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IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 128/2009
HOLDEN AT LUSAKA
(Civil Jurisdiction)
BETWEEN:
NYAMBE MUKENA
APPELLANT
AND
THE PEOPLE
RESPONDENT
Coram: Chibesakunda, Chibomba and Phiri JJS.
1st September, 2009 and on 8th May 2012
For the Appellant
: Mr. S. Imasiku of Messrs Imasiku and Company
For the People
: Mrs. R. N. Nkhuzwayo, Deputy Chief State Advocate
______________________________________________________________________________
JUDGMENT
__________________________________________________________________
Chibesakunda, JS., delivered the Judgment of the Court.
Cases referred to
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Kambarange Mpundu Kaunda v The People (1992) S.J 1 (S.C)
DPP v Kilbourne (1973) 1 All E.R. 440
The People v Swillah (1976) Z.R. 338
Haamenda v The People (1977) Z.R. 184
Kabala and Masefu v The People (1981) Z.R. 102
David Zulu v The People (1977) Z.R. 151
Dorothy Mutale and Richard Phiri v The People (1997) S.J. 51 (S.C)
The Appellant was charged and convicted on one count of
murder contrary to Section 200 of the Penal Code, Cap 87.
The
particulars allege that he, Nyambe Mukena, on the 2nd day of
August, 2007 at Imatongo Village in the Senanga District, of the
Western Province, of the Republic of Zambia, jointly and whilst
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acting with other persons unknown, did murder one Kawama
Sitwala.
The evidence for the prosecution on which he was convicted is
that PW1 and PW2, relatives of the deceased, Kawana Sitwali, on
the 2nd August, 2007 woke up around 05:00 am. Both around that
time saw a stranger moving in the vicinity of the house of the
deceased. This stranger kept moving to and from the house of the
deceased and to near the place the villagers used to use as a toilet.
He was on the path leading to the toilets.
At that time, the
deceased was getting ready to go to the Boma. He was looking at
his bicycle making sure that it was road worthy before his
departure.
PW1’s and PW2’s testimony is that they also were
preparing to go to a funeral house in the nearby village. They both
testified that they found this stranger to be a person they have
never seen before. They observed that he kept standing and sitting
down whenever he felt tired. According to PW1, she observed the
man for three hours on the same spot. According to PW2, she even
tried to go and chase him as he was a nuisance because he was in
their way to the place they used as a toilet. Later, the deceased
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started walking as he pushed his bicycle to the Boma. At that point
in time, the stranger also then disappeared; the witnesses did not
know where he went. Ten minutes later, they heard two gun shots.
They went to the direction where the gun shots were coming from
and found the deceased lying in a pool of blood with gun shot
wounds.
The two witnesses further informed the court that this
stranger had stayed on the side of the path on which the deceased
was walking to go to the Boma. PW1 identified at the identification
parade, the young stranger as the Appellant.
PW3, another villager, testified that on that same day, the 2nd
August, 2007, in the morning, as she and others were in the bush
collecting fire wood, they saw the deceased walking.
He, after
greeting them, informed them that he was proceeding on to the
Boma. Soon after they parted with the deceased, they heard a bang
which sounded similar to a tyre burst. After this bang, PW3 heard
somebody crying three times that ‘I am dying’. She then heard a
second bang. So she was scared. She and her two colleagues ran
home, shouting for help. As they ran to the village, they met some
villagers from the village and after that they reported this incident
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to these people. They all decided to go where the sound was coming
from. They then found the deceased already dead. PW6 was the
arresting Officer.
He testified that an identification parade was
conducted at which PW1 identified the Appellant as the young
stranger who she says she observed for three hours in the vicinity
of the deceased’s house.
The Appellant was found with a case to answer. He opted to
remain silent.
On this evidence before the court, the learned trial Judge
convicted the Appellant and sentenced him to a mandatory
sentence of death. He now is appealing against both conviction and
sentence.
At the hearing of the appeal, the Appellant raised three
grounds of appeal namely:
Ground 1
The learned Court below erred in law and fact when it convicted the
Appellant on the uncorroborated evidence of PW1 and PW2, both being
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witnesses with an interest to serve or witnesses whose evidence was
suspect.
Ground 2
The learned Court below misdirected itself by not considering the
possibility of honest mistake in the evidence of identification
Ground 3
The learned Court below erred in law and fact when it convicted the
Appellant in the absence of direct evidence connecting the
accused to the crime.
On ground 1, it was argued on behalf of the Appellant that the
lower court erred in law and in fact when it convicted the Appellant
on uncorroborated evidence of PW1 and PW2, both being witnesses
with an interest to serve or witnesses whose evidence was suspect.
