Silungwe and Anor v People (Appeal 154 of 2020) [2022] ZMCA 65 (25 July 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) Appeal No. 154, 155 /2020 BETWEEN: JOSHUA SILUNGWE MATHEWS JUSTINE CHANDA AND THE PEOPLE 1st APPELLANT 2nd APPELLANT CORAM: Mchenga DJP, Majula and Muzenga JJA On 18th May, 2021 and 25th July, 2022. For the Appellant: Mrs. L. Z. Musonda, Lega! Aid Counsel; Legal Aid Board For the Respondent: Mr. M. Libuku, Senior State Advocate, National Prosecution Autnority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Mwansa Mushala And Others v The People (1978) ZR 58 2. Chimbini v The People (1973) ZR 191 3. Muvuma Kambanja Situna v The People (1982) ZR 115 4. R v Turnbull (1977) QB 244 5. Benson Phiri and Sanny Mwanza v The People (2012) ZR .2 6. Bwalya v The People (1979) ZR 1 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia, 1 .0 INTRODUCTION 1.1 The appellants were charged with one count of the offence of aggravated robbery contrary to Section 294(2) of the Penal Code1. The particulars of offence alleged that the appellants on 1st November, 2018 at Chinsali District of the Muchinga Province of the Republic of Zambia, jointly and whilst armed with unknown firearm, did steal one laptop bag, and K100.00 cash altogether valued at K250.00 the property of Chanda Chewe, and that at or immediately before or immediately after such stealing, did use or threaten to use actual violence to Chanda Chewe in order to retain, or prevent or overcome resistance to it being stolen or retained. 1.2 They were subsequently convicted and were each sentenced to death by the High Court (before Hon. Mr. Justice K. Limbani). 2 .0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 The appellants' conviction was secured by the evidence of five witnesses. A summary of the evidence of PW1 was that in the early J3 hours of 1st November, 2018, he was awakened by sounds of an opening door. He woke up and tried to close it only to notice the door was being pushed open by some people. With the aid of a solar energy bulb in his house, he was able to see three intruders. The said men approached him and asked for money. He told them that he did not have any money. One of the intruders picked up a stool with an intention of hitting PW1. A scuffle ensued, and PW1 was hit by the legs and fell down. One of the intruders stepped on his head while the other went around the house in search for money. The third attacker stood quietly by the corridor. It was his further testimony that the intruder who went around the house, got a laptop bag and a Hundred Kwacha (ZMW100.00). PW1 told the trial court that the intruders left soon after and on their way fired a gun. The matter was later reported to the police and an empty cartridge was picked about 300 metres from the house. PW1 identified the 1st appellant as he was their regular customer for cooking oil. 2.2 In cross-examination, PW1 stated that he was able to see the intruders with the help of the light in his house. 2.3 The second prosecution witness was Memory Mulenga, the wife to PW1. In her testimony, she recounted how the intruders entered their house on the fateful day. In her testimony, she told the trial J4 court that the intruders pointed a gun at PW1 and asked him to bring the money while the other stepped on his head as he laid down on the sitting room floor. She told the court that one of the intruders who was short in heig ht entered their bedroom and started searching for money after which he went away with a computer bag, It was her testimony that she managed to escape through the kitchen door and went to call for help from a police officer from a nearby yard. She told the court that on their way to her house they heard a gunshot. She also told the court that she was able to see the intruders with the help of the solar light in their house. 2.4 The matter was reported to the police the following day and a cartridge was recovered. At an identification parade she identified and in court the intruders as the 1st and 2nd appellants. She told the court that she knew them as they had been going to her house to buy cooking oil. 2.5 In cross-examination; she told the trial court that she was in the house for about 4 minutes before she escaped through the kitchen door. 2.6 PW3 was Assistant Superintendent Lameck Nyendwa. He led evidence with respect to how the identification parade was conducted. He stated that the 1st appellant was identified by PW1 J5 and PW2. The Scenes and Crime Officer, Detective Constable Peter Kazembe, testified as PW4. His evidence was similar to that of PW3 save for the fact that he took photos of the identification parade told the trial court that PW2 identified the 2nd appellant at another parade. 2.7 The last prosecution witness was the arresting officer, Detective Chief Inspector Peter Mwenya. He told the trial court that on 1st November, 2018, he received a report of aggravated robbery from PW1. Investigations were instituted and a check at the scene led to the recovery of an empty cartridge. He also recovered a computer bag a few kilometres from the scene. It was his further evidence that he got information which led to the apprehension of the appellants who were later positively identified by PW1 and PW2. He told the trial court that the weapon which discharged the bullet was not recovered. 