People v Jonathan Sikazwe (3D/14/23) [2023] ZMSUB 12 (31 July 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/14/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: REPUBLIC OF ZAMBIA THE JUDICIARY js :: 1 Jvl r 1 ~ MAGISTRATE CLASS _ ti 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. 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); DAVID ZULU V. THE PEOPLE (1977) ZR 151; SAIDI BANDA V THE PEOPLE SELECTED JUDGMENT NO. 30 OF 2015; SAVIOUR MUKANSO V THE PEOPLE APPEAL NO. 80 OF 2017; BALLARD V THE QUEEN (1958) CR. APP. REP. 1; vii. CHABALA V THE PEOPLE (1976) Z. R. 151; J1 viii. ix. x. xi. STEVEN KALIBUKU V. THE PEOPLE SCZ APPEAL NO. 56 OF 2015; DONALD FUMBELO V THE PEOPLE SCZ APPEAL NO.476/2013 MOURICE MWEENE v THE PEOPLE CAZ APPEAL No. 112 of 2019, and CHILUFYA V THE PEOPLE (1975) ZR 180). STATUTE AND OTHER SOURCES: i. ii. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA, and MAGISTRATE’S HANDBOOK; 6TH EDITION (1991). 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] The cradle of the matter being that– 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. BACKGROUND FACTS PROSECUTION’S CASE [4] The state in leading its McCarthyite hunt against stock theft– summoned four (4) witnesses to make the case against the accused herein. [5] On 11th April, 2023, when the matter came up for commencement of trial the prosecution called as its first witness, PW1, a certain GOODWELL SIKOZI, a sexagenarian of Chulungoma village, the complainant herein, who gave his testimony on oath as hereafter. J2 [6] PW1 related that he was astir at around 04:46 in the small hours of the morning, when he ascertained that one of his goat’s was missing from his pen. [7] PW1 filled with dismay– and dreading to think of the possibility that the goat in question had been rustled– gave a bellow of dejection, when he bawled out for help, and to his aid came among others– NEVERS MUSUKUMA and RICHARD SIMPANJE. And much to his fortune– PW1 and his son-in-law discerned something approximating foot prints on the ground left by the goat and culprit. [8] Assiduously, PW1’s son-in-law was on the track to see where they would lead– opportunely, while streaming out in the direction of the tracks, the same lead him to where a certain– JONAS SIKAZWE was and PW1’s son-in-law had the same apprehended. [9] During cross-examination it was established that the accused had taken the beast in question from PW1’s pen. No questions were advanced in re-examination. [10] On the self-same day, the prosecution braced the witness of PW1 with that of PW2, NEVERS MUSUKUMA, of Chulungoma Village who testified as hereunder. [11] PW2 confirmed that it was around 04:00hrs in the wee hours of the morning when he heard PW1’s invocation of help. Which cry tore PW2 away from his sleep. PW2 with wife in tow– gravitated towards PW1’s dwelling, which abode was conveniently located within ear shot of their house. [12] It was PW2’s testimony that upon arrival– the scene was bursting at the seams with some local well-wishers who had come to PW1’s aid. PW2 being lean and hungry– and keeping hope alive– religiously trailed the discernible tracks on the ground left by the culprit and the goat to see where the marks would lead. And putting great store on J3 his search– PW2 was fortunate enough to search out the accused at Kasenga Market in Maround compound, who was at a certain bar, whereat PW2 being acquainted with the accused– accosted him with the remark– “what have you done?” which PW2 avowed with cordial disdain. [13] The accused gripped with concern– slugged mud at PW2, who then saw fit to have the matter reported at the police. Alas, the local police post was yet closed– in the wake of this development, PW2 ingeniously, resorted to shout– thief! Consequently, a mod descended and apprehended the accused who was later tucked away at Maround Police Post. [14] In parenthesis– PW2 related that when he found the accused– the beast in question had already been slaughtered, and that providentially, PW2 was only able to identify the goat by its horns and hide. [15] During cross-examination the accused in putting something to PW2 advanced questions that were to say the least– extraneous to the testimony on record. Nothing was advanced in re-examination. [16] Thenceforth– the state further allied the testimonies of their witnesses with that of PW3, MATTHEW SINYANGWE, a tricenarian of Maround compound, in the Mbala district, who testified as hereunder. [17] On 30th March, 2023, at around 05:00hrs in the morning, PW3 was coming from Maround compound, so that he could fetch his bike from town. [18] En route to town– PW3 had a curious encounter with the accused somewhere at a locale called “Pa Ruthi” in old market area– who at the time was laden with a white and black goat. And after exchanging pleasantries with PW3– the accused was seen mounting a motor bike bound for Kasenga Market. J4 [19] It was PW3’s testimony that thereupon– at somewhere around 05:30hrs, he met PW2 in the company of some men, who he greeted and later learnt that the same was looking for a black and white goat, which animal had been purloined by persons’ unknown. PW3 then related to PW2 that he had seen the accused with a goat fitting the description given by PW2, heading in the Kasenga market direction. [20] PW3 made a dock identification of the accused who was perched on a sit in the accused dock. [21] During cross-examination it was established that– PW3 could not have apprehend the accused as he was not in the moment aware that he had rustled the goat in question. Nothing was advanced in re- examination. [22] In sum– the state summoned its last witness, PW4, JULIUS MPHANDE, a detective constable at Mbala Police Post who testified as hereunder. [23] PW4 indicated that it was on 31st March, 2023, when he reported for work at around 08:00hrs in the morning– PW4 was allocated a docket on stock theft wherein male GOODWELL SIKOZI, of Chulungoma reported that his nanny goat was stolen by male JONATHAN SIKAZWE and that the incidence occurred at a crepuscular hour– somewhere between the 29th March, 2023, at around 20:00hrs and 30th March, 2023, at around 04:00hrs in the morning. [24] PW4 acting on the report by PW1– he ascertained that the accused was already in police custody, he then facilitated an ephemeral transference of the accused from the holding cell to the CID’s office; thereat– a warn and caution statement was issued to the accused in bemba, a language the accused properly understands and the accused in turn gave a free and voluntary response admitting the charge. J5 [25] Consequently, PW4 charged the accused with the offence of stock theft contrary to section 275 of the Penal Code, CAP 87 of the Laws of Zambia. [26] Soon after that– the accused led PW4 to the scene of the crime whereat he demonstrated how the crime was committed. [27] Nothing was advanced in cross-examination and re-examination on the part of the defence. The prosecution subsequently closed its case. [28] At the close of the prosecution’s case, the court then found the accused with a prima facie case to answer and put the same on their defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. THE DEFENCE’S CASE [29] The accused person elected to give a sole testimony on oath– the same was purposefully styled by this honourable court as DW1, and rehearsed as hereunder. [30] On 24th July, 2023, when the matter can up for trial– it was DW1’s testimony that, when wetting his whistle at a bar parlour in Mbala, he discerned from a distance some persons who accosted him and accused him of having rustled a goat. [31] DW1 indicated that– as they were bandying words with PW2 who was accusing him of rustling a goat– people started gathering about them, and it was DW1 intimation that, he was then set about by an angry mod who sympathised with the PW2’s version of the facts and thusly, roughed DW1 up to the point of unconscious. [32] Fortunately, for DW1, some unidentified persons dealt with him softly, as they came to his aid– cleaned him up and attempted to wash out his blood-stained vest. J6 [33] DW1 intimated that– a while later, someone came and pointed at DW1 as having rustled the goat and the same had DW1 felt on his collar and consigned to Maround police post. [34] DW1 indicated that at Maround police post he was not interrogated– and that his stay there was fleeting, as not long after being placed in custody– a land cruiser pulled up and the police had DW1 taken to Mbala police post where he awaited his court appearance. At Mbala police post DW1 indicated that he knew nothing about the rustling of the nanny goat in question. [35] During cross-examination the accused denied seeing PW3 on the morning in question. Further, it was confirmed that he never challenged the testimony by PW2 in his cross-examination of the same. Further, it was established that DW1 span a tale when he claimed to have been drinking alcohol with persons unknown. No questions or clarifications were put forth in re-examination. [36] And that marked the close of the defence’s case. FACTS IN DISPUTE [37] Hereinbefore was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: the accused persons disputes having stolen the goat from GOODWELL SIKOZI; that the confession made by the accused was not a free and voluntary statement; and that the stock in the accused person’s possession was taken from the complainant. THE LAW ESTABLISHING THE CHARGE IN CASU [38] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 275(1) constitute the offence of stock theft, and enacts as follows: (1) If the thing stolen is any of the following, that is to say: a horse, mare, gelding, ass, mule, camel, ostrich, ram, ewe, J7 whether, goat or pig, or the young of any such animal, the offender is liable: (a) in the case of a first offence, to imprisonment not exceeding fifteen years; (b) in the case of a second and subsequent offence to imprisonment for a period of not less than seven years and not exceeding fifteen years. (Emphasis supplied) INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [39] In view of the foregoing adumbrated facts– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused person unlawfully procured the goat of one GOODWELL SIKOZI; (ii) that the accused person dishonestly converted the stock to his own use other than the special owner or general owner; (iv) that the accused had the intention to deprive the owner permanently; and (v) that the accused person had no claim of right. [40] As a result, the accused 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 [41] From the outset, it is material to note that the standard practice, to which I have to toe the line is this that– in criminal matters the onus is on the prosecution to prove their case, as per the Supreme Court’s position in re 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 J8 prosecution… The standard of proof must be beyond all reasonable doubt”. (Emphasis mine) [42] 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. [43] 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). [44] In casu, I am required at law to admirably square up to the situation wherein the massive through line according to the prosecution via its witnesses is that– DW1 rustled a black and white nanny goat from PW1. The state has stoutly argued that the accused (DW1) did appropriate a nanny goat belonging to PW1 and DW1 in this matter is a dyed-in-the- wool defendant, who has obstinately maintained his innocence. [45] The state has on the basis of the particulars of what transpired somewhere between the 29th March, 2023, at around 20:00hrs and 30th March, 2023, at around 04:00hrs in the morning, inculpated the accused of rustling the goat in question. [46] In view of the foregoing– it is the solemn duty of the court to consider all the evidence before it, so that it can pronounce itself on the issue judiciously. [47] At this point, it is a foregone conclusion that, the evidence and or facts surrounding this issue, wherein the state is alleging that DW1 rustled a goat from PW1 is squarely circumstantial. [48] Principally, the law with respect to circumstantial evidence has been reiterated many times by the Supreme Court of Zambia (hereinafter referred to as ‘the court’); which is that: in order to convict based on circumstantial evidence, the inculpatory facts must be incompatible J9 with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt. (Emphasis mine) [49] By way of emphasis, I echo the cautionary note that was sounded by the apex court in re 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.” (Emphasis mine) [50] Further, in re SAIDI BANDA V THE PEOPLE SELECTED JUDGMENT NO. 30 OF 2015¸ the Supreme Court held inter alia that: … we have carefully considered the evidence on record, the judgment of the trial court, as well as the animated submissions of counsel. It is rightly common cause that the evidence upon which the learned trial judge convicted the appellant was all circumstantial. None of the prosecution witnesses testified that they saw the appellant kill the deceased. We must state at the outset that it is competent in some instances to convict upon circumstantial evidence. We wish to restate the law as regards circumstantial evidence by adding that this form of evidence, notwithstanding its weakness as we alluded to in the David Zulu case, is in many instances probably as good, if not even better than direct evidence. We are sympathetic to the observation by Lord Heward, Chief Justice of England in P. L. Taylor, and Other v R, where J10 at page 21 he states: “It has been said that the evidence against the applicant is circumstantial; so, it is but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidences, is capable of proving a proposition with the accuracy of mathematics.” (Emphasis supplied) [51] And in a later judgment– the court held in re SAVIOUR MUKANSO V THE PEOPLE APPEAL NO 80 OF 2017: in our more recent decision in SAIDI BANDA V THE PEOPLE, we acknowledged, on the faith of the English case of P. L. Taylor & Others v. R that, in spite of the avowed ‘weakness’ normally associated with circumstantial evidence, there are instances when it is ‘probably good’ or ’even better’ than direct evidence. (Emphasis provided) [52] Notwithstanding, the court in re DAVID ZULU V THE PEOPLE (1977) Z. R. 151 (S. C.) held the view that– 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 guilt. (Emphasis supplied) [53] In essence– if guilt is not the only inference to be arrived at, the whole evidence goes pear-shaped. The state herein has argued that accused (DW1) did appropriate the goat belonging to PW1, and it has allied its espoused position with the testimonies of PW2 and PW3 and PW4 which testimony the accused has not convincingly expostulated. [54] What is more, DW1 when cross-examining PW2 advanced extraneous material roundly unrelated, which when viewed in the round is bereft of evidential value and is to itself exiguous to secure his innocence, as it has not roused reasonable doubt and creates not alternative inference. [55] Furthermore, when PW3 posited that he had seen the accused laden with a goat, DW1 failed to challenge PW3 on the truthfulness of his J11 testimony, except to tenuously query that– why did PW3 not arrest him when he saw him with the goat? Which position PW3 found laughable as that was knowledge, he only came across in the wake of meeting PW2 on his search for the missing beast. [56] A root and branch reading of the herein facts will evince that when PW1, PW2 and PW3 gave their testimonies, DW1, did not advance material before this honourable court reasonable enough to militate against the inculpatory facts that the state through its witnesses had brought forward. Instead, he merely maintained obdurately that he had not purloined the goat from the pen of PW1, notwithstanding the overwhelming circumstantial evidence established against him. [57] This was the Supreme Courts position in re CHABALA V THE PEOPLE (1976) Z. R. 151– if an explanation is given, because guilt is a matter of inference, there cannot be a conviction if the explanation might be reasonably be true, for then guilty is not the only reasonable inference. It is not correct to say that the accused must give a satisfactory explanation. (Emphasis mine) [58] Thusly– permit me in lieu of a more common parlance to add that– such laxity and or behaviour on the part of accused– I find beyond the pale for a person oppugning the fact that he had committed the offence of stock theft. [59] On the face of it– DW1 in his defence appears to tacitly intimate that he was never at PW1’s pen on the date and time in question– DW1 in his defence is trying to come the raw prawn, by simply remarking that he was only accosted by PW2 and accused of rustling a goat, as if to say he was oblivious of what PW2 was talking about. Alas, DW1 did not make apparent the herein position before being put on his defence. [60] Which begs the question– when should the accused person’s defence be raised? Well. Swarbrick, in the MAGISTRATE’S HANDBOOK; 6TH J12 EDITION (1991), quotes a passage in re 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.” (Emphasis supplied) [61] 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”. (Emphasis mine) J13 [62] Furthermore, in re 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) [63] More to the point– it was the testimony of PW4 that, the accused when questioned on rustling the goat did make a voluntary confession admitting to having rustled the goat, which testimony he did not oppugn during cross-examination. [64] It is worth noting that– at the point when the police make the argument that the accused did confess to an infraction and or committing an act frowned upon by the law– The court must in all cases ask the defence whether they wish to object to the admission of evidence of a confession. It is immaterial whether or not an accused is represented by counsel. This was the position in re MOURICE MWEENE v THE PEOPLE CAZ APPEAL No. 112 of 2019. (Emphasis mine) [65] Purposefully, this court did conduct a corresponding trial-within-a-trial wherein it was crisply established that the accused (DW1) was 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. [66] Further, the accused did not dispute the that he led PW4 to the scene of the crime whereat he demonstrated how the crime was committed. It is worth noting that– leading and demonstrating is self-incrimination and carries the same weight as a confession, and as such, the police were obliged to administer a warn and caution before the leading. The hereinbefore was the espoused position in re CHILUFYA V THE PEOPLE (1975) ZR 180). (Emphasis mine) J14 [67] In the main– I am persuading that the inevitable corollary of the facts herein on both the prosecution and the defence proves that the accused is indeed guilty of the charge in question. [68] This I say, upon solemn appraisal of all the available evidence and when considered in totality the same overwhelmingly points to nothing but the guilt of the accused persons. VERDICT [69] I have meticulously weighed the evidence before me, and I can roundly assert upon diligent scrutiny that– the prosecution has painstakingly built an irrefragable case against the defence– the defence in obstinate refusal has advanced all his arguments with might and main, but in the end the same came to naught, as he has not credibly expostulated with the prosecution’s witnesses and or evidence. [70] I therefore find the accused person GUILTY as charged for the offence of stock theft, contrary to section 275 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [71] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 31ST JULY, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J15