Peter Chongo v People (APPEAL NO. 145/2009) [2013] ZMSC 76 (3 December 2013)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO.145/2009 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: PETER CHONGO AND THE PEOPLE APPELLANT RESPONDENT CORAM: Sakala, C. J, Mwanamwambwa, Muyovwe, J. J. S. • On the 8 th December, 2010 and 3 rd December, 2013. For the Appellant: Mr N. Chomba, Principal Legal Aid Counsel and Mr K . Muzenga, Senior Legal Aid Counsel. For the Respondent: Mr F. R. Mchenga, Director of Public Prosecutions. JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. Chimbini V. The People (1973) Z. R. 191 Legislation referred to: 1. The Penal Code Act, Cap 87 of the Laws of Zambia. Section 120. J2 Former Chief Justice E. L. Sakala was part of the Court that heard this Appeal. He has since retired. Therefore, this is a majority Judgment. This is an Appeal against conviction. On the 11 th of January, 2006, the Appellant was convicted on one count of Aiding a Prisoner to Escape contrary to Section 120(a) of the Penal Code Chapter 87 of the Laws of Zambia. The Particulars of the offence were that the Appellant, with two other persons, on the 5 th day of May, 2005, at Luanshya in the Luanshya District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together, did aid Julius Silungwe, a prisoner, who was facing a charge of Forgery, to escape from Luanshya Central Police Cells. The other two persons who were charged together with the Appellant were acquitted while the Appellant was sentenced to 2 years imprisonment with hard labour from 23 rd January, 2006, suspended for 3 years. He appealed against the conviction to the High Court but the High Court upheld the conviction. J3 The evidence supporting the case for the Prosecution was from the following witnesses: PW 1 was Detective Inspector Chris pine Mwila. PW2 was Joyce Siabusi, a lady who went to have her son released from Police custody on the material day. PW3 was Moses Siabusi, the son to PW2. PW4 was Aaron Zulu, a business man and PWS was Detective Sub-Inspector Kennedy Banda, a Policeman at Luanshya Central Police. PW6 was Josephine Katenda a detainee at Luanshya Police Station. PW7 was Sub-Inspector Fred Kombalema and PW8 was Sub-Inspector Nkonde, a Policeman at Luanshya Police Station. PW9 was Detective Chief Inspector Kandundu Namakando, a Police Officer at Luanshya Police Station and arresting officer in this matter. DW2 was Constable George Musonda while DW3 was Sub-Inspector Akakulubelwa Mutumba. The brief facts of the case are that a suspect by the name of Julius Sinyangwe, the escapee in this case, was detained at Luanshya Police Station on a charge of forgery. The dealing officer in this forgery case was PWl. On the 5 th of May, 2005, PW4 met a young man who told him that the escapee was selling diesel. PW 4 went to Luanshya Police Station with the young man to meet the J4 escapee. Upon reaching the Police station, the Appellant opened for them and they entered the Police cells. In the cells, PW4 met the escapee and after negotiating the price, PW 4, the escapee and the young man were released out of the cells to the truck to draw the fuel. The Appellant is the one who opened for them to go outside. Whilst outside, the escapee, the young man, PW4 and the Appellant were seen by PWS. PWS saw the escapee, the young man and PW4 trying to decant fuel from a truck that was parked outside. This was around 12:50 hrs. Meanwhile, PW2 had gone to Luanshya Police Station to have her son, PW3 released from custody. PW3 had been detained for theft of tapes. PW2 paid the owner of the tapes and wanted PW3 released. PW3 was released from the Police cells by the Appellant around 16hours. PW6 had been detained at Luanshya Police Station together with the escapee. On the 5 th of May, 2005, she saw, the Appellant working in the morning and in the afternoon. Around 16hours, DW2 came to the office. DW2 called out all the names for detainees and he took them inside the cells. PW6 saw the escapee remain at ' ' JS the reception to the cells wearing 'tropicals'. DW2 asked the escapee why he was not going into the cells and he responded stating that he was waiting for the Appellant to take him upstairs. The Appellant confirmed this with DW2. PW6 then saw the escapee leave the Police reception at about the same time the Appellant let PW2 and PW3 leave the Police reception. The Appellant opened for PW2 and PW3 to leave and that's the same time the escapee left also. DW2, who was a co-accused and was acquitted on the charge, reported for work around 16hours. He started taking over the inquiry office inventory from PW8. The inventory had names of suspects in cells. PW8 told DW2 to proceed to the cells and take over the suspects from the Appellant. Before he could do that, his shift officer, PW7 arrived and remained in the inquiry office. DW2 e then proceeded to the cells. The cell door was opened for him by the Appellant. He found visitors at the reception to the cells. Some had come to sort out an issue of the tapes and the other was the escapee. He called out the names of the detainees to come to the reception. And he started calling their names one by one so that they go back to the cells. The Appellant was still with the keys to t ( J6 the cells. After he finished, DW2 went into the corridor and found the escapee. The escapee told DW2 that he was waiting for the Appellant to take him upstairs. DW2 noted that the escapee was wearing 'tropicals'. DW2 went to inquire from the Appellant and he confirmed that he was taking the escapee upstairs. When DW2 returned from the cells, he found that all the people who were at the reception, including the escapee had left. He concluded that the escapee was upstairs. When the Appellant left the cells, he gave the keys to DW2. DW2 got the keys from the Appellant and informed him that he was not going to sign the handover certificate because one suspect was still upstairs. The Appellant knocked off with DW3. On the way, the Appellant made a comment to DW3 that he had handed over all the Prisoners to DW2 and that no suspect had escaped from Police cells. DW3 did not comment on the issue. PW 1, who was the dealing officer in the matter involving the escapee, went to the cells with DW2 to pick up the escapee. They discovered that he was not in the cells. A check revealed that he was not at remand prison. The Occurrence Book did not indicate ,, J7 any manner of disposal of the escapee. The matter was reported to PW9 who investigated it and arrested the Appellant, DW2 and DW3. The Appellant's evidence was that on the 5 th of May, 2005, he reported for duty at Luanshya Police Station. That later, he was assigned to work as a custody officer. He stated that he went to the Police cells and took over the detainees from a deceased Police Officer. That he made regular visits to the cells and it was during those visits that he got a complaint from one of the detainees that the detainee wanted to sell some diesel from his truck that was parked outside so that he could raise some money to buy food. One suspect who had been released from custody had already been asked to find a buyer of the fuel. That when the buyer came, the Appellant allowed PW4 and the former detainee to enter the cells so that they could negotiate on the price with the escapee. This was done and the Appellant allowed PW4, the former detainee and the escapee to go outside and decant the diesel from the truck. He stated that PWS found him and the three persons outside and the Appellant explained why he had allowed them to decant the diesel. That as a result of PWS's intervention, the transaction failed and • f j J8 the Appellant took the escapee back to the cells and he continued working. He stated that at about 13: 10 hours, PW2 came to have PW3 released from custody. That PW2 and PW3 dealt with DW3. That PW3 was released around 15:30 hours. That he then took the Occurrence Book to write a hand over certificate to the in-coming shift. That he wrote all the names of the detainees in the Occurrence Book and gave it to PW8. That he waited for the Officer who was to take over the suspects in the cells and that around 15:40 hours, DW2 arrived. That DW2 called all the names of the detainees and no one remained at the reception except PW6. That PW8 asked him if all was ok and he responded in the positive. That he knocked off duty after that. He denied aiding the escapee to escape. Upon evaluating the evidence , the trial Court found the Appellant guilty of the Offence he was charged with. The Court stated the fallowing: " ... it is not disputed that a prisoner called Julius Sinyangwe was in custody and he escaped from the same on the 5th of May, 2005 at about 16 hours. However, what is in dispute is that he was aided by the two I f J9 suspects before the Court who dealt with him at the material time. PW4's evidence was that he met the escapee in the cells over 20 litres of diesel which was believed was being sold by the escapee. PW4 who was allowed to enter the cells by Al paid K40,000-00 to the escapee for 20 litres of diesel and together they moved out from the cells in order for the prisoner in question to deliver 20 litres of diesel to him. The group went to a truck parked nearby the police station where the suspect attempted to remove diesel from the tank and two detectives confronted them in regard to their activities at the truck. Al protected the suspect that it was done under his instructions. This