Sichone and anor v The People (SCZ APPEAL NOS. 110 & 111 /1990) [1991] ZMSC 71 (5 February 1991)

IM THE SUPREME COURT OF ZAMBIA SCZ APPEAL NOS, 110 & 111 /1990 HOLDEM AT LUSAKA (Criminal Jurisdiction) • DAVID SICHONE ROBSON NGUPIRA -V- •>. THE PEOPLE " * . x • •< Appellant Respondent . CORAM: Ngulube, D. C. J,, Gardner. and Chaila JJ. S, 5th February 1991 ;; Messrs Martin Banda and Co./or the first appellant Mr. Mudenda, Legal Counselfor the second appellant Mr. 6. S. Phiri, Director of Public Prosecutions for the State Gardner. AJ. S.. delivered the judgment of the court. JUDGMENT The appellants were convicted of aggravated robbery whilst armed with a firearm. The particulars of the offence were that they, on the . 24th of July. 1987, at Siavonga, jointly and whilst acting together did steal K4.000 in cash the property of Mathew Chande and at the time of such stealing whilst armed with a firearm did use violence or threaten to use violence to the said Mathew Chande. The facts of the case were that PWs1 and 2 were staying with the second appellant, and, whilst they were staying withhim, they had an occasion to count the money that was with them. This money was placed L’ in a plastic bag, and, in the evening whilst they were talking to the second appellant, the door opened and a man in paramilitary uniform armed with a gun stood in the doorway. The prosecution witnesses said this man In the doorway made threatening gestures with the gun and the second appellant grabbed the bag with the money In it and ran out of the house. The man with the gun also left. Thereafter the prosecution witnesses, who had escaped through the window, were accused by the local villagers of causing alarm and were beaten by them. However, they managed to report to the police. The following day the police apprehended the second appellant, and, whilst he was being questioned, he said that at the time of the robbery he had been in the company of : J2 : the first appellant. The first appellant when Interviewed by the police said that he had received some money from the second appellant, and he had led the the police to where that money was hidden outside the paramilitary camp fence. This money amounted to KI,500.30 and was hidden under a concrete block. The first appellant was in fact a member of the paramilitary stationed at that camp. The first appellant gave an alibi for the time at which he was alleged to have taken part In the robbery. *nd the second appellant, whilst admitting that the first and second prosecution witnesses had stayed in his house at some time, said that on one evening they had asked him to accept some money . in the sum of K16.0Q0 for the purpose of buying rhinoceros horns, and, when he had refused to undertake such a venture, they asked him to look, after the money until the following morning and left the house. Thereafter he knew nothing until he was questioned by the police the following day. He denied that there had been any robbery with the help of an armed pollCeman. There was evidence from one of the police investigating officers that the first appellant admitted taking part In the robbery, but there was contradictory evidence from his fellow witnesses that the first appellant had done no more than to say that he had received some money from the second appellant. Mr. Banda on behalf of the first appellant argued that any confession made by the first appellant should not be admitted because the police prosecuting witnesses who were investigating the case had been Informed that the first appellant was one of the perpetrators of the aggravated robbery and therefore had reasonable grounds for suspec­ ting his guilt. They should therefore have administered a warn and caution. . \ / • Mr. Mudenda on behalf of the second appellant argued that the second appellant was entitled to be believed as to what had occurred whilst PW‘s 1 4 2 were staying with him. Nr. Phiri, the learned Director of Public Prosecutions maintained that there was no need for a warn and caution of the first appellant because the prosecution witnesses were doing no more than investigating the case. He maintained further that, because the first appellant was a paramilitary officer and because he had received money from the second appellant he must have been the man standing in the doorway at the time of the robbery. As to the second appellant, Mr. Phirl argued that the learned trial judge had a perfect right to accept the evidence : J3 ; A ' Of PW’S 1 & 2, . ■ During th* course of the trial the original charge of aggravated robbery was the subject of a purported amendment to enhance it to the offence of armed aggravated robberyi however, when the application for the amendment was made and allowed no fresh plea was taken from the ' appellants and no enquiry was made whether they wished to recall any witness for further cross-examination. Mr. Phlrl has very properly accepted, and we agree with him, that in the circumstances the amendment to the charge was ineffective and the convictions could not have been * for more than aggravated robbery. We wlll deal first with the evidence against the second appellant. This evidence consisted of-the identification by PW‘s 1 & 2. The appellant was already well known to one of those witnesses and he accepted that the two prosecution witnesses had been staying with him during the period In question. In deciding to accept their evidence the learned trial judge did not misdirect himself in any way, and the . evidence against the second appellant was overwhelming once the evidence of those two prosecution witnesses was properly accepted. For these reasons the appeal against the second appellant is dismissed. So far as the first appellant is concerned we accept that the only evidence against him was his admission to the police prosecution witnesses that.he had received money from the second appellant. As to whether the reply given to the prosecution witness was admissible we do not have to decide in this case. MSare satisfied that, even though . : the first appellant may have received money from the second appellant, ; and, even though as Hr. Phlrl says he was a well known paramilitary officer and could well have been the man who stood in the doorway at the time of the aggravated robbery, there was no more .than a very', strong suspicion against him. In the circumstances the evidence was not sufficient for any court to say beyond all reasonable doubt that the first appellant was guilty of aggravated robbery. For the reasons we have given the appeal ofthe first appellant Is allowed, his conviction is quashed and the sentence set aside. ■ r V ■ ' - We should make it clear that so far as the second appellant Is concerned the appeal against conviction for armed, aggravated, robbery is allowed and a conviction for aggravated robbery Is substituted; therefor* "fhe death sentence is set aside and we impose a sentence of fifteen years imprisonment with hard labour with effect.from the 21st ,July, N. M. S. W. NGULUBE DEPUTY CHIEF JUSTICE B. T. GARDNER AG. SUPREME COURT JUDGE H. S. CHAILA SUPREME COURT JUDGE '•'Ml -.-SM5.'