3 .0 THE DEFENCE 3.1 In his defence, the first appellant Joshua Silungwe told the trial court that while serving a sentence at open air prison in Chinsali he used to buy groceries such as cooking oil, and soap from PWl's house. After his release, he started running a bar for his elder brother who used to pick him up when he knocked off at 23:00 hours. J6 3.2 In his further testimony, he told the court that on 31st October, 2018 he knocked off at 23:00 hours and went home with his brother. He slept at mid night after having a meal. The following morning, he went on with his usual work schedule. He was later apprehended on 6th November, 2018 after his house was searched on suspicion that he had a firearm and matchet that were used during the attack on PW1. 3.3 In cross-examination, DW1 stated that he never differed with PW1 and PW2. 3.4 In his defence, Mathews Justine Chanda, the second appellant told the trial court that on 27th October, 2018 he went to Chama District to sale fish and he was there up to 16U1 November, 2018. It was his testimony that on his return home, he was apprehended on allegations of theft. While in police custody he was informed that he was also suspected of having committed aggravated robbery. 3.5 In cross-examination, the 2 d appellant stated that he was once at Chinsali Open Air Prison with the Is- appellant and that he was released in August 2018. Further he told the trial court that after being released, he never went back to PW1 and PW2's house and that he had been falsely implicated. He maintained that during the time of the incidence, he was in Chama District. J7 3.6 A summary of the evidence of DW3, Danny Silungwe, a brother to the 1st appellant, was to the effect that on 31st October, 2018 he was with the 1st appellant. He took him home at around 23:00 hours where they had a meal and he left. He told the court that he was surprised to later hear that the first appellant had been arrested on allegation of aggravated robbery. 3.7 Under cross-examination, he stated that he left the first appellant sleeping at his house on the fateful night. 4,0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 The trial court considered the evidence and written submissions presented before it by both parties. The trial court found that indeed the complainants were on 1st November, 2018 attacked and robbed of a computer bag and one hundred Kwacha (K100.00) cash by three attackers who were armed with a firearm. The trial court also found that the appellants were positively identified by the complainants and that their alibi was raised at a late stage in their defence. The trial court found that the recovered discharged bullet clearly shows that a firearm was used. 4.2 The court below concluded that there was overwhelming evidence implicating the appellants. The trial court stated that the prosecution had discharged their burden of proof and that there was J8 no doubt that the appellants were thp ones who robbed the complainants. Accordingly; the appellants were convicted of the offence of aggravated robbery and a sentence of death was imposed on each of them. 5 .0 GROUNDS OF APPEAL 5.1 Disconsolate with the conviction, the appellants filed one ground of appeal as follows - (1) The learned trial judge erred in Jaw and in fact when he convicted the Appellants pn the evidence of recognition of PW1 and PW2 when the circumstances of the purported recognition were not conducive. 6 .0 APPELLANTS' ARGUMENTS 6.1 In support of the sole ground of appeal, the learned counsel for the appellant submitted that the court below relied on the identification evidence of PW1 and PW2 which was not sufficient. It was pointed out that the circumstances under which the alleged recognition happened were not conducive to rule out the possibility of honest mistake. It was counsel's contention that from the evidence of PW1, it is just logical that it was impossible for PW1 to have recognized the 1st appellant in a state of confusion whilst lying on the ground from the corridor which was outside the house. It was submitted that the observation by PW1 of the 1st appellant was not reliable and the possibility of there been an honest mistake was not excluded. Counsel contended that poor observation could be the only reason why PW1 could not give a proper description of the assailant he claimed to have recognized. 6.2 It was further contended that whilst it was the evidence of PW2 that she observed and recognized the appellants, PW1 testified that PW2 was in the bedroom the entire time that the assailants were attacking him. That PW1 told the trial court that PW2 was not able to see what was happening in the sitting room from the bedroom. Counsel submitted that PW2 confirmed that there was confusion on the material night at the point of the attack. 6.3 It was counsel's submission that from the evidence of PW2 on the record of proceedings, it is clear that PW2 who was in a state of confusion at the material time had little or no opportunity to observe and recognize the assailants and as such it can safely be concluded that a possibility of honest mistake was not ruled out. It was submitted that the poor or no opportunity for observation at all could be the reason PW2 did not give the police officers a description of the assailants she claimed to know prior by pointing out special features. According to counsel, the evidence of PW2 regarding the Jto identification of the appellants was merely an afterthought and concocted to link the appellants to the offence. 6.4 Counsel further submitted that given the circumstances of this case, the evidence of recognition alone without any connecting link such as fingerprints or recoveries is not adequate to support such a conviction for the subject offence. We were referred to the case of Mwansa Mushala And Others v The People1 where it was stated as follows: "Although recognition may be more reliable than identification of a stranger, even when the witness is purporting to recognize someone whom he knows, the trial judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made, and of the need to exclude the possibility of honest mistake; the poorer the opportunity for observation the greater the possibility becomes. The momentary glance at the inmates of a fiat car when the car was in motion cannot be described as good opportunity for observation." 6.5 In summing up her arguments, Mrs. Musonda referred us to the case of Chimbini v The People2 which was cited with approval in the case of Muvuma Kambanja Situna v The People3, it was stated as follows: ni . where the evidence in question relates to identification there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a single witness with particular care. The honesty of the witness is not sufficient; the court must be satisfied that he is reliable in observation. Many factors must be considered, such as whether it was day-time or night-time and, if the latter, the state of the light, the opportunity of the witness to observe the appellant, the circumstances in which the observation was alleged to have been made (i.e., whether there was a confused fight or scuffle or whether the parties were comparatively stationary." 6.6 We were urged to allow the appeals, set aside the conviction and sentence and set the appellants to liberty. 7 .0 RESPONDENTS ARGUMENTS 7.1 On behalf of the state, the learned state advocate, supported the conviction and sentences. In responding to the ground of appeal, it was contended that the trial judge was on firm ground in law and fact when he convicted the appellants on the evidence of recognitions as the circumstances of recognition were conducive. Counsel contended that it is dear from the record that the appellants were not linked to the commission of the offence simply because they were former convicts, but that there was a thorough investigation. Besides PW1 knew one of the attackers. J12 7.2 It was counsel's further contention that victims had an opportunity to recognise the appellants as they knew them well before the incidence. We were referred to an English case of R v Turnbull4 in which the following factors to be taken into consideration when dealing with an identification parade were enumerated. (a) The amount of time the suspect was under observation by the witness, (b) Distance between suspects and witness, (c) Visibility at the time the witness saw the suspects, (d) Obstructions between suspects and witness, (e) Knows suspect o has seen him/her before, (f) Any particular reason for the witness to remember the suspect, (g) Time lapse since witness saw suspect, (h) Error or material discrepancy in the description given by witness. 7.3 It was counsel's submission that the appellants were properly observed and recognized by the two prosecution witnesses, after a reasonable amount of time, and that the observation was not by a fleeting glimpse and that a time frame of 4 to 10 minutes is sufficient । and enough time to recognise a person previously known to him or her. 7.4 Further, counsel submitted that the appellants were properly identified at a properly conducted identification parade. We were J13 referred to the case of Benson Phiri and Sanny Mwanza v The People5 where the Supreme Court held that: "The testimony of a single witness who knew the accused prior to the incident at issue is adequate to support conviction." 7.5 We are urged to dismiss the appeal and uphold the lower court's decision. 8 .0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellants Mrs. Musonda and learned counsel for the respondent Mr. Libuku placed full reliance on their respective arguments. We are grateful for their submissions. 9 .0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by both parties and the Judgment of the trial court. 