Ndhlovu v The People (Appeal 139 of 2012) [2014] ZMSC 18 (9 March 2014)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 139 OF 2012 (Criminal Jurisdiction) B E T W E E N: PHILIP NDHLOVU AND THE PEOPLE APPELLANT RESPONDENT CORAM: MUMBA, AG. DCJ, WANKI, JS, AND LENGALENGA, AG. JS On 8th October, 2013 and 10th March, 2014 For the Appellant: Mr. K. Muzeng’a, Principal Legal Aid Counsel of Legal Aid Board For the Respondent: Mrs. C. L. Phiri, Senior State Advocate of National Prosecutions Authority ___________________________________________________________________________ J U D G M E N T ________________________________________________________________ WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. Chipango and Others -Vs- The People (1978) ZR 304. 2. David Zulu -Vs- The People (1977) ZR 157. 3. Elia Kunda -Vs- The People (1980) ZR 100. 4. George Musongo -Vs- The People (1978) ZR 266. 5. Simon Malambo Choka -Vs- The People (1978) ZR 243. This is an appeal by the appellant against his convictions on two counts. The appellant was convicted and sentenced to death on one count of Aggravated Robbery, contrary to Section 294(2) of the Penal Code, Chapter 87 of the Laws of Zambia, the particulars of which were that; the appellant on the 30th day of June, 2003 at Livingstone in the Livingstone District of Southern Province in the Republic of Zambia jointly and whilst acting together with another person unknown, did rob Trevor Chilungo of a motor vehicle namely, Toyota Corolla Registration Number ABA 5496 valued at K20,000=00 the property of Trevor Chilungo and at or immediately before or immediately after such robbery did threaten to use actual or personal violence to the said Trevor Chilunga in order to overcome resistance to its being stolen. The second count was murder, contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of which were that the appellant on the 30th day of June 2003 at Livingstone in the Livingstone District of the Southern Province in the Republic of Zambia, whilst acting J2 together with another person unknown, did murder Trevor Chilungo, by the Livingstone High Court. The appellant’s conviction was based on the evidence of eight witnesses, namely Nchimunya Siabona, PW1; Zaza Simenda, PW2; Inspector David Chisenda Mwila, PW3; Detective Inspector Peter Mudenda, PW4; Detective Chief Inspector David Zengani Phiri, PW5; Peter Chapu Katongo, PW6; Detective Inspector Lackson Mwamba, PW7; and Detective Chief Inspector Kenny Mainza, PW8. The evidence of PW1 was that he is the owner of the subject vehicle, a Toyota Corolla Registration Number ABA 5496 valued at K20,000,000=00; that on 30th June, 2003 he released the vehicle to the deceased who was his driver; that following information, he found the body of the deceased in the boot of his vehicle. PW2’s evidence was that on 1st July, 2003 he was requested by the appellant to assist him to remove his vehicle that was stuck in the sand; he later identified the vehicle as that of his friend Zaelo; he later attended an identification J3 parade that was conducted by PW4 where he identified the appellant. The evidence of PW3 was that he discovered the subject vehicle which was abandoned; and that upon opening the boot he found the deceased’s body. The evidence of PW4 was that he conducted an identification parade on 18th February, 2004 where PW2 identified the appellant as the person who requested for assistance to remove his vehicle which was stuck in the sand. PW5, a Scenes of Crime Officer, inspected the stolen vehicle which was abandoned and found documents that included a prison release certificate in the name of the appellant. Later, he took pictures of the identification parade that was conducted by PW4. The evidence of PW6 was that the appellant went to their house after 20.00 hours but later he left only to return at about 22.00 hours with a friend driving a vehicle. After 22.00 hours the appellant left escorting his friend, he returned the following morning at about 05.00 hours looking disorganized and without shoes; and that the appellant left later in the morning. J4 PW7’s evidence was that he investigated the case; later he interviewed the appellant who was apprehended in Lusaka, after which the appellant volunteered to lead him to the scene of crime where he demonstrated how the deceased, who was a Taxi driver, was killed. Subsequently, he arrested the appellant for the subject offences, under warn and caution the appellant denied the charges. PW8 attended the postmortem examination on the body of the deceased which was conducted by Dr. Siajumbula on 4th July, 2003. The appellant in his sworn evidence as DW1 denied committing the offences. According to him on 30th June, 2003 he came from Lusaka delivering printed T-Shirts, and business cards for Care International. After delivering the items to Care he met an old School friend Mercy Moono whom he accompanied home along Zambezi Road after 13.00 hours. When he left after 15.00 hours he went to Katongo (PW6)’s house. He however, did not find the owner of the house; when he left he went back to Mercy’s house and together they went to Water front around 16.00 hours where they remained up to 19.00 hours. J5 They then went to Katongo’s house where they had super. After that in company of his cousin Kaoma Kamukoshi they walked back to town where they had drinks at Eat-rite. They then moved to Livingstone. After he felt tired he decided to go to Katongo’s house. When he walked out of Livingstone he was called by one of the Taxi Drivers to book him, upon agreeing on the terms he got in the taxi. As the taxi was reversing, two men also got in the taxi. They then headed towards the Airport. While they were on the Airport road, he received a knock on the head and he was tied. Later, he managed to escape from the taxi and went to Katongo’s around 05.00 hours. Thereafter he went to the Bus Station and left for Lusaka. While in Lusaka he went to the police and explained to the Division Criminal Investigations Officer, Mr. Kasabu who asked him to see him in two days. When he went to see the Division Criminal Investigations Officer, he found junior police officers who told him they were under order to detain him. After two days, he was transferred to Livingstone where he was charged for the subject offences. Subsequently he was J6 put on an identification parade where he was identified by one of the witnesses Zaza Simenda, PW2. The trial Court after considering the evidence before it, found that it was not in dispute that a taxi driver by the name of Trevor Chilungo was found in the boot of the taxi he was driving; and that a jacket and a sandal belonging to the appellant were found in the vehicle. The trial Court further found that the evidence against the appellant was circumstantial; that the appellant was properly identified; that the evidence in the case is strong and cannot be faulted; and that the only reasonable inference to be drawn from the facts of this case is that the appellant is guilty as charged; the trial Court then found that the prosecution had proved its case beyond reasonable doubt and found the appellant guilty on both counts, and accordingly, convicted him. The trial Court then proceeded to impose the ultimate death sentence on both counts. The appellant has advanced two grounds of appeal as follows:- 1. The learned trial Judge misdirected herself when she failed to treat PW2’s evidence with caution as J7 he was a witness with a possible interest of his own to serve. 2. The learned trial Judge erred in law and in fact when she convicted the appellant on circumstantial evidence as an inference of guilt was not the only inference that could reasonably be drawn from the facts of the case. In support of the foregoing grounds of appeal, Mr. Muzeng’a filed Heads of Arguments on which he wholly relied at the hearing of the appeal. In support of ground one of the appeal, Mr. Muzeng’a submitted that, there is undisputed evidence on record that PW2 was found with a jack (P1) for the car which the deceased person used to drive. Counsel pointed out that this is clear from PW2’s evidence at page 3 top of the record. It was argued that what is not clear is how he was found with property which was in the possession of the deceased; whether he voluntarily took it to the police or whether police investigations led to the recovery of the jack from him. Mr. Muzeng’a contended that the learned trial Judge did not address her mind to whether or not PW2 could properly be treated as a witness with his own possible interest to serve. It was argued that what the trial Court heavily considered is the J8 issue of credibility of PW2. The trial Court had this to say at pages 64 to 65:- “The evidence of PW2 was very lengthy and detailed. I observed his demeanour as he gave evidence and he was not shaken in cross- examination.” The Court was referred to the case of SIMON MALAMBO CHOKA -VS- THE PEOPLE (5) where the Court held that:- “A witness with a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanour and plausibility of his evidence. That “something more” must satisfy the Court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect witness.” Further, this Court in the case of CHIPANGO AND OTHERS -VS- THE PEOPLE (1) held that:- “Where because of the category into which a witness falls or because of the circumstances of the case he may be a suspect witness that possibility in itself determines how one approaches his evidence. Once a witness may be an accomplice or have an interest, there must be corroboration or support for his evidence before the danger of false implication can be said to be excluded.” Counsel submitted that what is abundantly clear from the authorities above is that it is not a question of credibility but J9 whether or not a witness falls in the category of persons with their possible interest to serve. Mr. Muzeng’a argued that in the case at hand, PW2 was found with a jack which was in the possession of the deceased. He further did not tell the Court how long he kept the jack and how it was found with him and subsequently with the police. Counsel submitted that this witness cannot clearly be relied on and his evidence in the absence of corroboration must be discounted entirely. It was contended that had the trial Court properly directed its mind to the possibility of PW2 being a witness with a possible interest to serve, it would not have relied on his evidence to convict the appellant. Mr. Muzeng’a therefore, prayed on this ground, this Court allows the appeal and discounts entirely PW2’s evidence. In support of ground two of the appeal, Mr. Muzeng’a contended that as the trial Judge rightly observed, the evidence against the appellant is circumstantial. Counsel submitted that apart from the problematic evidence of PW2, which has been adequately dealt with in ground one, the circumstantial evidence is given by PW5, PW6 and the appellant himself. J10 Mr. Muzeng’a pointed out that according to PW5, when he arrived at the Scene where the vehicle was abandoned he found, on the passenger’s seat, a half pair sandal, a windbreaker (a weather jacket) blue/greenish in colour and inside the jacket were some documents on which the name Phillip Ndhlovu was written. PW5 further, told the Court during cross-examination that he found the sandal in the passenger’s side at the back seat. PW6 told the trial Court that the appellant visited them on 30th June, 2003 and around 22.00 hours he left PW6’s house and only came back between 05.00 hours and 06.00 hours the following morning looking disorganized and as if he had been involved in a fight and looked tired. PW6 asked the appellant about it and he told him that he (appellant had been attacked). The appellant basically accepted that the sandal and jacket were his and explained how these properties found themselves in the motor vehicle in question. Reliance was placed on the case of DAVID ZULU -VS- THE PEOPLE (2) where the Court held that:- (i) “It is a weakness peculiar to circumstantial evidence that by its very nature it is not J11 direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the fact in issue and from which an inference of the fact in issue may be drawn; (ii) It is incumbent on a trial Judge that he should guard against drawing wrong inferences from the circumstantial 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 conjecture so that it attains such a degree of cogency which can permit only an inference of guilt; (iii) The appellant’s explanation was a logical one and was not rebutted, and it was therefore an unwarranted inference that the scratches on the appellant’s body were caused in the course of committing the offence at issue.” Counsel contended that in the case at hand, the appellant explained the circumstances surrounding the case. In fact the appellant’s explanation that he was equally a victim of a vicious attack together with the deceased is even supported by PW6’s evidence of what he observed. It was further argued that the appellant’s evidence that he was put between the front seat and the back is supported by PW5’s evidence of finding appellant’s sandal in the back seat. Mr. Muzeng’a submitted that what is also abundantly clear is that the appellant reported the incident to the police. It was J12 argued that this conduct is clearly not in consonance with conduct of a guilty person. Counsel contended that the explanation given by the appellant can reasonably be true; and that an inference of guilt is not the only inference which can reasonably be drawn from the facts. In respect of the question of how the appellant managed to escape, if he was tied and had his bomber covered on his heard, Mr. Muzeng’a submitted that no questions were put to the appellant in cross-examination by the State in order to challenge that evidence and the learned trial Judge did not ask any questions on the subject by way of clarifications. This evidence remains unchallenged that he managed to escape. With regard to the evidence of leading and demonstration referred to by PW7 Counsel submitted that evidence of leading is a confession and it must be voluntary. Further this is leading to a place which the police already knew and no fresh evidence was recovered. It was contended that the evidence of leading has no value and must as such be excluded. In relation to the evidence of demonstration, it was argued that PW7 did not J13 warn and caution the appellant, it must therefore be disregarded. Reliance was placed on the case of GEORGE MUSONGO -VS- THE PEOPLE. (4) Mr. Muzeng’a contended that the sum total of their submission is that the circumstantial evidence herein is very weak such that an inference of guilt is reasonably untenable. Counsel therefore, prayed on this ground that the appeal be allowed, the conviction and sentence be quashed and the appellant set at liberty. Mrs. Phiri, Senior State Advocate on behalf of the respondent informed the Court that they received the grounds of appeal and heads of arguments late on 7th October, 2013 afternoon and she had not had a chance to peruse them. She therefore, sought leave of the Court to allow her file a written response within ten days. The Court granted the respondent leave to file response by 22nd October, 2013 and reply if any by 29th October, 2013. However, the respondent has not complied with the Court order and has not filed any response. We have therefore, decided to proceed with our judgment without the respondent’s response. J14 We have considered the grounds of the appeal; the heads of arguments on behalf of the appellant; the evidence that was adduced before the Court below; the authorities referred to; and the judgment of the Court below that has been appealed against. In ground one of the appeal, the trial Court has been attacked when it failed to treat PW2’s evidence with caution as he was a witness with a possible interest of his own to serve. It was submitted in support that there is undisputed evidence on record that PW2 was found with a jack, exhibit P1 for the car which the deceased person used to drive. It was contended that the learned trial Judge did not address her mind to whether PW2 could be treated as a witness with his own possible interest to serve. Reliance was placed on the decisions in the cases of SIMON MALAMBO (5) and CHIPANGO. (1) It was contended that what is abundantly clear from the foregoing authorities is that it is not a question of credibility but whether or not a witness falls in the category of persons with their possible interest to serve. It was pointed out that PW2 was found with a jack which was in possession of the deceased. It was therefore, submitted that PW2 cannot clearly be relied J15 upon and his evidence in the absence of corroboration must be discounted. From the authorities, PW2 could be classified as a witness with his own interest to serve as he was found with a jack exhibit P1, therefore his evidence needed to be corroborated. There is however, sufficient corroborative evidence on record. To start with according to PW6, the appellant left their house after 22.00 hours escorting a friend only to return alone the following morning between 05.00 hours and 06.00 hours, and that he was surprised the state he was in because he had no shoes and he was putting on something with a bomber on top of his T-Shirt; then the evidence of PW5, that the appellant’s sandal, windbreaker and a certificate of release from prison were found in the stolen vehicle. The appellant’s evidence that he was attacked and was tied, was not believed by the trial Court. Further as the trial Court held the appellant’s sudden departure from Livingstone did not demonstrate that he was innocent. There was also evidence from PW7 that the appellant led to the scene of crime and demonstrated how the deceased was killed. We have also noted from the record that the J16 appellant did not challenge the evidence of PW2 as he was not cross-examined on the issue. In the circumstances, we are of the view that though PW2 could be said to be a suspect witness, his evidence was adequately corroborated. We, therefore, find no merit in ground one of the appeal. It is, accordingly dismissed. In the second ground of appeal, the appellant has attacked the trial Court when it convicted the appellant on circumstantial evidence as an inference of guilt was not the only reasonable inference to be drawn on the facts of the case. In support of ground two of the appeal, it was pointed out that the trial Court observed that the evidence against the appellant is circumstantial. It was contended that apart from the problematic evidence of PW2, the circumstantial evidence was given by PW5, PW6 and the appellant himself. In support, the Court was referred to its decision in the case of DAVID ZULU -VS- THE PEOPLE (2) that:- (i) 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 fact in issue and from which an inference of fact in issue may be drawn.” J17 And the case of ELIAS KUNDA (3) where this Court held inter alia that:- (ii) In cases where guilt is found by inference, as for instance, where this doctrine of recent possession is applied, there cannot be conviction if an explanation given by the accused, either at an earlier stage (such as to the police) or during the trial, might reasonably be true.” We have considered the second ground of the appeal; the arguments in support; the authorities referred to and the relevant portion of the judgment of the trial Court. We have noted that the trial Judge in her judgment considered the circumstances; the evidence by the witnesses and the conduct of the appellant and found that the circumstantial evidence “in this case is strong and that indeed, the only reasonable inference to be drawn from the facts of this case, and I have found is that the accused is guilty as charged.” From the evidence on record coupled with the appellant’s conduct of leaving Livingstone the same day, we cannot fault the trial Judge for holding as she did. The trial Court, having rejected the appellant’s explanation, there could be no explanation to be considered. Therefore, this case can be J18 distinguished from the ELIAS KUNDA (2) case and the holding in that case is not applicable in this case. In the circumstances, we find no merit in the second ground of the appeal; it is, accordingly dismissed. The two grounds of the appeal having been dismissed, we find that the appeal against conviction on both counts lacks merit and is dismissed. RETIRED ………………………………………. F. N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE. ……………………………………….. M. E. Wanki, SUPREME COURT JUDGE. ………………………………………. F. M. Lengalenga, ACTING SUPREME COURT JUDGE. J19