Philip Chinyama v People (Appeal 25 of 2015) [2019] ZMSC 296 (9 July 2019)

J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO.25/2013 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: PHILLIP CHINYAMA V THE PEOPLE Coram: Phiri, Hamaundu and Kaoma, JJS On 8th October, 2013 and 9th July, 2019 For the Appellants : Mr K. Muzenga, Principal Legal Aid Counsel For the State : Mrs C. L. Phiri, Senior State Advocate JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Attorney General v Kakoma (1975) ZR 212 2. Musongo v The People (1978) ZR 266 3. Abel Banda v The People (1986) ZR 105 4. Liswaniso v The People (1976) ZR 277 5. David Zulu v The People (1977) ZR 151 6. Mutale and Phiri v The People (1995/1997) ZR 227 The appellant appeals against his conviction by the High Court for the offence of murder. In the July High Court Sessions of 2002, the appellant, together with two other accused, stood charged before the court below with J 2 one count of murder. It was alleged that on 15th January, 2000, the three, together with other persons unknown, murdered a Chilanga farmer Mr Thomas Puffet. The prosecution presented the following evidence: On the fateful day, five young men entered the deceased’s farm, armed with two guns. They got hold of the guard, Ackson Shangwemu, (PW1), whom they ordered to lead them to the deceased’s house. The group was seen heading to the deceased’s house by the latter’s son Michael Allan Puffet, (PW4), who immediately alerted his mother, Jeane-Anne Puffet, (PW2), about the presence of the intruders. She, in turn, informed her husband, (the deceased). The group arrived at the house and ordered the deceased to open the door to the kitchen, which he did. They entered the house and got hold of the servant, John Mwiinga, (PW3), as well. They took the guard and the servant to one room where they kept them huddled together while the deceased was taken to another room and shot dead. The intruders fled the house, and the farm. In the meantime, the people on the farm had, by radio message, alerted neighbouring farms. The message was heard by the police at Balmoral Police Post. Detective Constable Aron Banda (PW6) and his colleagues responded to the distress call. They went to the farm and J 3 arrived, just in time to see five people fleeing the farm. They immediately gave chase. In the course of the chase, Detective Constable Banda shot one of the fleeing people in the leg. The person who was shot turned out to be the appellant. The appellant led the officers to where he had dropped the gun. An AK47 rifle with 19 rounds of ammunition was recovered. On being interviewed, the appellant gave the names and addresses of his colleagues. The officers then took the appellant to the University Teaching Hospital. They went back to the area and continued the search for the others. They found one of the appellant’s co-accused, Emmanuel Chitanda, hiding in the bush. They apprehended him. Based entirely on the information that the officers had obtained from the appellant, the third co-accused Fan well Hiyongo was later apprehended. At the farm house, some spent cartridges were found and picked. Meanwhile, during postmortem on the body of the deceased, a bullet was extracted therefrom. The AK47 rifle, the 19 rounds of ammunition, the spent cartridges and the bullet removed from the body of the deceased were taken for ballistic examination. It was found that the bullet that was lodged in the body of the deceased and the spent cartridges were not fired from the AK47 rifle that was recovered. J4 The appellant and four other suspects were arrested and charged for this offence. The prosecution discontinued the case against two of them. In the end it was only the appellant, Emmanuel Chitanda and Fan well Hiyongo who were tried for the offence. The appellant’s version was that he was apprehended by the police when he had gone to tend to his field in the area neighbouring the farm. He denied having been shot. He also denied having been part of the group that killed the deceased. Emmanuel Chitanda said that the police apprehended him when he had followed his uncle who had gone to buy charcoal in a bush near Linda compound. He denied having been in the group that killed the deceased. Fanwell Hiyongo denied being in the group of intruders that killed the deceased. He said that the police picked him from Soweto market almost two months after the incident. The court below acquitted Fanwell Hiyongo on the ground that the only evidence against him was the fact that the appellant had led the police to him. The court also acquitted Emmanuel Chitanda on the ground that the mere fact that he was found hiding in the bush was not enough evidence to link him to the murder of the deceased. J 5 The court, however, convicted the appellant mainly on the testimony of Detective Constable Aron Banda. In this case, the court accepted Constable Banda’s version that he shot the appellant; and rejected the appellant’s assertion that he was not shot. The appellant was sentenced to death. Before us the appellant has advanced only one ground of appeal; namely, that the court below erred when it convicted him on circumstantial evidence when there were other inferences that could be drawn. We must say at the outset that, although the State had, at the hearing, promised to file their heads of argument within seven days, we do not seem to have received them. Hence, we are dealing with this appeal with the benefit