Percy Chisanga v People (APPEAL No. 13/2018) [2018] ZMCA 617 (21 August 2018)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 13/2018 HOLDEN AT NDOLA AND LUSAKA (Criminal Jurisdiction) BETWEEN: PERCY CHISANGA AND THE PEOPLE APPELLANT RESPONDENT Coram: Mchenga, DJP, Chishimba and Majula, JJA On 22 nd May 2018 and 23 r d August 2018 For the Appellant: H . M. Mulunda, LM Chambers For the Respondent: F . M. Sikazwe, Senior State Advocate, National Prosecution Authority. JUDGMENT Mchenga, DJP, delivered the judgment of the court . Cases referred to : l. Ndalama v The People [1976] Z. R. 220 2. Mwaba v The People [1974] Z. R. 264 3. Gift Mulonda v The People [2004] Z. R. 135 4. Mwanza (A . B.) v The People [1973] Z. R. 329 5. Emmanuel Phiri and Others v The People [1980] Z. R. 77 6. Kalebu Banda v The People [1977] Z. R. 169 7. Saluwema v The People [1965] Z. R. 4 8. Emmanuel Phiri v The People [1982] Z . R. 77 -J2- 9. Zambia Revenue Authority v Hitech Trading Company Limited [2001] Z. R. 17 Legislation referred to : 1. The Penal Code, Chapter 87 of the Laws of Zambia 2 . The Criminal Procedure Code, Chapter 88 of the Laws of Zambia On the 14 th of October 2008 , the appellant appear e d before the Subordinate Courts charged with one count o f the offence of defi l ement contrary to section 138(1) of The Penal Code. The allegation was that on 4 th Octob er 2008 , he had unlawful carnal knowledge of a girl wh o was below the age of 16 years . At that time , he was not represented and the proviso to section 138(1) of the Penal Code was not explained to him when he took the plea . He denied the charge and the matter proceeded t o trial . The evidence implicating the appellant was essential ly that given by the prosecutrix , whose mother told t h e court , was 13 years old at the time the offence was committed . The prosecutrix testified that on 4 th October • -J3- 2008, around 16:00 hours, she left home in the comp a n y of friends. They met the appellant and went to a b a r in Kaunda Square Stage 1, where they took alcohol ic beverages. They then moved to Avondale Shopp ing Complex, where they continued to take al c oholic beverages. Between 23:00 and 2 4:00 hours, the appellant, who was driving, volunteered to drop her home. She got int o h is motor vehicle and instead of him taking her home, th ey ended up spending the night in the motor vehicle. In the course of the night, he forcibl y had ca rnal knowledge of her. She onl y got home around 09:00 h ou rs , the following morning. According to the prosecutrix's mother, her daughter d id not turn up on 4t h October 2008. When she returned th e following morning, she took her to Chelston Poli ce Station where they were issued with a medical rep ort . They went to the hospital where she was e x amined b y a -J4- doctor . Dr . Jonathan Kaunda Mwambo found that she had been carnally known . He also observed that her pri vate parts were swollen and bruised . There was also evidence from Inspector Hell en Mwankomba, the arresting officer , that on 7 th Octob er 2018 , she was assigned to investigate the case. She interviewed the appellant, who gave a statement. The statement was admitted into evidence after a tria l wi thin - a - trial, in which , the trial magistrate found that it was made freely and voluntarily . In that statement, the appellant admitted having been with th e prosecutrix on the night she did not turn up home . He also admitted carna l ly knowing her . On 2 nd February 2017, after the testimony of the arresting officer, the public prosecutor applied to have the charge amended . The date on which the offen ce was committed was amended from 29 th September 2008 , to -JS- 4 th October 2008 . The appellant was then allowed to retake the plea and he still denied the charge. Following the closure of the prosecution's case, the trial magistrate found that a prima facie case had be en made out against the appellant and she placed him on his defence. The appellant elected to remain silent and did not call any witness. However, in his final submissions, he told the court how he met the prosecutrix. He said he picked her from a bar in Kaunda Square, while she was in the company of others and dropped them at the Avondale Shopping Complex . He d enied spending the night with her in his motor vehicle or carnally knowing her. The trial magistrate found that even though the appellant was not represented at the time he took plea, it was not necessary to explain the proviso to him. She found that the prosecutrix' s age was proved by the Under-Five card, which showed that she was below the -JG- age of 16 years at the time the offence was committed. She also found that the medical report established that she was defiled. Finally, it was her finding that the prosecutrix' s evidence that she was defiled by the appellant, was corroborated by the appellant's warn and caution statement and what he said during his final submission s . She found the appellant guilty as charged and convict ed him. He was committed to the High Court for sentencing and a sentence of 20 years imprisonment with hard lab our was imposed on him. Before we set out what this appeal is about, we are going to comment on the completeness of the record of appeal. Other than the statement that was recorded from the appellant, which is missing, we find that the rec ord of appeal represents all the proceedings in the High Court and Subordinate Court. All the efforts to tra ce the statement have been futile but we are satisf ied -J7- that