Daka v The People (SCZ Appeal 333 of 2013) [2014] ZMSC 28 (3 February 2014)

IN THE SUPREME COURT OF ZAMBIA 333/2013 HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ/APPEAL № BETWEEN: RICHARD DAKA AND THE PEOPLE Appellant Respondent CORAM: MUMBA, AG DCJ, LENGALENGA AND HAMAUNDU, AG. JJS On 3rd December, 2013 and 4th February, 2014 For the Appellant Senior : Miss G N Mukulwamutiyo, Assistant Legal Aid Counsel – Legal Aid Board For the Respondent : – Miss N T Mumba, Senior State Advocate National Prosecutions Authority J U D G M E N T LENGALENGA, AG. JS, delivered the Judgment of the Court. Cases referred to: 1. EMMANUEL PHIRI v THE PEOPLE (1982) ZR 77 2. BERNARD CHISHA v THE PEOPLE (1980) ZR 36 3. MWABONA v THE PEOPLE (1973) ZR 28 J2 4. JOSEPH MWAMBA v THE PEOPLE (2007) SCJ № 103 5. MACHIPISHA KOMBE v THE PEOPLE (2009) ZR 282 6. ZULU v THE PEOPLE (1973) ZR 326 7. DOROTHY MUTALE & ANOTHER v THE PEOPLE (1997) ZR 51 8. GOBA v THE PEOPLE (1966) ZR 113 9. PATRICK SAKALA v THE PEOPLE (1980) ZR 205 When we heard this appeal we sat with Honourable Mrs. Justice Mumba who has since retired. This judgment is therefore, a majority judgment. The appellant was convicted of defilement contrary to section 138(1) of the Penal Code Cap 87 as read with amendment Act № 15 of 2005 of the Laws of Zambia. The particulars of offence are that on 18th June, 2011 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, the appellant had unlawful carnal knowledge of a girl under the age of 16 years. He was sentenced to thirty (30) years imprisonment with hard labour with effect from 28th July, 2011, the date of arrest. He now appeals against conviction. J3 The prosecution case mainly rested on the evidence of four witnesses, namely, PW1, PW2, PW3 and PW5. The prosecution evidence is to the effect that on 18th June, 2011, PW1, Ireen Tembo’s five year old daughter went to play. When she returned she complained that she was not feeling well as she felt pain on her private parts. Upon checking her, PW1 noticed that she was swollen with a slippery liquid. When she was asked who had done that to her, she pointed in the direction of a house to which she later led her mother, PW1. At the house which was near PW1’s house, PW1 and her husband, PW2 knocked on the door but no-one opened the door. Thereafter, they went to the neighbor who advised them to go to the police. Before going to the police, they decided to go and knock and on the way they met someone who accompanied them. After knocking, the appellant opened the door and they told him why they were there. They also learnt that he lived alone. An argument arose and according to PW2, Joseph Tembo, the appellant started beating him and he even got a shovel with which he hit him until some people rescued him. The appellant was J4 apprehended and taken to the police station where PW2 and the child were issued with medical examination forms to take to the hospital. PW2’s medical examination report was for Chelstone Clinic whilst the child’s was for examination at the University Teaching Hospital. PW1 and PW2 identified the appellant as the person who defiled their daughter and also assaulted PW2. PW3, the prosecutrix gave sworn evidence after a voire dire was conducted and the trial court satisfied itself that she possessed sufficient intelligence to understand the nature of an oath. She testified that she was five years old and lived in Chelstone at an unknown address. Her brief testimony was that she was held by the appellant (Mr. Daka) who undressed her and touched her on her vagina, then he put something inside her and it was painful. She added that the appellant had also undressed and that this happened in his house. She pointed at him by way of identification. J5 Further, under cross-examination, she told the appellant that he was the one who defiled her and that he was alone when he held her and took her inside his house. She said that while in his house, he did not ask her anything but just undressed her and held her on her vagina. PW4, Detective Sergeant Kizzy Chungu Siame of Chelstone Police Station confirmed receiving two dockets on 19th June, 2011. He stated that one was for defilement while the other was for assault. He also testified that the victim was only five (5) years old and he noticed that she was traumatized and he proceeded to interview her mother and father. This witness had testified that the appellant had freely and voluntarily denied the charges under warn and caution, he identified the appellant in the trial court. PW5, Dr. Jonathan Kaunda Mwansa, a Pediatrician working at the University Teaching Hospital as a Senior Registrar conducted a medical examination on the child. The medical examination revealed that her hymen was torn J6 thereby confirming that she was defiled. He also conducted medical tests for sexually transmitted diseases such as HIV, hepatitis, syphilis and gonorrhea. The results were negative and even when the child went back for review they were all negative. He reduced his medical findings into writing on the medical examination report (exhibits “P1” and “P2”) which he signed and date stamped on exit, on 15th July, 2011. As earlier stated, according to the evidence on record, under warn and caution at the police station, the appellant denied the charge, and during this defence in court, he gave sworn testimony and called his wife, DW2 and DW3, his daughter who also gave sworn testimonies. When considering the evidence, the trial Court observed that with regard to corroboration of the identity of the offender, there was no direct evidence of the same but there was strong circumstantial evidence connecting the accused to the alleged offence. She also noted that the J7 accused testified of dates not connected to the case despite being reminded of the dates by the court before opening his defence. The learned trial magistrate found that the child was defiled as the medical report confirmed the same. Upon evaluating the evidence she was satisfied that on 18th June, 2011 the appellant had carnal knowledge of the victim and prosecutrix, PW3. She found him guilty and convicted him accordingly. The appellant filed three grounds of appeal which read as follows: 1. The learned trial Court erred in law and in fact in convicting the appellant in the absence of corroborative evidence or evidence of something more to exclude the danger of false complaint and false implication. 2. The learned trial Court misdirected itself in convicting the appellant on the basis of circumstantial evidence which is not sufficient enough to warrant only an inference of guilt. 3. The learned trial Court erred in law and in fact in receiving the evidence of a child on oath after a defective voire dire and ruling. J8 The grounds are supported by heads of arguments. In support of the first ground of appeal, Miss Mukulwamutiyo submitted that the only evidence that the appellant defiled the prosecutrix is that of PW3, a child of tender age as well as that of her mother and father. She added that there was no other independent evidence. She referred us to the case of EMMANUEL PHIRI v THE PEOPLE 1 in which this Court held inter alia: “In a sexual offence there must be corroboration of both commission of the offence and the identity of the offender in order to eliminate the dangers of false complaint and false implication. Failure by the court to do so is a misdirection.” She further relied on the case of BERNARD CHISHA v THE PEOPLE 2 in which we observed that a child due to immaturity of mind is susceptible to the influence by third persons and as such their evidence requires to be corroborated. Learned Counsel for the appellant argued that PW1 and PW2’s evidence cannot be relied on as they fall within the category of persons who may influence a child, in this case PW3. J9 She submitted that they are, therefore, suspect witnesses whose evidence cannot be relied upon as a basis for a conviction. She referred us to MWAMBONA v THE PEOPLE 3 . Miss Mukulwamutiyo further distinguished the case of JOSEPH MWAMBA v THE PEOPLE 4 cited by the trial court at page 74 of the record from this case. She submitted that in that case the accused was alone in the bush with the grandmother whereas in this case there was no reliable evidence to the effect that the appellant was alone with the prosecutrix on the material date. She submitted that, therefore, on the authority of MACHIPISHA KOMBE v THE PEOPLE 5 , it was their contention that there was nothing to warrant “something more” and there was no odd coincidence or unexplained circumstances in this case. Learned Counsel for the appellant contended further that the circumstantial evidence that the trial court referred to and placed reliance on falls far short of the requirement in ZULU v THE PEOPLE 6 . J10 She argued that it is possible that PW3 accused the appellant of the offence after she was beaten by her parents as shown at page 38 of the record. Miss Mukulwamutiyo further submitted that the dangers of false complaint and false implication were not excluded and they prayed that this ground of appeal be allowed and that the conviction be quashed and the sentence be set aside. With regard to the second ground of appeal, learned Counsel for the appellant argued that there is no strong circumstantial evidence connecting the appellant to the alleged offence as stated by the court below. She submitted that the trial court arrived at a number of conclusions that are not supported by evidence on record and she made particular reference to the learned trial magistrate’s comments at page 73 of the record where she stated: “It is, therefore, clear that the child who referred to accused as Mr. Daka knew accused very well so did accused and the accused had opportunity to meet the child.” J11 She pointed out to the court that the prosecutrix did not testify to the effect that she knew the accused very well. She further contended that there is no evidence on record that the appellant had the opportunity to commit the offence. Learned Counsel for the appellant also submitted that the learned trial court did not address its mind to the other circumstances presented by the defence evidence such as his defence or alibi that he was home with four of his children on that material day. Miss Mukulwamutiyo argued that there is nothing on record to exclude an inference favourable to the appellant and she relied on the case of DOROTHY MUTALE & ANOTHER v THE PEOPLE 7 in which this Court held: “Where two or more inferences are possible, it has always been a cardinal principle of the criminal law that the court will adopt the one which is more favourable to an accused if there is nothing to exclude such inference.” In this case, Counsel for the appellant prayed that the second ground be allowed and that the conviction be quashed. J12 In support of the third ground of appeal, that the voire dire was defective and that the trial court ought not to have received the child’s evidence on oath, she argued that reliance was made on the repealed provision of the Juveniles Act, Cap. 53 of the Laws of Zambia. She submitted that although the offence was allegedly committed on 18th June, 2011, after the enactment of the Juveniles (Amendment) Act, 2011, the learned trial court did not address itself to section 122 which replaced the repealed provision. It was further contended that it was evident that the prosecutrix did not possess sufficient intelligence to justify the reception of her evidence on oath. It was submitted that, therefore, the evidence by PW3 should be discounted because it was defective. Appellant’s Counsel fortified her argument by reliance on the Court of Appeal’s holding in the case of GOBA v THE PEOPLE 8 where it observed that “when no proper voire dire is carried out the evidence of the witness should be discounted entirely.” J13 In conclusion, she submitted that this is not a proper case for re-trial as there is no corroborative evidence or evidence of something more. She prayed that the appeal be allowed on this ground and that the appellant be released. Learned Senior State Advocate, Miss N T Mumba made oral submissions in response to the appellant’s grounds of appeal. In response to the first ground of appeal she argued that there was sufficient corroboration on record and she drew our attention to the case of MACHIPISHA KOMBE v THE PEOPLE. She submitted that there was corroboration in opportunity and lack of motive to falsely implicate the appellant. She submitted further that the appellant tried to approach the prosecutrix family to settle the matter and that that is “something more.” On the issue of lack of motive to falsely implicate the appellant, Miss Mumba’s contention was that there is evidence that the prosecutrix informed her mother at the first opportunity when she returned home that she felt pain in her private parts. J14 As for opportunity, she submitted that it was there as the appellant’s house and the prosecutrix home were about 100 metres apart, with houses in between but the young prosecutrix was able to lead her parents to the appellant’s house. In response to the second ground of appeal, Counsel submitted that the circumstantial evidence was sufficient to put the case out of the realm of conjecture. Further, in response to the third ground of appeal, Miss Mumba submitted that the voire dire was not defective as alleged. She stated that from perusal of the record, particularly page 11 and the ruling of the trial court, starting at line 11, it is clear that the trial court addressed itself to the amendment by stating: “Having examined the child, I am satisfied that she does possess sufficient intelligence hence, she will give sworn testimony.” Miss Mumba submitted that therefore, the trial court was also alive to the need for the child to understand the importance of J15 speaking the truth. Learned Counsel for the respondent’s contention is that the learned trial court was on firm ground when it ruled that the child possessed sufficient intelligence. She submitted that therefore, the voire dire was not defective even if the trial court did not specifically state that the child understood the importance of telling the truth. She prayed that the court dismisses the appeal. We have considered the submissions by both learned Counsel and have perused the record of proceedings. The gist of the submission in support of the first ground of appeal is that in the absence of corroborative evidence or evidence of something more to exclude the danger of false complaint and false implication, the conviction cannot stand. On the commission of the offence, the medical report produced as exhibit “P1” by the prosecution corroborated the evidence of defilement of the prosecutrix, PW3. J16 As regards the identity of the perpetrator of the offence, the learned trial magistrate observed that there was no direct evidence of corroboration. In fact from the record, we found no corroboration of the child’s evidence to that effect. Miss N T Mumba strongly argued that there was corroboration in opportunity by the appellant and lack of motive to falsely implicate on the part of PW3. However, learned Counsel for the appellant had presented the possibility of the child having pointed at appellant because she was beaten by her parents. We are not persuaded that there is evidence of something more to exclude the danger of false complaint and false implication as suggested by Counsel for the respondent. Whilst we accept that there could have been opportunity for the appellant to defile PW3, we are also mindful of the possibility of her having been defiled by someone else. Our reasoning is based on the fact that the prosecutrix’ parents house and the appelant’s house were about 100 metres apart, with houses in between. Hence, another person could have defiled her. As we stated in DOROTHY MUTALE & ANOTHER v THE PEOPLE, which learned Counsel for the appellant cited, where two or more inferences are possible, the court will adopt J17 one which is more favourable to the accused, if there is nothing to exclude such inference. We, accordingly, allow the first ground of appeal. Incidentally, the second ground of appeal that the learned trial court misdirected itself in convicting the appellant on the basis of circumstantial evidence which is not sufficient enough to warrant only an inference of guilt, appears to have been covered by our finding on the first ground of appeal. We accept the arguments by Miss Mukulwamutiyo that the circumstantial evidence was weak even though the trial court arrived at a number of conclusions that are not supported by evidence. For instance, the suggestion that the child’s reference to the appellant as Mr. Daka indicated that she knew him very well. In PATRICK SAKALA v THE PEOPLE 9 , this Court on the acceptance of circumstantial evidence held: “The circumstantial evidence was so cogent and compelling J18 that no rational hypothesis other than murder could the facts in this case be accounted for:” Simply stated this means that the circumstantial evidence has to be so overwhelming that no other inferences can be drawn from the evidence. Unfortunately, the same cannot be said about the evidence in this case. There are lingering doubts that must be resolved in the appellant’s favour. Hence, the second ground of appeal succeeds. Finally, we turn to the third ground of appeal that the learned trial court erred in law and in fact in receiving the evidence of a child on oath after a defective voire dire and ruling. As we stated in ZULU v THE PEOPLE the correct procedure on conducting a voire dire is found in section 122 of the Juveniles Act. The said section 122 having been repealed and replaced by a new provision, it follows that this new provision of the Juveniles (Amendment) Act 2011 is now applicable and it provides: J19 “122. Where, in any criminal or civil proceedings against any person, a child below the age of fourteen is called as a witness, the court shall receive the evidence, on oath, of the child if, in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the child’s evidence, on oath, and understands the duty of speaking the truth: Provided that – (a) If, in the opinion of the court, the child is not possessed of sufficient intelligence to justify the reception of the child’s evidence, on oath, and does not understand the duty of speaking the truth, the court shall not receive the evidence; and” In the instant case, the voire dire in contention is found at pages 10 and 11 of the record of proceedings. The court concluded that the child possessed sufficient intelligence to give evidence on oath but it did not specifically state that the child understood the importance of telling the truth. Therefore, from the requirements of the law under section 122 of the Juveniles (Amendment) Act, 2011, we are satisfied that the voire dire was defective. We, therefore, allow this third ground of appeal. J20 In conclusion, the appellant having succeeded on all three grounds of appeal, the total effect is that the entire appeal succeeds. The conviction is quashed and the sentence set aside. …………………………………………….. F. M. Lengalenga ACTING SUPREME COURT JUDGE ……………………………………………. E. M. Hamaundu ACTING SUPREME COURT JUDGE