Ziayinza v People (SCZ Appeal 23 of 1993) [1993] ZMSC 39 (2 March 1993)

Ei Tit amt CORI OF ZW1A 3CZ mi to, 23 Of 1993. HJLQEN AT fDOLA. (Criminal Jurisdiction). RWCIS ZMHNZA Appellate vs Tr£ PEOPLE Respondent Corass Gartner. $^1* and Chaito. XJ. JLS. adFM, 193X For the appellant, SX Hnthall. Acting Director of Legal Aid. For the Respondent, K. ML Assistant Senior State Advocate. ____________________________________ JttnaagMTt___________________________________ Sakala JX delivered the jud^ent of the court. Tie oppellartt was convicted of aggravated rettery contrary to Section 294(1) Cap 146 of the Laws of Zambia. The particulars of the offence alleged that, the appellant, on the 7th of Hoventer, 1929 at Kasama, jointly and whilst acting together with other persons wknown. stole property worth K4.400, the property of Miry Chiteaka and used violence at the time of the robbery. Briefly, the case for the prosecution was tlut was walking home with a friend when W ware confronted ty two nan who slapped her and ordered then both to sit down. Thereafter they were asked to choose betweai death or losing tneir property. They surrendered their property. The following morning, RE went to the market where she saw a vonan wearing a skirt she Identified to be among the property stolen free ter the previous dqy. Hat watan was RB, PW3 identifled PW1 as the person 4» had sold her the skirt. According to PW1. he was given K5O. OQ by the appellant as ccradssicn far selling the skirt, then the appellate was identified by PW1 tne oajplainant, RB, recognised the appellant as one of her assailants the day before. In Ms defence, the appellant denied knowing PWl, he also denied giving a skirt to hta to »11 on his behalf, claiming that he was only found to the company of PHI. The learned trial ju^e on the evidence on record treated ftrt as a witness with a possible interest Of hi s own to save having been the person 4to sold the stolen property and also having been detained ty the police and interrogated for Vs sate offence, toe learned trial J2. judge also found that the evidence of PM2, the complainant, to the effect that she recognised the appellant on the following day corroborated the suspect evidence of PHI, when he said he had been given a skirt by the appellant to sell on his behalf. The learned Acting Director of Legal Aid advanced two grounds of appeal. He submitted that the learned trial judge misdirected himself in convicting the appellant on the uncorroborated evidence of PWs 1,2 and 3. The learned Acting Dinactor of Legal Aid pointed out that PHI is the one kdto sold the skirt to PW3 yet In his judgment the learned trial judge said nothing about the status of PW3. The learned Acting Director further pointed out that PW3 does not ire nt ion PHI and yet the teamed trial judge accepted the evidence of m2 as corroborating PHI. The learned Acting Director also attacked the evidence of PM2 in relation to identification. He argued that this was a single identifying witness and the learned trial judge never considered the danger of relying on a single witness identifica­ tion. The Acting Director pointed out that the skirt in issue was never described and not exhibited in court. The second ground of appeal is that the appellant denied being involved In the robbery right from the time he was arrested. He repeated his denial in court three years later at the trial. The learned Acting Director argued that it was a misdirection for the learned trial judge to dismiss the appellant's denial as an after thought. He submitted that it would be unsafe to allow the conviction to stand. On behalf of the State, Mr. Lwali Indicated that he supported the conviction and said PHI sold the skirt to PW3 and PW2 identified the skirt when it was being won. by PW3. He submitted that the evidence of recognition by PM2 adequately corroborated the evidence of PHI. Me have very carefully examined the evidence on record and the judgment fay the learned trial court. Me have also addressed our minds to the submissions by both learned counsel. We agree that PW1, having been in possession of a stolen skirt at the time and having been intorragatod and detained by the police, was a witness with a possible interest of his own to serve. We are however satisfied that this suspect evidence of PHI was adequately corroborated by tiw evidence of an honest witness, PW2. . In addition^the evidence of a suspect witness are the circumstances to surrounding the sale and the manner in which the robbery was committed. We ace. therefore satisfied that there was sauething more justifying the conviction. The appeal against conviction is therefore dismissed. 3/.* J3. The sentence of sixteen years imprisonment with hard labour does not come to us with a sense of shock. The appeal against sentence is also dismissed* B. T. Gardner* SUPREME COURT JUDGE. E. L. Sakala* SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.