its contents are substantially reproduced b y the arresting officer ' s testimony during the trial - with in - a - trial. She told the trial magistrate what the appellant told her during the interview . This is an appeal against conviction and it is bas e d on three points of l aw . The first , is that the app e l lant was not informed o f the statutor y defence set ou t in section 138 (1) of The Penal Code; t h e second , being that prosecut i on witnesses were not recalled for cro s s examination after the charge was amende d and t he p l ea retaken ; and the third , i s tha t the appellan t was convicted on the uncorroborated e v idence of t he prosecutrix . I n support of the argument that there was a misdire c t ion when proviso to section 138(1) of The Penal Code, was not exp l ained to the appellant when he was takin g the plea, Mr Mulunda referred to the cases of Ndalama v The People 1 , Mwaba v The People2 and Gift Mulonda v The -JS- People 3 . He submitted that the appellant was prejudi ced by the omission because he could have successfull y raised the defence in the proviso , as the prosecutr ix was 1 3 years old at the time the offence was committ e d . In response to this argument , Mr. Sikazwe submitt e d that there was no need to explain the proviso becau se the appellant was represented at the time the plea wa s retaken and could not , therefore , have been prejudi c e d . He also submitted that the court correctly found th at there was no need to explain the proviso because th e law does not apply retrospectively . The appellant initially took his plea on 14 th Octobe r 2008 . At that time , section 138 of the Penal Code, following the Penal Code (Amendment) Act No . 15 of 2005, read as fo l lows : " ( 1) Any person who unlawfully and carnally knows any child commits a felony and is liable, upon conviction , to a term of imprisonment of not less than fifteen years and may be liable to imprisonment for life. • .. -J9- (2) 'Any person who attempts to have unlawful carnal knowledge of any child commits a felony and is liable, upon conviction , to imprisonment for a term of not less than fourteen years and not exceeding twenty years . (3) 'Any person who prescribes the defilement of a child as cure for an ailment commits a felony and is liable, upon conviction, to imprisonment for a term of not less than fifteen years and may be liable to imprisonment for life. (4) A child above the age of twelve years who commits an offence under subsection (1) or (2) is liable , to such community service or counselling as the court may determine, in the best interests of both children." It is clear that at the time the plea was taken , section 138 of the Penal Code, did not have the proviso . Tha t being the case , the trial magistrate could not ha ve read it out to him . The proviso only returned to the Penal Code on 12 th April 2012 , following the Penal Code (Amendment) Act No. 2 of 2011. Consequently , we find n o merit in the argument that the appellant was prejudiced when the proviso was not explained to him . -JlO- Coming to the argument that , the appel l ant was prejudiced by the trial magistrate ' s failure to ask the appellant whether he wanted to have any of the witness es recalled , following the amendment of the charge , Mr . Mulunda placed reliance on the case of Mwanza (A. B.) v The People 4 • In response , Mr . Sikazwe referred to section 213(1) of The Criminal Procedure Code and submitted that following the amendment , the appel l an t was allowed to retake the plea . By allowing him to retake the plea , the law was complied with and the re was no misdirection . Section 213(1) of The Criminal Procedure Code and the case of Mwanza (A. B.) v The People 4 , are concerned with the procedure that a court should follow when a charg e is amended for being defective "either in form or substance " . In this case , the amendment of the charge was not on account of it being defective in form or the substance. Following the testimony of the witness es , the date on which the offence was committed , as was set -Jll- ou t in the charge sheet , was at variance with that given by the wi tnesses in their testimony . The amendment of the charge and retaking of the plea , was se em ingl y ma de i n comp li ance with Section 213(1) of The Criminal Procedure Code and it reads as follows : "Where , at any stage of a trial before the accused is required to make his defence, i t appears to the court that the charge is defective either in substance or in form, the court may, save as in section two hundred and six otherwise provided, make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case: Provided that, where a charge is altered under this subsection- (i) the court shall thereupon call upon the accused person to plead to the altered charge; (ii) the accused may demand that the witnesses, or any of them, be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate and, in such last-mentioned event , the prosecution shall have the right to re-examine any such witness on matters -J12- arising out of such further cross- examination." However , sub-section (2) of the same provision , wh ich deals with variation in the charge and the eviden c e , on the dat e on which t he offence was commit t ed , r ea ds as follows : "Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof . " It follows , that if the date wh e n th e o f fen ce was committed is not correct , a charge is not defect ive " in form or substance " to warrant amendment on the basis of section 213 of the Penal Code. It was therefor e n ot necessary for the trial magistrate to amend the charge , retake the plea or recall the witnesses . We will now deal with the argument that t he conv ict ion cannot be sustained because it is anchored on the -J13- uncorroborated evidence of the pros ecu tr ix . Mr . Mulun da referred to the case of Emmanuel Phiri and Others v The People 5 , in which it was held that were there is insufficient evidence to support a conviction , an appellate court should not fill in the gaps by ma king adverse assumptions against the convict to justify th e convict ion. He argued that in this case , the prosecutrix' s evidence of who defiled her , was not supported b y any witness even though she was in the company of friends at the time the offence was alleg edly committed . Those witnesses should have been called to give evidence in support her testimony. Mr . Mulunda also pointed out that the medica l examination indicates that the prosecutrix had hepatitis B, a sexually transmitted disease . He ar gued that the appellant should have been examined to determine whether he also had the disease . He refer red to the case Kalebu Banda v The People 6 and submit ted that the failure to examine him for the diseas e , -J14- amounted to a dereliction of duty. It should lead to the assumption that had the examination been carri e d out , they would have found that he did not have th e disease . In turn, it raises the possibility that t h e offence could have been committed by someone else. Mr . Mulunda also referred to the case of Saluwema v The People 7 and submitted that since it was possible that someone else could have committed the offence , th e prosecution did not prove the case against the appellant beyond all reasonable doubt . In response to these arguments, Mr . Sikazwe referred to the case of Emmanuel Phiri v The People 8 and point e d out that this being a case of defilement, th e prosecutrix ' s identification of the appellant, as the person who defiled her, should have been corroborated . He then argued that it was corroborated ; the medic al report confirmed her claim that she was defiled , whi le the appellant's statement to the police supported h er .. -JlS- evidence that he is the one who committed the offenc e . There was also evidence that the appellant was with th e prosecutrix that night in the motor vehicle , h e therefore had the opportunity to commit the offenc e ; such opportunity corroborated the prosecutrix evidence . As regards the discovery of hepatitis B on th e prosecutrix and the failure to examine the appellan t for it, Mr . Sikazwe argued that even if there was dereliction of duty , there was overwhelming evidenc e impl i cating the appellant . Before we deal with the arguments by counsel on th e question of corroboration, we will comment on the trial magistrate's finding that the prosecutrix's testimon y was among other things, corroborated by what th e appellant said in his submissions . In the case of Zambia Revenue Authority v Hitech Trading Company Limited9 , it was held , inter alia, that : • -J16- "Arguments and submissions at the bar, spirited as they may be cannot be a substitute for sworn evidence . " Submissions, give the parties the opportunity to dir ect the court to the issues in contention by accurat ely setting out the facts and the law applicable to th e m. They are not a second opportunity for leading evidence . Having elected to remain silent, the trial magistrat e should have guided the appellant when he started givin g evidence during his submissions . Short of that , she could have allowed him to proceed as she did , but no t have placed any reliance on the evidence that he l e d during the submissions . We find that there was misdirection when the tria l magistrate decided to treat the appellant's submission as evidence . Notwithstanding this misdirection, we are satisfied that the prosecutrix ' s testimony wa s corroborated. As was submitted by Mr . Sikazwe, the prosecutrix's evidence that she was defiled, was corroborated by the medical report, while her evidenc e -J17- that it was the appellant , was corroborated b y the appe ll ant ' s sta t ement to the police . In that stateme n t , he admitted carnally knowing the prosecutrix when he spent the night with her in the motor vehicle . In our view , the tria l magistrate rightly found tha t th e med i cal report and t he statement , corroborated the prosecutr i x ' s testimony . It cannot , the circums t ances , be said that the appellant was convic ted on the uncorroborated evidence of the prosecutrix . As regards the argument that there was a dereliction of duty when the appellant was not tested for hepatitis B, we find that it was not the case . Even if the appellant was no t tested for hepatitis B, the evidence agains t him is overwhelming . In any case , results after such an exami nation , would not have impacted on the charge in any way because he was not charged with infecting t h e prosecu trix with t he disease , but defiling h e r . Further , whether he was infected or not , would not h ave implicated or exonerated him from the charge . ..., -J18- All t he arguments in suppor t of the appeal hav i ng failed , the appeal agains t the co n viction i s unsuccessful , the sentence imposed b y the judge in the c ourt below is upheld. C. F . R . Mche DEPUTY JUDGE PRE I F . M. Chishimba .... .......... ~ ........................... . ~ Majula COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE