Kalambatila v The People (169 of 2015) [2019] ZMSC 123 (13 August 2019)

J 1 Selected Judgment No.23 of 2019 P.758 IN THE SUPREME COURT OF ZAMBIA APPEAL N0.169/2015 HOLDEN AT LUSAKA (Criminal Jurisdiction) APPELLANT THE PEOPLE RESPONDENT Coram: Phiri, Hamaundu and Wood, JJS On 2nd February, 2016 and 13th August, 2019 For the Appellants For the State Mr H. M. Mulunda, Messrs L. M. Chambers Mr C. Baka, National Prosecutions Authority JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Boniface Chanda Chola & 2 others v The People (1998/ 1989) ZR 163 2. Yokonia Mwale v The People, SCZ appeal No. 285/2014 3. Malawo v Bulk Carriers of Zambia Limited (1978) ZR 185 4. Mushemi v The People (1982) ZR 71 5. Imusho v The People (1972) ZR 77 The appellant appeals against his conviction by the High Court of the offence of murder. This is one of those rare cases where there are two contesting versions of evidence within the prosecution's J 2 P.759 case. In this case, the evidence of civilian witnesses was pitted against that of police officers. The undisputed facts, however, were these: The appellant was at the material time a police officer holding the rank of Detective Sergeant and based at Benny Mwiinga Police Post, at the PHI residential area. Between the night of the 24th March, 2012 and the morning of the 25th March, 2012, there was a break-in at the house of one Peter Chilwana within the PHI residential area. A number of items were taken, including a laptop computer. Peter Chilwana went to Benny Mwiinga Police Post where he reported the burglary. Then, he enlisted the help of a friend of his, a police officer named Lewis Bumelo, who was based at another station named "Le Solei". Together, they went after the deceased, Boniface Mukupa, whom Peter Chilwana suspected to be among the people who had broken into his house and stolen the items. They picked up the deceased and took him to Benny Mwiinga Police Post for questioning. At that stage the appellant took over the investigations. While the appellant was interrogating the deceased, around 12:00 hours, the latter went into convulsions, fell to the floor and died. The deceased was taken to the University Teaching J 3 P.760 Hospital where he was confirmed dead. When word went round that a suspect had died while in the custody of the police, a crowd in neighbouring Mtendere township was incensed. The crowd gathered, went to Peter Chilwana's house and stoned it. Peter Chilwana and his family fled the house. They were placed under police protection. The matter then seemed to have died, but behind the scenes it was very alive. About four months later, the matter was taken over by the Lusaka Division's Police Headquarters. A police officer from a different station, Detective Inspector Josephat Phiri, was assigned to investigate the death of the deceased. At the end of the investigation, the appellant was charged with the murder of the deceased. Also, mainly because of insinuations in the statements of the police officers, namely that Peter Chilwana and a group of people had assaulted the deceased before he was taken to Benny Mwiinga Police Station, Peter Chilwana was also charged with the murder of the deceased. The State, however, subsequently entered a nolle prosequi against him. As we have said, the prosecution's version of the events in the court below was divided between the civilian and police witnesses. J4 P.761 The civilian witnesses, namely, Rabecca Chita (PWl), Kelvin Desaa (PW2) and Patrick Ngoma (PW4) gave detailed accounts of how they saw the appellant beating the deceased with a short button to the body and the head; and how the deceased, shortly thereafter, collapsed and died in their presence. On the other hand, the police witnesses namely Constable Imataa (PWS), Sergeant Bumelo, (PW6), Inspector Mubanga (PW7), Detective Inspector Choompo (PW8) and Detective Inspector Josephat Phiri (PW9) all said that their colleague did not assault the deceased. Instead they, in their respective versions, presented the story that the deceased was beaten by a mob before he was taken to the police station; and also that he was probably an epileptic patient at the material time. In his defence the appellant adopted the line of defence which the police witnesses had presented. Resolving that conflicting evidence, the learned judge rejected the contention that the deceased was beaten by a mob before he was taken to the police station because none of the witnesses who were putting forward that contention had actually seen the deceased being beaten. In rejecting the contention, the learned judge also relied on the testimony of a civilian witness, Charles J 5 P.762 Mtonga (PWl 1), who said that between 04:00 and 04:30 hours he was in the company of the deceased and a police officer; and that during that time the deceased appeared to be alright. As for the story of the civilian witnesses, the learned judge acknowledged that they could possibly be biased on account that they knew the deceased or had been detained in cells as well. The judge however considered, particularly, the testimony of PWl and noted that she had said in court that she could not identify the police officer whom she had seen assaulting the deceased because she had only seen him once. The judge pointed out that, had this witness set out to falsely implicate the appellant, she could have simply pointed at him in the dock since he was the only person there. He, therefore, accepted her testimony. To the extent that the testimonies of PW2 and PW4 were consistent with that of PWl, the learned judge accepted them as well. Concluding his assessment of the evidence, the learned judge observed that the police witnesses' version was clearly intended to save their colleague; and, therefore, lacked credibility. J 6 P.763 The court, therefore, found that the appellant hit the deceased on the head with a short button as narrated by the civilian witnesses: and that this fractured the deceased's head, thereby causing his death. The appellant was convicted of murder and sentenced to death. Hence this appeal. The appellant advanced the following four grounds of appeal: 1. That the learned trial judge erred in law and in fact when he convicted the appellant of murder on the evidence of witnesses with a possible bias or interest of their own to serve 2. That the learned trial judge erred in law and in fact when he disregarded or disbelieved the evidence of PWS, PW6, PW7, PWS and PWlO because in his view they were trying to protect a colleague, that is, the appellant. 3. That the learned trial judge erred in law and in fact when he found that a baton was used to hit the deceased on the head in line with the pathologists' opinion that the injury he observed could have been occasioned by someone being hit with a stick on the back of the head. 4. That the learned trial judge erred in law and in fact when he found that the appellant had malice aforethought because he either intended to cause grievous bodily harm or knew that hitting the deceased on his head with a baton was likely to cause death or grievous bodily harm. The four grounds of appeal raise four different issues. We shall deal with them separately. J 7 P.764 The appellant's first ground of appeal is anchored on our holding in Boniface Chanda Chola & 2 others v The people1 11 which states: "In the case where the witnesses are not necessarily accomplices, the critical consideration is not whether the witnesses did in fact have interests or purposes of their own to serve, but whether they were witnesses who, because of the category into which they fell or because of the particular circumstances of the case, may have had a motive to give false evidence. Where it is reasonable to recognize this possibility, the danger of false implication is present and it must be excluded before a conviction can be held to be safe. Once this is a reasonable possibility, the evidence falls to be approached on the same footing as for accomplices". Mr Mulunda, learned counsel for the appellant, faulted the learned judge in the court below for accepting the testimony of the civilian witnesses notwithstanding that he had noted the possible bias that was attendant to their evidence. According to counsel, no amount of warning on the part of the court would render a conviction safe in those circumstances. J 8 P.765 The respondent opposed this argument on the strength of what we said recently in the case of Yokonia Mwale v The People121 . The particular passage relied on by the respondent states: "A conviction will thus be safe if it is based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or the victim, provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused, or any other interest of theirs to serve. What is key in our view, is for the court to satisfy itself that there is no danger of false implication." Mr Baka, learned counsel for the State, submitted that the learned trial judge followed the above guideline when he felt satisfied that the witnesses in this case did not set out to falsely implicate the appellant. We do not agree with the appellant that the learned judge did not correctly approach the issue whether the civilian witnesses were witnesses with an interest to serve. Our holding in Boniface Chanda Chola v The People' 1 ' clearly states that, for witnesses who are not necessarily accomplices, the consideration is whether they J 9 P.766 had a motive to give false evidence and not whether they did in fact have interests or purposes of their own to serve: and that where there is a possibility of the existence of a motive to give false evidence then the danger of false implication is present and must be excluded before a conviction can be said to be safe. In this case, the learned judge appears to have been alive to this approach because he recognized the possibility of the existence of bias on the part of the civilian witnesses. Then he went further to consider the fact that PWl declined to point at the appellant in court when she could have easily done so had she set out to falsely implicate him. By this consideration, the learned judge was excluding the danger of false implication as we guided in the Boniface Chanda Chola case. So, we find nothing wrong with the way the learned judge dealt with the issue. Consequently, we find no merit in the first ground of appeal. In the second ground of appeal the appellant faults the learned judge for disbelieving the testimony of the police witnesses. We have dealt with such questions before . In Malawo v Bulk Carriers of Zambia Limitedl 3I we held: "Where questions of credibility are involved, an appellate court which has not had the advantage of seeing and J 10 P.767 hearing witnesses will not interfere with findings of fact made by the trial judge unless it is clearly shown that he has fallen in error" The respondent also referred us to the case of Mushemi v The People'41 where we held that the credibility of a witness cannot be assessed in isolation from the rest of the witnesses whose evidence is in substantial conflict with that of the witness: and that in those circumstances the trial court should show why the witness is believed in preference to the others. In this case, the whole issue was one of credibility between the civilian and the police witnesses. The trial judge stated why he found the testimony of the police witnesses to be not credible: He found that the police witnesses went out of their way, even in the absence of credible evidence, to suggest that the deceased died as a result of being assaulted by a mob. From the above authorities, the learned judge guided himself well. Therefore, we cannot interfere with his choice of the testimony to believe. We consequently find no merit in the second ground of appeal. J 11 P.768 In the third ground of appeal, the appellant attacks a finding of fact made by the learned judge, namely that a short baton was used to hit the deceased on the head. Again, this is a question on which we have expressed ourselves in several cases. For example, in Imusho v The Peoplel 51, the Court of Appeal (as this court was called then) held: "An appellate court will not interfere with a finding of fact if there was reasonable ground for it, but such finding will be set aside if it was made on a view of the facts which could not reasonably be entertained". In this case, there is evidence from the witnesses whom the trial judge found to be credible that a short baton was used. The pathologist's report did not rule out the possibility of the deceased's injury being caused by such a method. So, there were reasonable grounds for the trial judge to make that finding . In the circumstances, we find no merit in the third ground of appeal. The fourth ground raises a technical question, namely, whether from the appellant's conduct one could deduce or establish malice aforethought. The trial judge found that while the appellant may not have had the actual intention to kill the deceased, his conduct, J 12 nevertheless, showed that he either intended to cause grievous bodily harm or knew that hitting the deceased in the head with the short baton was likely to cause death or grievous bodily harm. Indeed, the conduct of the appellant did establish that his attitude as regards the consequences of his actions were as found by the court. That attitude is one of the circumstances in which malice aforethought is deemed to be established under section 204 of the Penal Code. So, we find no merit in the fourth ground of appeal. All in all, the whole appeal has no merit. We dismiss it. G. S. hiri SUPREME COURT JUDGE r