9.2 The thrust of the appellants' argument is that the identification evidence was weak and thus the possibility or dangers of an honest and yet mistaken identification (recognition) was not ruled out. 9.3 The prosecution evidence is anchored on identification evidence. In respect of the 1st appellant, identification by PW1 and PW2 whereas for the 2nd appellant evidence of a single identifying witness. J14 9.4 It is trite that evidence of a single identifying witness must be critically examined before a court can feel safe to rely on it to convict. In some cases where you have a single identifying witness, a conviction may not be safe unless there is supporting evidence or what may be referred to as a connecting link. The Supreme Court in the case of Bwalya v The People6 held that: "Usually in the case of an identification by a single witness the possibility of honest mistake cannot be ruled out unless there is some connecting link between the accused and the offence which would render a mistaken identification too much of a coincidence, or evidence such as distinctive features or an accurately fitting description on which a court might properly decide that it is safe to rely on the identification/' 9.5 We note that this case does not deal with identification of total strangers. According to the two identifying witnesses, the appellants were customers at their shop during the time they were incarcerated at the open air prison in Chinsali. It is trite that though recognition evidence is more reliable than identification of a total stranger, caution must still be taken as cases of mistaken recognition of close relatives and friends have been known to occur (See the case of Mwansa Mushala supra}. J15 9.6 The trial court in its judgment rightly considered the possibility of an honest mistaken identification and ruled it out. In relation to the 1st appellant, the trial court considered that there was lighting in the room, and the fact that he was previously known by the identifying witness. Further, PW1 was with him in the living room and observed him for 10 minutes and also that PW2 observed him for about 4 minutes. The trial court also considered the fact that this was not evidence of a single recognising witness. The trial court went further to find that the witnesses had sufficient time to observe the attackers and the identification was proper. 9.7 We are of the considered view that the trial court took a correct view of the evidence before it and we find no reason to interfere with the findings. We are satisfied therefore that 1st appellant's recognition was sound. 9.8 With respect to the 2nd appellant, the trial court considered that he was identified by a single witness. The trial court satisfied itself that the recognition of the 2nd appellant was reliable as the identifying witness gave accurate descriptive features that he was short, brownish in complexion with a pointed forehead. The trial court equally considered that this was a person previously known to the identifying witness who observed him for 4 minutes. We cannot J16 thus fault the trial court in finding that the danger of an honest but mistaken recognition had been ruled out. This is more so because PW2, the witness who identified the 2P0 appellant, was not directly under attack by the assailants. It was her husband, PW1, who was under physical attack, while PW2 observed at a vantage point and escaped unnoticed through the kitchen door. We hold that her observation was reliable and she recognised both appellants. 9.9 We have no doubt in our minds that the appellants were part of the gang that attacked and robbed PW1. 9.10 We note that the appellants were charged with armed aggravated robbery. The particulars alleged that they did so whilst armed with an unknown firearm. The facts in this case are that at the time of the robber/, PW1 was threatened with a stool which they got from within the house. After which they got a laptop bag, a K100.00 and left. On their way out, they fired a gun. A spent cartridge was picked about 300 metres from PWl's house. 9.11 In order for armed aggravated robbery to stand, a firearm must be used. In terms of Section 294 of the Penal Code, the firearm must be used at or immediately before or immediately after the time of stealing in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. J17 9.12 It is clear therefore that PW1 was never threatened with a firearm immediately before or during the robbery. He in fact did not see any firearm. It is much more straight forward where the robbers brandish, show or threaten the victims of the robbery with a firearm. What remains to be considered is whether the discharge of the firearm when the robbers left would be said to have been in order to retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. 9.13 There is no evidence on the record to the effect that PW1 pursued his assailants after they left his home. He remained in the house until the wife, PW2 returned. In the absence of this evidence, we are disinclined to hold that the discharge of the firearm was in order to retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. 9.14 We hold the view that discharge of the firearm by the robbers in the circumstances of this case would not justify a conviction for armed aggravated robbery. Had the learned trial judge taken a proper view of the evidence, he would not have convicted the appellants of armed aggravated robbery. 9.15 We thus quash the conviction for "armed" aggravated robbery and consequently the death sentence is set aside. In its place, we convict each of them for "ordinary" aggravated robbery contrary to Section 294(1) of the Penal Code. We have considered the circumstances of the case and the value of the items stolen. We find a sentence of 15 years imprisonment with hard labour with effect from the date of arrest to be more appropriate. C. F. R/MCHENGA //J DEPUTY JUDGE PRESIDENT B. M. MAJULA K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE