People v Evans Simwinga (3D/14/2024) [2024] ZMSUB 12 (19 June 2024)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/14/2024 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: REPUBLI C OF ZAMBIA TH E JUD ICIA RY MAGISTRATE CLASS 1' P. O . BOX 420101, MBA :.. THE PEOPLE AND EVANS SIMWINGA Before: Hon’ble 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. MOONGA V. THE PEOPLE (1969) Z. R. 63; R V. MUCHUMA 4 N. R. L. R. 64; CHISHA V. THE PEOPLE (1968) ZR 26; SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14; LUBENDAE v THE PEOPLE (1983) Z. R. 54 (S. C.); vii. OHINGA LUMAMBA V. THE PEOPLE APPEAL NO. 247 OF 2014; viii. ix. x. xi. xii. BROWNE V DUNN (1893) 6 R 67 AT 70, 76; R v JAE [2021] QCA 287; KAMBARAGE MPUNDU KAUNDA V. THE PEOPLE (1990-1992) ZR 215; PARTFORD MWALE V THE PEOPLE CAZ APPEAL NO. 8 OF 2016; YOKONIYA MWALE V. THE PEOPLE (APPEAL NO. 205/2014); xiii. GUARDIC KAMEYA KAVWANA V. THE PEOPLE (APPEAL NO. 84/2015), & J1 of 13 xiv. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.). STATUTE AND OTHER SOURCES: i. ii. iii. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA; PHIPSON ON EVIDENCE 20TH ED (2022), & CROSS ON EVIDENCE 6TH EDITION (1985). INTRODUCTION [1] The accused EVANS SIMWINGA stands charged with one Count of assault occasioning actual bodily harm, contrary to section 248 of the Penal Code Act, Chapter 87 of the Laws of Zambia [hereinafter referred to as The Penal Code]. [2] In brief– the facts in this case are that, the accused on 2nd May, 2024, at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did assault JOHN SIULAPWA thereby occasioning him actual bodily harm. [3] The matter debuted on 8th May, 2023– when the accused person stood trial, and was arraigned on the charge succinctly delineated on the indictment; to which the accused pled NOT GUILTY. BACKGROUND FACTS PROSECUTION’S CASE [4] Permit me to toss out as an ice breaker that––the evidence attending to this case is by and large––the whole shebang of the facts gleaned at trial. [5] On 27th May, 2024, the prosecution after a few prefatory remarks summoned as its first witness, PW1, a certain JOHN SIULAPWA, a quadragenarian, who gave his testimony on oath as hereunder. [6] On the 2nd day of May, 2024, PW1 made short shrift of his evidence; testifying that––at around 18.00hrs, PW1 placed a pot of water on J2 of 13 burning wood to prepare some ‘nshima’. This was at his work area where their work is principally that of crushing stones, quarry and other related building issues. It was PW1’s testimony that the accused rolled up and without some much of a by your leave; kicked the pot with the hot water, which water consequently spilt on PW1’s left eye and left leg (the same burnt PW1 on his left eye and left leg). It was PW1’s testimony that there were three (3) persons sitting near the fire. [7] The accused was then apprehended and pinioned. With that, PW1’s face was tumescent and left leg burnt. The accused was thusly, collared and consigned to Mbala police station where he was detained. PW1 then made a dock identification of the accused, as the one who assaulted him. During cross-examination the accused simply made inquiry into whether or not the two (2) had differed. Nothing was advanced in re-examination. [8] To ally the testimony of PW1 the state summoned as its second witness PW2, a tricenarian by the name of MOSES SIMUTOWE, who tacked on the testimony of PW1 and supplemented as hereunder. [9] On the date in question at around 18:00hrs the accused came looking rather vexed––PW1 then intimated to PW2 that the same should move, and no sooner had PW2 moved than the accused kicked the pot of hot water in the direction of PW1, consequently, spilling on and burning PW1 on the face and left leg. [10] And with spirited instinct, PW1 moved apace to a stream of water for to tend to his burns, and in the throes of this unfortunate eventuality, PW1 bellowed that the accused should not be allowed to run away. Incidentally, PW2 espied the skin on PW1’s face pilling off. [11] Further, it was PW2’s testimony that the accused observed that he would beat all of them. After aiding PW1––PW2 apprehended the accused with a certain JUMBE. The accused had his hands pinioned in J3 of 13 the wake of the assault. DW1 then poured scorn on PW2 with his ilk over their actions and the accused was taken to the road side. PW2 and others then called the person in charge at their work place. [12] During cross-examination the accused contended that he had received a K10.00 from PW2, which money was used to procure some alcohol for PW2. Alas, the contention was advanced with nary an attempt at establishing a nexus between the K10.00; alcohol and how the same braced DW1’s testimony. Nothing of note followed thereafter. Nothing was advanced in re-direct. [13] On 5th June, 2024, the prosecution concluded with its line of witnesses with the testimony of PW3, a detective constable by the name of JULIUS MPHANDE, who related as hereunder. [14] On the morning of 3rd May, 2024, when PW3 reported for work, the same was allocated a docket of assault occasioning actual bodily harm. It was PW3’s testimony that the accused was already in police custody at the time. PW3 upon perusal of the docket, the same came to learn that JOHN SIULAPWA, male aged 48yrs was assaulted by one EVANS SIMWINGA with hot water on his left eye and left leg. The victim herein sustained burns on the parts herein captured. [15] Acting on the same, PW3 discovered that there was a medical report to that effect, which report he kept in police custody, which report was marked and produced herein as “P1”. the incidence occurred on the 2nd day of May, 2024, around 18:00hrs. [16] Thusly, PW3 took the accused to the Criminal Investigations Department (CID), where the same was interviewed and warned and cautioned––the accused remarked that he accidentally stepped on the wood and thus occasioning the burns on PW1. [17] It was PW3’s testimony that the accused when warned and cautioned gave a free and voluntary riposte denying the charge. PW3 then made J4 of 13 up his mind to charge the accused with the offence of assault occasioning actual bodily harm contrary to section 248 of the Penal Code Act Chapter 87 of the Laws of Zambia. [18] Curiously, nothing was advanced in both cross-examination and re- examination. [19] At the close of the prosecution’s case, the court then found the accused person with a prima facie case to answer and put the same on his defence pursuant to section 207 of the Criminal Code, Chapter 88 of the Laws of Zambia. THE DEFENCE’S CASE [20] The accused person elected to give unsworn testimony. And when the matter came up on the 11th day of June, 2024, the accused took up the cudgels and testified with a sombre mien hereunder as DW1. [21] On 2nd May, 2024, DW1 was at his work place at around 07:00hrs and knocked off at around 17:00hrs. Seeing as the area where they work does not have steady network DW1 and his cronies set out in search of network and some food. It was his testimony that they only regained at a tenebrous hour sometime between 20:00 and 21:00hrs. [22] The men who did not go with the group were already fast asleep. Seeing as there was no power, DW1 decided to prepare some nshima. DW1 decided to get up and collect some relish, and because it was too dark DW1 misjudged and stepped on a wood, which firewood cause the hot water to spill on PW1, and almost immediately heard PW1 scream in pain that the accused had burnt the same. DW1 quickly took placatory steps and said he was sorry, but alas PW1 did not have it. At the time they were only the three (3) of them outside. PW2 upon hearing what happened quickly came at the accused. J5 of 13 [23] In essence, the mainstay of the testimony DW1 was canvassing at paragraph 22 herein was that––the whole ordeal was birthed in inadvertency and was crisply accidental. [24] Notwithstanding, PW2 a relative of PW1 then tackled and wrestled DW1 to the ground and had DW1 injured on the head in the process. They then had DW1’s hands tied. DW1 besought the same but to no avail. The boss was then called and they dragged DW1 to the road side and the boss arrived at around 01:00hrs in the wee hours. [25] Subsequently, DW1 was collared and taken to Mbala police station. And that marked the close of the defence’s case. Nothing was advanced in cross-examination and re-examination. DW1 was the only witness, as no other witnesses were summoned to brace the testimony DW1 and the conclusion of his evidence marked the end of the defence’s case. FACTS IN DISPUTE [26] This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: (i) that DW1 did spill hot water on PW1 on the 2nd day of May, 2024––accidentally on purpose; (ii) that the assault was occasioned on PW1 around 18:00hrs. FACTS NOT IN DISPUTE [27] I find the following not to be in dispute: that injury on PW1’sperson was occasioned on the 2nd day of May, 2024. THE LAW ESTABLISHING THE CHARGE IN CASU [28] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 248 constitute the offence of assault occasioning actual bodily harm, the section so far as is material provides that: … “Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.” J6 of 13 INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [29] In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused person unlawfully occasion harm on PW1 when he spilt hot was on the same; (ii) that the accused did not do so in self-defence; (iii) that the accused did not seek consent before he occasioned harm on PW1. [30] As a result, the accused person is entitled to give and or call evidence or say nothing at all and if they elect 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 [31] From the outset, I cautioned myself that– the accused plea of not guilty disputes all the ingredients of the offence charged; this was the position in re MOONGA v. THE PEOPLE (1969) Z. R. 63. Further, a plea of not guilty puts the prosecution under the necessity of proving all the elements of the offence. R v. MUCHUMA 4 N. R. L. R. 64. [32] Consequently, there is no obligation on the part of the accused to prove his innocence or indeed to give a satisfactory explanation, this was the position in re CHISHA v. THE PEOPLE (1968) ZR 26. It is worth noting that, this position is so, even if the explanation on the face of it seems ridiculous. [33] Consequently, if the accused person’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. [34] 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 will return a verdict of NOT GUILTY. SALUWEMA V THE PEOPLE (1965) ZR 4 (CA). J7 of 13 [35] The hereinafter is worth noting about DW1 electing to give unsworn evidence that, our courts have always followed the words by Conroy, C. J, in re BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14 in this case he 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 than sworn testimony, which can be tested by cross- examination”. (Emphasis mine) WAS THE ASSAULT OCCASIONED ON PW1 ACCIDENTAL? [36] In casu, DW1 in an endeavour to come up smelling of roses––spun a tale contending that the harm caused on PW1 was occasioned by him accidentally as DW1 was merely taking a crack at whipping up a meal at what was a crepuscular hour when he inadvertently stepped on firewood, thus causing the pot to empty its contents on PW1. [37] It is trite law that, in any offence for which a particular mental element is required1, it is a defence that although the accused did the act which would be criminal if done with intent, they were done by accident. Section 9(1) of the Penal Code Act, Chapter 87 of the laws of Zambia provides inter alia as follows: …. “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident”. (emphasis supplied) [38] In re LUBENDAE v THE PEOPLE (1983) Z. R. 54 (S. C.), the Supreme Court did consider the meaning of the word ‘accident’, in the context of section 9(1) of the Penal Code, and held as follows: 1 OHINGA LUMAMBA V. THE PEOPLE APPEAL NO. 247 OF 2014 J8 of 13 … “An event occurs by accident if it is a consequence which is in fact unintended, unforeseen or such that person of ordinary prudence would not have taken precautions to prevent its occurrence ….”. [39] Alas, DW1 did not challenge the testimony of PW1, PW2 and PW3, when they testified that DW1 at around 18:00hrs, did occasion actual bodily harm with hot water on PW1––accidentally on purpose. [40] The general rule in criminal cases, as stated in PHIPSON ON EVIDENCE 20TH ED (2022), is that, a party is required to challenge by cross- examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (emphasis mine) [41] Further, the learned authors of CROSS ON EVIDENCE 6TH EDITION (1985) state that: “the object of cross-examination is two-fold, first, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross- examination is conducted, and secondly to cast doubt upon the accuracy of the evidence-in-chief given against such party”. (Emphasis supplied) [42] Thus, in any trial – civil or criminal – if a party intends to contradict the evidence of a witness, i.e., DW1 in this case – either by way of submission to the magistrate, or by other evidence – then the party is required to put the substance of the contradictory evidence to the witness during cross-examination, so that the witness might comment on it. BROWNE V DUNN (1893) 6 R 67 AT 70, 76. [43] Further, McMurdo JA put it in R v JAE [2021] QCA 287 as follows: “The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and J9 of 13 which are intended to be asserted in due course”. (emphasis mine) [44] DW1 was not legally aided––but managed to cross-examine PW1 all the same. Alas, DW1 left the evidence of PW1 to PW3 materially unchallenged. Why? Well, I can only surmise that this was because the prosecution witnesses told the truth and DW1 could not challenge them. [45] DW1, operating on a wing and a prayer, gave unsworn testimony; made arguments build wholly ex silentio that––the injury occasioned on PW1 was accidental, hoping against hope that the same would go off without a hitch. DW1 was to put it loosely, gripped with a curious case of amnesia, when in placing the claim for his innocence, he sloppily iterated that––the assault in question was accidental, as it happened in the cover of dark between 20:00 to 21:00hrs. This he said notwithstanding the unchallenged testimony by the prosecution’s witness that PW1 was intentionally injured by DW1 at around 18:00hrs. [46] Thus– I find this explanation and or evidence by DW1 to be exiguous and inept to rouse reasonable doubt in the mind of this honourable court. THE TESTIMONY OF A FRIEND AND RELATIVE [47] And touching the testimony of PW2– I am alive to the fact that as a trial court I need to tread softly when considering the testimony of a friend or relative– as relatives or friends of a victim have a documented tendency to skew and or give sidelong versions of the facts, as they may possibly have an interest of their own to serve and their evidence should thus be treated with utmost caution and in the same way as evidence of suspect witnesses. [48] Following from the same, the supreme court in KAMBARAGE MPUNDU KAUNDA V. THE PEOPLE (1990-1992) ZR 215 guided inter alia that: J10 of 13 … “as relatives and friends of the deceased may be witnesses with an interest to serve, it was incumbent upon a court considering evidence from such witnesses to warn itself against the dangers of false implication, and that the court must go further and exclude such danger.” (Emphasis mine) [49] And the Court of Appeal in re PARTFORD MWALE V THE PEOPLE CAZ APPEAL NO. 8 OF 2016, echoed the sentiment: … “A conviction will be safe if it is based on the uncorroborated evidence of witnesses who are friends and relatives of the deceased, or the victim, provided that on the evidence before it, those witnesses could not be said to have a bias or motive to falsely implicate the accused, or any other interest of their own to serve. What was key was for the court to satisfy itself that there was no danger for false implication”. (Emphasis mine) [50] In giving expression to the forgoing cases, I cannot but assert that––I perceived no danger and or potential for false implication in the testimony of PW2 to the detriment of DW1. Having espoused as hereinbefore––the testimony of DW1 is in my reverential view not up to snuff, as I am persuaded that; the accused’s version of the facts is fatally amiss– and as a consequence I roundly adopt the prosecution’s version of the facts. As I cannot decidedly privilege the testimony of DW1 without running the risk of misstating– seeing as the testimony of the said DW1 has not received apposite corroboration. [51] It is an inviolable fact that the defence witness has hitherto not dislodge the case through his testimony nor has he advanced material potent enough to rouse reasonable doubt in the mind of this court. Therefore, I cannot decisively rule out that DW1 was not merely feeding me a line about the events of the 2nd day of May, 2024. [52] In any case, in re YOKONIYA MWALE V. THE PEOPLE (APPEAL NO. 205/2014) the apex court stated that: J11 of 13 … “We are of the firm view that insistence on the position that the evidence of every friend or relative of the deceased or the victim must be corroborated, is to take the principle in the case authorities on this point out of context.” (Emphasis mine) [53] In the later appeals, case in point, in re of GUARDIC KAMEYA KAVWANA V. THE PEOPLE (APPEAL NO. 84/2015), it was observed that: ...” there is no law which precludes a blood relation of the deceased from testifying for the prosecution. Evidence of a blood relation can be accepted if cogent enough to rule out any element of falsehood or bias.” (Emphasis mine) [54] On balance––when weighed against the testimony of PW1 through to PW3––I find the disparate version of the facts as told by DW1 to be a meticulously curated ruse; even though approximating the truth, the same requires much casuistry to prop it up. [55] And as a poor faltering human creature subject to my own subjective notion of right and wrong, which invariably “is bound to be the only judgement throne for deciding the matter in the last analysis”. I find solace in the fact that––in criminal law: when one is seized of a matter which is to itself criminal, i.e., the charge in question against DW1––the ordinance is fixed within narrow legal parameters that allow for little or no discretionary room for one to squarely rely on their subjectivity––a function of which I believe is to foist on the adjudicator the solemn need for objectivity and clear-sightedness. [56] Thusly, under my watchful eye, I was able to delouse out the fact that DW1 was trying to put me on when he testified that he inadvertently occasioned the assault on PW1, which testimony was an attempt to turn the corner. Further, with the benefits of well-established tenets of evidence and legal canon, this court is alert enough to discern when parties are frolicking on the fictional landscape through their versions of the facts. J12 of 13 [57] Upon teasing out the evidence herein brought to bear by the prosecution and the defence through the labyrinth of trial, which trial unveiled a tapestry of wit and drama as was borne out via the testimonies of PW1 through to PW3, and that of the defendant, DW1. I can roundly assert that––the prosecution has painstakingly built an irrefragable case against the defendant (DW1), as the same has not credibly expostulated with the prosecution’s witnesses and or evidence. VERDICT [58] In conclusion, the state has satiated the standard of proof in re MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.) and that there is no lingering doubt that, the offence was committed by none other than the accused person. [59] I find the accused person GUILTY as charged for the offence of assault occasioning actual bodily harm, contrary to section 248 of the Penal Code Act, Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [60] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 19TH JUNE, 2024 _____________________________________________ DEELESLIE MONDOKA HON’BLE MAGISTRATE J13 of 13