People v Jonathan Sikazwe (3D/14/23) [2023] ZMSUB 4 (11 July 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/14/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: l , L; : 1r:uc O F ZAMBIA ·1 I IE JUDICIARY hftr~IJL 2123 ~ /\GISTRATE CLASS II P. O. BOX 420101, MBA A THE PEOPLE AND JONATHAN SIKAZWE Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National For the Accused: In person Prosecution Authority. TRIAL-WITHIN-A-TRIAL RULING CASES REFERRED TO: i. ii. iii. KANGACHEPE MABO ZONDO V THE QUEEN (1963-1994) Z AND N. R. L. R 97 (CA); HAMFUTI VTHE PEOPLE (1972) Z. R 240; KASUBA V THE PEOPLE (1975) Z. R 274; iv. MWELWA V THE PEOPLE (1972) Z. R 29 (HC); v. vi. TAPISHA V THE PEOPLE (1973) Z. R 222 (CA); NYAMBE V THE PEOPLE (1973) Z. R 228 (CA); vii. WAKILABA V THE PEOPLE (1979) Z. R 74; J1 viii. ix. x. EDWARD KUNDA V THE PEOPLE (1971) Z. R (99); ISLAND NKHUWA V THE PEOPLE (1971) ZR 134 (HC); CHIGOWE V THE PEOPLE (1977) Z. R 21 (SC); xi. MWIYA AND IKWETI V THE PEOPLE (1968) Z. R 53 (CA); xii. xiii. xiv. xv. CHILESHE V THE PEOPLE (1972) Z. R 48 (HC); THE PEOPLE V CHANDA (1972) Z. R 116 (HC); ZEKA CHINYAMA AND OTHERS V THE PEOPLE (1977) Z. R 426 (SC); CHILUFYA V THE PEOPLE (1975) Z. R 138; xvi. ABEDINEGAL KAPESH AND BEST KANYAKULA V THE PEOPLE SCZ SELECTED JUDGMENT NO. 35 OF 2017, and xvii. GRAVE V. MILLS 7 H& N 917. STATUTE: i. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA. INTRODUCTION [1] The accused JONATHAN SIKAZWE stands charged with one Count of stock theft, contrary to section 275(1) of the Penal Code Chapter 87 of the Laws of Zambia. [2] In brief– the accused on 30th March, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, jointly and while acting together with others did steal 1 goat valued at K800.00, the property of GOODWELL SIKOZI. [3] On 3rd April, 2023, the accused person was made to stand trial, and was arraigned on the charge in question, to which the accused pled NOT GUILTY. [4] When the matter come up for continuation of trial on 7th June, 2023, the accused disavowed having voluntarily confessed to rustling a white and black goat from Chulungoma on 30th March, 2023. J2 BACKGROUND FACTS PROSECUTION’S CASE [5] On 26th June, 2023, the prosecution during a trial-within-a-trial summoned two (2) witnesses to make its case. [6] The first witness was a vicenarian by the name of INNOCENT NKOLE, a detective constable at Mbala Police Post, appositely styled as PW1, who gave his testimony on oath as hereunder. [7] PW1 reported for work at 07:40hrs– went to the CID’s office, on the day constable Mphande, PW1’s compatriot was also on duty; suitably seized with responsibility to investigate into the knocking off of a goat by the accused. [8] PW1 indicated that on the material date– there was an ephemeral transference of the accused person from his holding cell to the CID’s office wherein was a table; bench– which room was open to the public, with doors and windows ranked open, so much so that all and sundry would perceive exactly what was obtaining in the room in question. [9] It was PW1’s testimony that, the accused was unhindered and had the latitude to behave, think and act at will– in other words, the accused had the carte blanche to maintain uncoerced that– he had rustled the goat or not, as there was nothing in the room or about the officers’ conduct to impel the accused to exercise the need to disclosed that he was in on the crime. [10] Further, PW1 intimated that the accused did willingly confess during the course of the interview that he had appropriated the goat in question. Which testimony he divulged freely and voluntarily via a confession statement in bemba, during the transient interview which lasted a little under sixty minutes. J3 [11] PW1 indicated that a written statement was taken by the police in bemba, a language the accused understands well, wherein he confessed to the crime of stock theft. [12] There was nothing raised in both cross and re-examination. [13] On the self-same day the prosecution braced PW1’s testimony with that of its second witness, PW2, a certain JULIUS MPHANDE, a police officer at Mbala Police post. [14] PW2 gave his testimony much in the manner of PW1, except to augment as hereunder. [15] PW2 maintained that– he explained to the accused his rights before taking the testimony and that if he was desirous for someone else to sit in with him to put him at his ease that, that could be facilitated. [16] PW2 indicated that the accused confessed to rustling a white and black goat– and that he sold the same to a person foreign to even the accused, at a consideration of K350.00. [17] It was PW2’s position that, the accused signed the statement in question by inputting his thumbprint on the statement, and that PW2’s colleague, PW1 was also a cosignatory to the statement. [18] Thereafter, the accused lead PW2 and company to the scene of the crime in Chulungoma, where the same demonstrated how he rustled and/or appropriated the goat. [19] During cross-examination the accused did not credibly oppugn the fact that he made the statement in question. And nothing was advanced in re-examination. And that marked the close of the prosecution’s case. THE DEFENCE’S CASE [20] [21] The accused– DW1, elected to give sole evidence on oath. In his defence on 5th July, 2023– DW1 harmed his credibility when in one breath he maintained that he never made the confession and in J4 the other gave the indication that he did not make the confession voluntarily as he had been threatened and that the police officers had tanned the hide of the accused– that he was cuffed at the time of his confession. [22] DW1 maintained that he could not have demonstrated to the police how he stole the goat from Chulungoma, as he did not rustle the goat in question. [23] During cross-examination DW1 confirmed that he misstated and that he had not been buffeted by the police nor did they wring a confession from DW1. And that he merely feared for his safety that is why he confessed to stealing the goat in the first place. [24] Nothing was advanced in re-examination. And that marked the close of the defence. [25] Having set a fitting background to the issue at hand, it is crucial to note as hereunder. In parenthesis – I will provide a fitting exposition to the concept of a trial-within-a-trial. [26] From the outset– I will direct our minds to In re KANGACHEPE MABO ZONDO V THE QUEEN (1963-1994) Z AND N. R. L. R 97 (CA) wherein the Defence Counsel objected to the production of a Confession Statement on the ground that it was not freely and voluntarily given The Court ordered a Trial within a Trial to be held. [27] In view of the foregoing position at law– the hereinafter assessment standard questions will aid in illumining the notion and import of a trial- within-a-trial in the realm of criminal procedure. WHAT HAPPENS WHEN THE PROSECUTION SEEKS TO PRODUCE INTO EVIDENCE A CONFESSION STATEMENT? [28] Well, as can be gleaned from the herein facts– the Prosecution seeks to produce into evidence a confession statement alleged to have been J5 made by the accused person – to this end, the Court is obliged to inquire from (DW1) the accused person if he or she has any objection to the production of such evidence, in casu, the accused contends having provided the statement voluntarily. [29] In the case of HAMFUTI V THE PEOPLE (1972) Z. R 240, the Court held that the Court’s obligation of making the said inquiry exists even if the accused is unrepresented. Therefore, failure to discharge the said obligation was held in the case of KASUBA V THE PEOPLE (1975) Z. R 274 to amount to an irregularity which can be cured if it is shown that there was no prejudice occasioned to the accused. However, failure to make the inquiry as to the objection of a Confession Statement may entitle a judge to attach less weight to it subsequently on appeal as did Judge Chomba in the case of MWELWA V THE PEOPLE (1972) Z. R 29 (HC). WHAT HAPPENS WHEN THE ACCUSED OBJECTS TO THE ADMISSION OF A CONFESSION STATEMENT? [30] Following the accused’s indication herein that the statement was not given freely and voluntarily and the accused’s misapprehension on the admission of the confession statement– this court was obliged to conduct a trial within a trial. [31] I call to aid the case of TAPISHA V THE PEOPLE (1973) Z. R 222 (CA) wherein it was held inter alia that – “voluntariness” is, as a matter of law, a condition precedent to the admissibility of a Confession Statement which must be decided by means of a Trial within a Trial. (Emphasis mine) [32] The foregoing holding received judicial endorsement in re NYAMBE V THE PEOPLE (1973) Z. R 228 (CA) wherein the court maintained that– the obligation to hold a Trial within a Trial where the issue of the J6 voluntariness of a Confession Statement is raised is mandatory. Thus, the holding of not a procedure that can and/or should be put to the vote, but it is a mandatory injunction that frames the essence criminal procedure in the Zambian jurisdiction. (Emphasis mine) [33] Further, in re WAKILABA V THE PEOPLE (1979) Z. R 74, the Supreme Court held to the effect that a Trial within a Trial must be held even at the close of the prosecution’s case where the question of voluntariness is raised. Failure to conduct a Trial within a Trial amounts to an irregularity which is curable if there has been no prejudiced to the accused. However, where prejudiced has resulted, or may have resulted, the appellate court must ignore the Confession Statement. The obligation of the Court to hold a Trial within a Trial applies whether or not the Confession Statement in question is verbal or in writing according to DOYLE in the Court of Appeal during the hearing of the case of EDWARD KUNDA V THE PEOPLE (1971) Z. R (99). DOYLE reiterated the foregoing in the case of ISLAND NKHUWA V THE PEOPLE (1971) ZR 134 (HC). (Emphasis mine) WHAT IS THE PROSECUTION’S STANDARD OF PROVING THE ABSENCE OF AN INDUCEMENT ALLEGED BY THE ACCUSED TO HAVE INFLUENCED HIM TO MAKE THE CONFESSION STATEMENT REST? [34] Well, as in all criminal matters– the standard of proof of the prosecution to negative any form of inducement is beyond reasonable doubt. This was the position espoused in the case of CHIGOWE V THE PEOPLE (1977) Z. R 21 (SC). WHEN MUST A COURT EXERCISE ITS DISCRETION TO EXCLUDE A CONFESSION STATEMENT FREELY AND VOLUNTARILY GIVEN? [35] The Court can exercise its discretion to exclude a Confession Statement even though freely and voluntarily made and otherwise admissible if: J7 i. The Court discovers that the Confession Statement was taken in circumstances unfair to the accused; MWIYA AND IKWETI V THE PEOPLE (1968) Z. R 53 (CA). ii. The Court discovers that the Confession Statement was obtained in breach of the Judges Rules. CHILESHE V THE PEOPLE (1972) Z. R 48 (HC); THE PEOPLE V CHANDA (1972) Z. R 116 (HC) It is not always that the Court is required to make a decision whether or not in the exercise of its discretion to exclude a confession. The Supreme Court in the case of ZEKA CHINYAMA AND OTHERS V THE PEOPLE (1977) Z. R 426 (SC) held that the said discretion must only be exercised where the issue of unfairness arises. WHAT ARE THE JUDGES RULES? [36] The Judges Rules are rules of practice drawn up for the guidance of the officers and not rules of law. This was held in the case of CHILUFYA V THE PEOPLE (1975) Z. R 138 What Judges Rules are Applicable in Zambia? The pre-1964 Judges Rules apply in Zambia. CHILESHE V THE PEOPLE (1972) Z. R 48 (HC) WHEN MUST A TRIAL WITHIN A TRIAL NOT BE HELD? [37] A Trial within a Trial must not be held when the accused objects to the production of a Confession Statement on the following grounds: i. That he or she did not make the Confession Statement sought to be produced into evidence by the Prosecution. This was held in the case of MWIYA AN IKWETI V THE PEOPLE (1968) Z. R 53 (CA). ii. That he or she did not make the Confession Statement sought to be produced into evidence by the Prosecution J8 but was nonetheless beaten by the Police in order to force him or her to make a Confession Statement. This was held in the case of MATTHEWS KALALUKA MATE V THE PEOPLE SCZ JUDGMENT NO. 11 OF 1996 3. iii. That the he or she did not understand or use the language in which the Confession Statement was recorded. This was held by the Supreme Court in the case of KAFUTI VILONGO V THE PEOPLE (1977) Z. R 423 (S) 4. iv. That he or she was or could have