was corroborated by PWS one of the mentioned detectives by PW4 ... PW6 corroborated PW2 that Al opened the cells door for people at the reception to leave and the same reception were the prisoner in question was ever mentioned to be found and this was also mentioned by PW2 who found him there over the 20 litres of diesel which was being handled by Al. Though Al admitted he dealt with the issue of 20 litres of diesel, he denied the allegation of freeing the suspect at the material time that the suspect was by then handed over to A2. A2 in his defence accepted that he found the suspect at the reception and took stock of him and learnt that he was still under the care of Al who had removed him from cells before he reported for duty and before he took on duties. A2 was corroborated by PW6 and PW2 that it was Al who opened cells for everybody at the reception to go out ... According to the evidence in court, Al knew the suspect he allowed at the reception should not have left the cells together with the people at the reception in that manner. The conduct of Al is what is aiding a prisoner in one's custody to escape .... " The Appellant was convicted to 2 years imprisonment with hard labour, suspended for 3 years. He appealed to the High Court but the Appeal was dismissed. In dismissing the Appeal, the High Court stated that: , IJ, • JlO " a perusal of the case record also supports the fact that the Appellant was in charge of the custody of the suspects in that he had the key to the cells and he allowed PW4 and the escapee Julius Sinyangwe to go out to the truck to decant diesel from the truck to sell so that he could raise money for food and there is no evidence on record to indicate that he came back." He now appeals to this Court against the conviction. There are two grounds of Appeal in this matter. These are as follows: Ground one: The Court below misdirected itself when it made a finding of fact that was not supported by the Court. Ground two: The Court below misdirected itself when it upheld the conviction of the Appellant on insufficient evidence to support the charge. The two Grounds of Appeal are similar and so they were argued together. On behalf of the Appellant, Mr Chomba contended that the finding by the High Court that the escapee, Julius Sinyangwe did not return to the cell after being allowed out by the Appellant in the morning, was not supported by the evidence on record. That PW6's I . (./_ . Jll evidence on record shows that the escapee escaped after hand over of all the detainees to DW2. He submitted that there was no direct evidence that the Appellant helped the escapee to escape. The conviction was based on circumstantial evidence and that the Appellant ought not to have been convicted. Mr Muzenga added that the case was one of inference. That the Court is only entitled to convict if there are no inferences in favour of the accused. He submitted that where there is more than one inference, the Court ought to adopt the inference that is favourable to the accused if there is nothing to exclude such an inference. He referred this Court to Mutale V. The People (1977) Z. R. 51. We however, did not find this case in this Volume of the Law Reports. On behalf of the Respondent, Mr Mchenga supported the conviction. He argued that there was overwhelming evidence that the Appellant aided the escapee. He stated that the Appellant was on duty when DW2 reported for work and that at that time, the escapee was not in the cells. When the Appellant was asked, he J12 confirmed that he was taking the escapee upstairs. That the evidence of DW2 was corroborated by that of PW2 and PW6. We have considered the evidence and looked at the submissions from both sides. We wish to agree with the submission on behalf of the Respondent that there was overwhelming evidence that the Appellant aided the escapee to escape. Firstly, it is not in • dispute that the Appellant allowed the escapee to leave the cell and go and decant diesel outside. We find it odd that a Police Officer can allow a detainee to leave the cell to decant diesel outside. In this case, the Appellant was not even the dealing officer in the case involving the escapee but without consulting the dealing officer, who was on duty on the material day, he decided to allow him to go outside. We find the Appellant's conduct extremely unprofessional and odd. Another issue is that the Appellant does not dispute the evidence of PW2, PW6 and DW2. PW2 and PW6 saw the escapee at the reception. Later, PW6 saw the escapee leave the cells at the time the Appellant opened the cells for PW2 and PW3 to leave. This shows a connection between the evidence of PW2, PW3 and DW2 in J13 that DW2 stated that when he reported for work, he found the escapee at the reception. That the escapee was wearing 'tropicals'. That the escapee stated that he was waiting for the Appellant to take him upstairs. DW2 inquired about this from the Appellant and the Appellant confirmed that he was taking the escape upstairs. That is how DW2 proceeded with his work. When he came back to the reception, DW2 did not find the escapee at the reception. PW6 however, saw the escapee leave the cells at the time PW2 and PW3 left. PW6 stated that the Appellant opened the cells for PW2, PW3 and the escapee. Further, the evidence on record shows that DW2 called the detainees one by one and the ones whose names were called went back to the cells. This whole time, the escapee was at the reception. After inquiring from him what he was waiting for, DW2 left the reception and when he came back, the Appellant was not there. DW2 assumed that he had gone upstairs with the Appellant. The keys to the cells remained with the Appellant this whole time and they were handed over to DW2 by the Appellant at the time the Appellant left the Police station. The Appellant was already outside • ' I J14 when he handed over the keys, through the grill door, to DW2. At this time, the escapee had already escaped. Mr Chomba argued that the finding by the High Court that the escapee did not return to the cells after being allowed out by the Appellant in the morning was not supported by the evidence. We find that the High Court was on firm ground when it made the finding it did. There is no evidence on record to indicate that the escapee was made to go back in the cells after he was allowed to go outside. The evidence shows that the escapee was allowed to go outside around lunch time and he was seen at the reception by PW2 and PW3 around 1 Shours. DW2 also found the escapee at the reception when he reported for duty around 16 hours. This evidence definitely does not indicate that the escapee went back into the cells and later came out. In any case, whether he went back into the cells and was later allowed to come out does not change the other evidence on record. The facts remain that the only person who opened for the escapee was the Appellant as he was the one with the keys to the cells until the time he left the police station. There is also strong evidence that PW6 saw the Appellant open the cells and . ' ' JlS allowed PW2, PW3 and the escapee to leave the cells. This evidence was not disputed by the Appellant. This is direct evidence which shows that the Appellant aided the escapee to escape. We have found no evidence on record to show that PW2 or PW6 would want to fabricate a story against the Appellant. There is evidence on record by DW3 that when he and the • Appellant were going home on the material day, the appellant made a comment that he had handed over all the detainees to DW2 and that no one had escaped. DW3 was a witness for the Appellant. We find this statement odd; it shows guilty knowledge of what the Appellant knew he had done. The Appellant knew that he had aided the escapee to escape and was trying to find a way of telling DW3 in advance that no one had escaped. This is because he knew that it would be discovered later that a detainee had escaped and so DW3 should be on his side. Only a person with guilty knowledge would make the statement the Appellant made to DW3. In summary, apart from the direct evidence showing that the Appellant aided the escapee to escapee, there is strong and compelling circumstantial evidence that links the Appellant to the J16 comm1ss1on of the offence. He had the keys to the cells and conveniently handed them over to DW2 at the time he stepped outside the reception to the cells to go home. He was so free with the escapee such that he allowed him to go outside without authority from the dealing officer who detained the escapee. He also allowed the escapee to sit at the reception for a long time while his friends were inside the cells. The Appellant told DW2 that he was taking the escapee upstairs when this was not true . He made an odd statement to DW3, that he had handed over all the detainees to DW2 and that no detainee had escaped. In the case of Chimbini V. The People (1973) Z. R. 191 , it was held that: "Where the evidence against an accused person is purely circumstantial and his guilt entirely a matter of inference, an inference of guilt may not be drawn unless it is the only inference which can reasonably be drawn from the facts ... " On the authority of the Chimbini case, we find that the only inference to be drawn from the evidence on record is that the Appellant aided the escapee to escape. J17 In conclusion, we find no merit in this appeal and dismiss it. • SUPREME COURT JUDGE E. C. Muyovwe SUPREME COURT JUDGE