only of the appellant’s arguments. The appellant has deployed several arguments. One of the arguments is that the prosecution should have called for evidence under Section 294 of the Criminal Procedure Code to rebut the appellants assertion in his defence that he had not been shot. Having not done so, the appellant argues, the prosecution did not prove their assertion that the appellant was shot. We shall deal with this argument later. J 6 In another argument, the appellant challenges Detective Constable Banda’s statement that, upon being shot, the appellant led him to where he had dropped the gun. The appellant points out that, while Constable Banda said that he ran after the one who had a gun, at no point in his statement did he say that he saw that person drop the gun. Our view is this; when testimony is being recorded, not everything said is captured; and not everything recorded is placed in its proper context. It is therefore the trial court that has the advantage of hearing and seeing the witnesses that is better placed to know exactly what a witness said. It is for this reason that we have said in cases such as Attorney General v Kakoma11 and others that a court is entitled to make findings of fact, where the parties advance directly conflicting stories, based on the evidence before it and having seen and heard the witnesses giving that evidence; and that an appellate court will be slow to disturb findings made by trial courts. In this case, the court, having listened to the testimony of Detective Constable Banda, understood precisely what he had said and, therefore, accepted his testimony that the appellant led him to where he had dropped the gun. We have no reason to disturb that finding of fact. J7 The appellant then argues in the alternative that the evidence of leading should not have been accepted because it was obtained in breach of the judges rules, that is to say, without administering a warn and caution. He has cited cases on the subject, namely George Musongo v The People’2’ and Abel Banda v The People’3’. This argument flies in the teeth of the case of Liswaniso v The People’4’ where we held that evidence obtained illegally, or in breach of the judges rules, is admissible. Hence the argument is untenable. The appellant goes on to argue that there was not sufficient evidence adduced to show that the gun that was allegedly recovered had been at the scene of crime. He points out that this was because John Mwiinga’s (PW3) identification of the gun was very weak. He further argues that, in addition, the spent cartridges and the bullet that was recovered from the deceased’s body were not fired from the said gun. We shall address this argument later. Finally the appellant argues that this whole case hinged on circumstantial evidence; and that in view of the weaknesses that he has pointed out in the two arguments which we intend to deal with later, the circumstantial evidence did not reach the required standard stated in the case of David Zulu v The People’5’; and that J 8 there were always other possible inferences open. Pursuing this latter argument, the appellant reminded us of the case of Mutale and Phiri v The People161 where we held that, where two or more inferences are possible, the court will adopt the one which is more favourable to an accused; if there is nothing in the case to exclude such inference. At this point we return to the two earlier arguments that we have not addressed. First, contrary to the appellant’s contention, the prosecution did not need to adduce evidence to rebut his assertion in defence that he was not shot: Quite apart from the fact that the trial court, correctly, resolved that issue on credibility, and rejected the appellant’s story, the case itself did not turn on the issue. We shall explain the real incriminating issue shortly. There is also the argument that the spent cartridges that were recovered from the farm house and the bullet that was dislodged from the deceased’s body were not fired from the gun that was recovered; and that the gun itself was not sufficiently proved to have been at the scene of crime owing to the fact that the house servant, John Mwiinga, did not positively identify it. The court below properly resolved this issue by finding that there was another gun involved which was never recovered. We say again that the case did not turn on this issue either. J 9 Finally, we come to the argument that the evidence in this case was circumstantial. The evidence that really incriminated the appellant in this case was not the assertion that he was shot, or that he led Detective Constable Banda to the recovery of the gun. Rather, it is the assertion by Detective Constable Banda that he saw a group of people fleeing from the farm; and that he gave chase, following one of them, whom he never lost sight of, until he apprehended him; and that that person turned out to be the appellant. That is as good as catching someone red-handed, so to speak. And that is the evidence that this case really hinged on. It was never circumstantial at all. So, it is immaterial whether the appellant was shot or not: It is immaterial whether the gun he was alleged to have been holding was the one that fired the shots or not. The testimony of Detective constable Banda placed the appellant at the scene of crime. In the circumstances, we find no merit in the appeal. We dismiss it. SUPREME COURT JUDGE SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE