCZ APPEAL NO. 171 OF 2015; J1 vii. STEVEN KALIBUKU V. THE PEOPLE SCZ APPEAL NO. 56 OF 2015, and viii. DONALD FUMBELO V THE PEOPLE SCZ APPEAL NO.476/2013. STATUTE AND OTHER SOURCES: i. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA. INTRODUCTION [1] The accused stands indicted on a singular count of breaking into a building with intent to commit a felony, in contravention of Sections 303(a) and 272 of the Penal Code, Chapter 87 of the Laws of Zambia, a statutory edifice erected to safeguard the sanctity of private property and punish those who would seek to violate it. [2] The factual matrix of this case reveals that on the 8th day of June, 2024, in the quaint town of Mbala, nestled in the Mbala District of the Northern Province of the Republic of Zambia, the accused, Dennis Sinyangwe, with a calculating intent to steal, did willfully break and enter into the shop of Winford Simuzosha, a humble entrepreneur, and purloined therefrom the sum of K500.00 in cash, the rightful property of the said Winford Simuzosha. [3] On the 18th day of June, 2024, the accused was brought before the bar of justice, arraigned on the aforementioned charge, and upon being duly informed of the nature and cause of the accusation, did enter a plea of NOT GUILTY, thereby setting the stage for a trial that would seek to unravel the tangled threads of truth and falsehood, and ultimately determine the guilt or innocence of the accused. BACKGROUND FACTS PROSECUTION’S CASE [4] In the relentless pursuit of justice, the State unleashed its arsenal of accusatory firepower against the alleged architect of breaking into a J2 building and committing a felony therein, summoning a triumvirate of witnesses to bear witness against the accused. The stage was set, the drama about to unfold, as the prosecution prepared to weave a tapestry of guilt around the defendant. [5] And so, on that fateful day, June 25, 2024, as the trial commenced with all the solemnity of a reckoning, the prosecution called its first witness, the complainant himself, Winford Simuzosha, hereinafter referred to as PW1. With the weight of his testimony hanging in the balance, PW1 stepped into the witness box, his eyes locked on the horizon of truth, his voice steady as he took the oath as hereunder: [6] PW1 deponed that on the aforementioned date, at approximately 21:00 hours, he secured his shop by means of a lock and thereafter retired to a room situated approximately two (2) meters proximal to his shop, whereupon he fell asleep. At around 23:00 hours, PW1 averred that he was roused by the sound of knocking, which, upon his failure to respond, was followed by a period of silence, subsequent to which he heard the door of his shop being opened. [7] PW1 testified that upon exiting the room, he was astonished to discover that the door to his shop had been compromised, and the accused was standing within, holding a plastic bag containing K500.00 and the lock in question. When interrogated, the accused proffered that he desired to purchase cigarettes, but upon further inquiry regarding the tampered lock, he reiterated his initial response, sans elaboration. [8] PW1 summoned his sister, PW2, who upon arrival, witnessed the accused's continued insistence that his sole intention was to procure cigarettes. Due to the accused's obstinacy, PW1 opted to notify the Community Crime Prevention Unit (CCPU), who subsequently apprehended the accused. J3 [9] The accused was then taken into custody and presented before the village headman, where he was detained until his transfer to the police station. The exhibits, comprising a Solix silver lock and K500.00, denominated in two hundred-kwacha notes and six fifty-kwacha notes, were collectively marked as "ID1". PW1 positively identified the accused in the dock. [10] During cross-examination, PW1 reaffirmed the accused's presence within the shop on the pertinent date, in possession of the lock and monies in question. The accused alleged that PW1 had subjected him to physical harm. No further questions were posed during re- examination. [11] On the 2nd day of August, 2024, the State summoned its second witness, Grace Namuzosha, to corroborate the testimony of PW1, thereby fortifying the prosecution's case. Her testimony, akin to that of PW1, yet with distinct nuances, unfolded as follows: [12] PW2 recounted that at approximately 23:00 hours, she was beckoned by PW1, and upon arrival, discovered the accused ensconced within PW1's shop, while PW1 stood outside. The accused, with lock and monies in hand, persisted in his claim of seeking cigarettes, an assertion that seemed as implausible as a bird attempting to fly with leaden wings. [13] PW2 observed that the accused, like a cornered beast, attempted to flee the scene, but was thwarted by the timely arrival of the Community Crime Prevention Unit (CCPU), who apprehended the accused and consigned him to the headman's premises, a temporary enclosure akin to a bird in a gilded cage. [14] During cross-examination, PW2 reaffirmed the accused's presence within the shop, a fact as irrefutable as the existence of the sun in the sky. The accused's counsel, in a futile attempt to obfuscate the truth, J4 posed questions as extraneous as a fish attempting to survive on land. No further questions were advanced in redirect examination, leaving the accused's fate as precarious as a leaf on a windswept day. [15] The state summoned its last witness, PW3, which witness relied squarely on the report by the arresting officer—a document of probative value, recounted that on June 10, 2024, at approximately 08:00 hours, Detective Nakazwe reported for duty and was handed a docket pertaining to breaking into a building and committing a felony, wherein one Dennis Sinyangwe, the accused, allegedly broke into the shop of Winford Simuzosha, PW1, and purloined K500.00. [16] The report—a testament to the accused’s culpability, revealed that entry was gained through the door, subsequent to the damage of a silver Solix lock. The incident, a brazen act of thievery, occurred at approximately 23:00 hours in Musuwilo Village. Upon interrogation, the accused proffered no satisfactory explanation. [17] PW3, when queried regarding the report and exhibits “ID1”, submitted that he sought to enter the report and accompanying evidence, comprising the monies and lock, into evidence. The court, in its discretion, marked the monies and lock collectively as “P1” and the report as “P2”, to which the accused demurred not. [18] Thus, the prosecution's case, replete with evidence of the accused’s malfeasance, concluded. The court, in accordance with Section 207 of the Criminal Code, Chapter 88 of the Laws of Zambia, found the accused with a prima facie case to answer and placed him on his defense, thereby affording him the opportunity to rebut the evidence adduced against him. J5 THE DEFENCE’S CASE [19] In Mbala’s hallowed halls of justice, where the scales of fate are weighed, the defendant, as if summoned by the clarion call of destiny, elected to present unsworn evidence, a choice akin to the perilous path of the uncharted realm. Thus, the same, now transformed by the crucible of circumstance into DW1, took up the mantle of testimony, to weave a tale of truth or deception, as the court, listened with rapt attention, poised to discern the veracity of the words spoken, as the fate of the accused hung in the balance, like the sword of Damocles, suspended by the slender thread of justice. [20] On August 30, 2024, as the defense phase commenced, DW1's testimony meandered like a winding river, revealing that he had traversed to the Mbala town centre, bearing a 40-liter container of alcohol, a cargo worth K60.00. [21] Subsequent to the completion of his delivery, DW1 proceeded to the village, whereupon he sought and obtained refuge at the domicile of his grandparents, and thereafter engaged in some alcohol intake with his paternal uncles, namely Chitala and Leonard, which assembly persisted until the evening hours, at which point he was summoned by his father, thereby terminating the aforementioned convivial gathering. [22] DW1's testimony continued, unfolding like a blooming flower, as he recounted his friend Laban's request to procure cigarettes, utilizing the change left at PW1's shop. [23] The evening wore on, DW1 approached PW1's shop, knocking persistently, like a woodpecker on a tree trunk, and, observing an open door, inferred PW1's proximity. However, PW1's father, like a protective predator, confronted him, grasping his chest and administering a slap. J6 [24] DW1 cried out for assistance, like a distressed call in the wild, PW1 and PW2 emerged, and well-wishers intervened, inquiring about the commotion, a testament to the community's instinct to protect. [25] The following day, DW1's journey continued, as he was transported to the police station, where PW1 alleged discovering him with a lock and money, a claim DW1 vehemently denied. [26] With the court's offer to summon witnesses, DW1 elected to conclude his case, like a migratory bird concluding its journey, leaving the fate of his defense to the whims of the judicial winds. FACTS IN DISPUTE [27] Upon careful consideration of the entirety of the evidence presented, the following material facts remain in contention: (i) Whether the defendant, DW1, did wilfully and with felonious intent, break and enter into the shop of PW1, thereby committing a felony within said premises; (ii) Whether DW1 was, in fact, accosted and physically struck by PW1's father, as alleged. [28] These disputed facts shall form the basis of further deliberation and analysis, in order to ascertain the truth and render a just verdict. THE LAW ESTABLISHING THE CHARGE IN CASU [29] Reference is made to the Penal Code Act, Chapter 87 of the Laws of Zambia, specifically Section 303 thereof, which stipulates and provides in part as follows: Any person who- (a) breaks and enters into any building other than a dwelling house and commits a felony in it; And section 272 of the same Act enacts as hereunder: 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 J7 other punishment is provided, is liable to imprisonment for five years. (Emphasis supplied) INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [30] The prosecution endeavours to prove its case, it must convincingly establish each and every essential element of the offense, a formidable task akin to scaling a towering mountain. The five pillars of proof, upon which the prosecution's case must stand, are: (i) That the accused, with deliberate intent, breached the security of the locking system, thereby gaining unauthorized access; (ii) That the accused, with calculated purpose, entered the hallowed precincts of PW1's shop;(iii) That the accused, with knowledge and intent, trespassed upon a building not his own, a strangers' domain; (iv) That the accused, with a heart bent on thievery, harboured the intent to steal, a malicious purpose; and (v) And, finally, that the accused, with hands soiled by deceit, did steal, thereby consummating the felony. [31] Only upon successfully proving each of these indispensable elements can the prosecution hope to secure a verdict of guilt, a daunting challenge indeed. ANALYSIS OF THE LAW; FACTS AND DETERMINATION [32] Pursuant to the well-established jurisprudential framework, it is imperative to acknowledge at the outset that the burden of proof in criminal proceedings unequivocally rests upon the prosecution, as unequivocally enunciated by the apex court, to wit, the Supreme Court, which has authoritatively decreed that the prosecution bears the onus of establishing the guilt of the accused beyond a reasonable doubt, thereby adhering to the sacrosanct principle of 'actus probandi incumbit actori' or 'the burden of proof lies on the party who asserts'." J8 [33] in re MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.), where it held inter alia that: … “in 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) [34] Thus, if the accused's narrative presents a plausible scenario, albeit not the most likely, a reasonable doubt emerges, and the prosecution's burden of proof remains unfulfilled, for a scintilla of uncertainty suffices to undermine the requisite degree of certainty. [35] Consequently, whereupon consideration of the evidence presented, a reasonable doubt persists in the mind of the court regarding the accused's culpability, the court shall, in accordance with the principles of justice and the presumption of innocence, render a verdict of NOT GUILTY, for it is axiomatic that doubt begets acquittal. SALUWEMA V THE PEOPLE (1965) ZR 4 (CA). [36] Noteworthy is the fact that the election by DW1 to tender unsworn evidence is subject to the venerable principle enunciated by Conroy, which has been consistently adhered to by our courts, to the effect that an accused who volunteers unsworn evidence does so with the concomitant waiver of the right to be sworn, thereby rendering such evidence susceptible to scrutiny and assessment of its probative value by the court, in accordance with established jurisprudential norms. [37] Conroy, C. J, in re BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14, referred to unsworn testimony in the following terms: … “The court may attach what weight it chooses to the contents of such statement. The balance of opinion seems to be that an unsworn statement is evidence in the case, but is of less weight J9 than sworn testimony, which can be tested by cross- examination”. (Emphasis mine) [38] In this tangled web of truth and deception, I find myself ensnared in a maelstrom of conflicting narratives, as the prosecution and defense present starkly divergent accounts of the events in question. Like two ships passing in the night, PW1 and PW2 chart a course of certainty, alleging with conviction that DW1 forcibly breached the sanctum of the shop, while DW1, with equal fervour, propounds a counter-narrative of innocence, positing that the door stood ajar, an open invitation to enter, and that PW1's father, fuelled by suspicion and wrath, unleashed a vicious assault upon his person. The stage is set, the drama unfolds, and I, the arbiter of justice, must navigate this treacherous landscape of conflicting testimonies, to unearth the truth, and render a verdict. [39] It is the sacrosanct obligation and inherent duty of the trial court, as the ultimate arbiter of fact, to meticulously scrutinize and evaluate the conflicting evidence presented, and thereafter, to render definitive findings of fact, predicated upon a thorough analysis of the probative value and credibility of the testimony and evidence adduced, thereby resolving the factual disputes and controversies presented, and laying the foundation for a just and equitable verdict. See LUCKY DUBE, RONNIE MAFULO AND FRANK MOLOSI V. THE PEOPLE CAZ APPEAL No. 48, 49 and 50 of 2017. Which position the Supreme court earlier espoused in re ATTORNEY GENERAL V. KAKOMA (1975) ZR 21. [40] The mantle of justice rests upon my shoulders, and with unwavering resolve, I assert the sacrosanct authority vested in me as the trial court, to scrutinize the evidence presented and render findings of fact with unyielding discernment. For it is I, the arbiter of truth, who must navigate the labyrinthine complexities of testimony and evidence, ever vigilant to distinguish the wheat of probative value from the chaff of extraneous irrelevance. J10 [41] And so, I declare with unshakeable conviction, that I shall not be swayed by the siren's song of extraneous evidence, nor shall I be bound by an obligation to lend credence to testimony that wanders, like a lost traveller, far from the beaten path of relevance. My duty, my honour, my unwavering commitment, is to seek justice, unencumbered by the weight of unnecessary distraction. [42] Further, I lend countenance to the notion that, “a person accused of an offence and on trial begins to build his or her defence right from the time of apprehension and from the first prosecution witness by asking questions in cross examination. Where an issue or defence is only raised when the accused is on the stand, the court cannot be faulted for treating it as an afterthought and an explanation which cannot reasonably be true. In this case, DW1 had the opportunity regarding his defence from his apprehension or at the earliest time during trial1..." [43] Thusly, a root and branch reading of the facts and evidence herein advanced by DW1 reviews, a fascinating display of forensic futility. DW1, introduced a curious assortment of extraneous material, akin to a migratory bird straying far from its natural habitat. Upon closer inspection, this disparate collection of facts, much like a lone species in an inhospitable environment, is found to be devoid of sustenance, lacking the essential nutrients of evidential value. In this barren landscape of relevance, the material advanced by DW1 fails to germinate, unable to sprout the tender shoots of reasonable doubt or nurture the blossoming of alternative inferences, ultimately withering under the harsh scrutiny of the court, like a fleeting phenomenon, lost in the vast expanse of jurisprudence. 