been scared. It must be alleged that he was actually put in fear which induced the making of the Confession Statement. This was held in the case of KAFUTI cited above. WHAT HAPPENS TO EVIDENCE OBTAINED IN CONSEQUENCE OF AN INVOLUNTARY CONFESSION STATEMENT? [38] The Evidence is admissible according to the case of THE PEOPLE V CHANDA (1972) Z. R 116 (HC). ANALYSIS OF THE LAW; FACTS VIS-À-VIS A TRIAL-WITHIN-A-TRIAL AND THE COURTS DETERMINATION ON THE ISSUE IN QUESTION [39] Having addressed my mind to the foregoing assessment standard questions, it behoves this court to establish whether or not the confession statement was indeed given voluntarily. [40] Without further ado– I hold the view that the accused owing but not limited to him holding a labile position in this matter, did unwittingly harmed the credibility of his testimony, when the accused of his own volition took the liberty of vacating the earlier contention that the police officers had coerced the same into making the confession statement, only to turn on a dime and suddenly argue religiously during his defence that he never confessed to rustling the goat in J9 question. Which behaviour I find beyond the pale for a person oppugning to ever confessing in the first place. [41] Following from the foregoing– the Supreme Court in ABEDINEGAL KAPESH AND BEST KANYAKULA V THE PEOPLE SCZ SELECTED JUDGMENT NO. 35 OF 2017, sympathized with the assertion by, Lord Mansfield in GRAVE V. MILLS 7 H& N 917, when he stated that: … “a man shall not be allowed to blow hot and cold - to affirm at one time and deny at another - making a claim on those whom he has deluded to his disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice - and it is one which the courts of law have in modern times usefully adopted. (Emphasis mine) [42] Thus, it ill behoves an accused person to blow hot and cold, especially in criminal matters as that may cast a blight on such a person’s testimony. Therefore, upon solemn appraisal of all the available evidence before me, I cannot definitively resolve in favour of DW1. This I say upon conscientiously gleaning that the version of the facts by DW1 is tinged with discrepancies. [43] More to the point– the accused did during cross-examination conceded to having made the confession statement without coercion, but simply added that he made the same under the weight of fear, which fear was not induced in him by the officer(s) investigating the crime in question. [44] Thus, when viewed in the round– the DW1 does not dispute making the statement free of any extrinsic forces, but as can be gleaned from trial– DW1 is more burdened with the awful spectre of having made apparent the fact that he rustled and or appropriated the goat in J10 question– which explains why DW1 is tenuously maintaining that he freely confessed to rustling the goat in question and in the same breath DW1 is resigned to ever making the confession statement altogether. [45] To iterate– it is a foregone conclusion that– DW1 regrets divulging the truth following– the looming threat of the sword of Damocles hanging over his head, owing to him making crisp his rustling of the goat; as opposed to whether or not he made the confession statement voluntarily. Given the circumstances, DW1 by vacating his earlier position made via the confession statement, DW1 is in essence clutching at straws. [46] In other words– DW1’s issue in essence is more of taking a crack at retracting an already made confession statement than it is an issue of whether or not the confession statement was made voluntarily. IN CONCLUSION [47] I have meticulously weighed the evidence by DW1, and I can roundly assert that with diligent scrutiny– I find the DW1’s evidence consummately wanting and littered with inconsistency. [48] Thus, I am persuaded that the prosecution has proven its case and that the confession statement was made voluntarily, and that being the case the inevitable corollary of my conclusion is that I admit the confession statement as part of the prosecution’s evidence. RULING DELIVERED AT MBALA IN OPEN COURT ON 11TH JULY, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J11