1 Mwango v The People SCZ Appeal No. 171 of 2015 J11 [44] For an issue to be deemed suitable for submission to the court’s consideration, it is not a requisite that such issue be initially broached through cross-examination of the prosecution's witnesses. Rather, the issue may emerge for the first time during the presentation of evidence on behalf of the accused. While it is acknowledged that, in certain circumstances, the failure to lay the groundwork for an issue during cross-examination of the prosecution's witnesses may lead to the inference that the issue is a belated afterthought, such is not always the case. The determinative factor shall be the evidence in its entirety, which shall be scrutinized to ascertain whether the issue has been sufficiently raised and developed, thereby warranting submission to the court for their deliberation and consideration. See the case of STEVEN KALIBUKU V. THE PEOPLE SCZ APPEAL NO. 56 OF 2015. [45] In circumstances where the accused elects not to contest or contradict the testimony of prosecution witnesses during cross-examination, thereby failing to impeach or challenge their veracity, it is likely that their own subsequent version of events, presented for the first time during their defence, shall be viewed with scepticism and disbelief, as the accused's silence or acquiescence during cross-examination may be perceived as an implicit acceptance of the prosecution's narrative, thereby undermining the credibility and persuasiveness of their own belated account. See the legal case of DONALD FUMBELO V THE PEOPLE SCZ APPEAL NO.476/2013. [46] A meticulous examination of the facts and evidence reveals a glaring omission, a silence so deafening it echoes through the halls of justice. DW1, during cross-examination, failed to disclose a crucial detail, a fact that would have altered the trajectory of this case: his own inebriation on the fateful night in question. Instead, he chose to conceal this vital information, only to later attempt to inject a contradictory narrative, a J12 desperate attempt to reshape the truth. But alas, this belated revelation comes too late, for it fails to impeach the testimonies of PW1 and PW2, those stalwart sentinels of truth. And yet, even before we consider the damning evidence contained within the police report, tendered by PW3, it becomes clear that DW1's credibility lies in tatters, his version of events a fragile house of cards, vulnerable to the slightest whisper of doubt. [47] Thusly, I am inexorably drawn to the inescapable conclusion that the accused stands guilty of the offense in question. This finding is not reached lightly, but rather, it is the inevitable result of a solemn and exhaustive appraisal of the entirety of the evidence. The facts, when considered in their totality, weave a tapestry of guilt so intricate, so compelling, that it leaves no doubt as to the accused's culpability. Specifically, the evidence tendered by PW1 through to PW3 establishes that: (i) The accused, with calculated deliberation, compromised the security of the locking system, thereby gaining unauthorized access; (ii) The accused, with purposeful intent, breached the sanctum of PW1's shop; (iii) The accused, with knowledge and intent, trespassed upon a foreign domain, a stranger's property; (iv) The accused, with a heart bent on malfeasance, harboured the intent to steal, a malicious purpose; and (v) Ultimately, the accused, with hands sullied by deceit, consummated the felony, leaving an indelible mark of guilt. Thus, the evidence, like a mighty river, flows inexorably to a single destination: the guilt of the accused. VERDICT [48] After conducting a thorough and exhaustive examination of the evidence presented, I hereby declare, with utmost confidence and conviction, that: J13 i. The prosecution has constructed an unassailable and formidable case against the defence, replete with compelling evidence and testimonies; ii. Notwithstanding the defence's vigorous and determined efforts to counter the prosecution's arguments, he’s contentions has ultimately proven to be unsubstantiated and lacking in merit; iii. The defence has failed to effectively challenge or discredit the prosecution's witnesses and evidence, thereby rendering their position untenable and devoid of credibility." [49] I therefore find the accused person GUILTY as charged for the offence of breaking into a building and committing a felony therein contrary to section 303(a) and 272 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [50] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 11th SEPTEMBER, 2024 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J14