Elaborating on this argument, Counsel argued that although it is
trite law that a court may convict on the evidence of one witness
alone, however, in practice, it has been established that in certain
types of cases or with particular categories of witnesses, it is
dangerous to convict in the absence of corroboration, see the case
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of Kambarange Mpundu Kaunda v The People1. Counsel argued
that PW1 and PW2 whose evidence the court heavily relied on in
convicting the Appellant, fell within the category of what may be
described as suspect witnesses as the two witnesses were both
close relatives of the deceased. As such, their evidence should have
essentially been treated as suspect particularly in the absence of
corroboration. Counsel cited an English case of DPP v Kilbourne2
where Lord Hailsham pointed out that the principles regarding the
categories of suspect witnesses must be applied to a witness with a
possible bias such as a relative. The question in every such case is
whether the danger of relying on the evidence of the suspect witness
has been excluded. According to Counsel, critical consideration is
not whether the witness does not in fact have an interest or purpose
of his own to serve but rather whether he is a witness who may
have a motive to give false evidence. On the facts at hand, Counsel
argued, PW1 and PW2 were witnesses with a possible motive of
punishing any person they believed to have caused the death of
their relative. He, therefore, urged the court to uphold this ground
of appeal.
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On ground 2, Counsel argued that the lower court misdirected
itself by not considering the possibility of an honest mistake in the
evidence of identifying the Appellant as the person who murdered
Kawana Sitwala. He argued that at law, the identification evidence
is normally considered with special care to ensure that a person is
not wrongly convicted on false or mistaken evidence of identity.
According to the case of The People v Swillah3, a court must all
the time consider the danger of an honest mistake.
Counsel
explained that in the case of Haamenda v The People4, some
guidelines on the approach to be taken were propounded. Firstly,
that the Judge should warn himself or herself of a special need for
caution before convicting the accused in relying on the correctness
of the identification. Secondly, the Judge should examine closely
the circumstances in which the identification by each witness was
made.
In the case before the Court, Counsel urged the court to
address itself to these requirements. Counsel argued that PW1 for
instance stated that she observed the young strange man for a
period of three hours before disappearing and that it was her first
time to see this person in the village. Counsel contended that that
period in which PW1 alleged to have observed the Appellant is
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rather long considering her evidence as to the time of her waking up
and hearing of the gun shots.
In Counsel’s view, the period of
observing the young strange person must have been less than three
hours before the gun shots were heard. Thirdly, according to the
testimony by both PW1 and PW2, the young stranger stood at the
distance of 75 metres from where they were.
The question,
therefore, is whether the observation made by both of them on the
material day and PW1’s subsequent identification of the Appellant
at the Police Station, was reliable.
Counsel’s contention is that
PW2’s testimony should not have been considered as credible
taking into account the distance between where she was and where
the young strange man was standing. PW1 could not have had a
proper view of the young stranger. Counsel also argued that in
fact, the identification parade took place several weeks after the
event to the extent that, that should negate her ability to have had
an accurate identification and as such, the possibility of an honest
mistake. Counsel also attacked the way the identification parade
was conducted. So, he urged the court to consider the quality of
the evidence of identification as he labeled it as poor. Citing the
case of Kabala and Masefu v The People5, he argued that the sole
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objective of taking an identification parade is to test the ability of a
witness to pick out a person he claims to have previously seen on a
specified occasion. Counsel further argued that it is trite law that
the identification parade must be fairly and properly conducted,
failing which such evidence of identification would be of no use as
evidence.
He argued that according to the evidence on record, on
the day of identification parade, PW1 and PW2 and Siwamba
Nambai were all put in the office of the Officer-in-Charge. PW1 was
the first witness to be called to the identification parade after which
she was taken back to the office of the Officer-in-Charge where
other witnesses yet to be called to the identification parade, were.
The evidence on record also indicates that the Appellant had
complained to the Police that he had been seen by PW1 outside the
office of the Officer-in-Charge before the identification parade was
conducted.
Counsel’s
contention
is
that
the
evidence
of
identification on which the court relied in convicting the Appellant
was poor and thus not sufficient to connect the Appellant with the
commission of the crime charged.
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On ground three, Counsel argued that the court below erred in
law and in fact when it convicted the Appellant in the absence of
direct evidence connecting the accused to the crime.
Counsel
argued that the court below relied on circumstantial evidence. As a
general rule, the court is competent to convict on such evidence if
the possible defects in the circumstantial evidence may include not
only those defects which occur in direct evidence such as falsehood,
bias or mistake on the part of the witnesses, but will have the effect
of erroneous inference.
Citing the case of David Zulu v The
People6 where it was held:“……the possible defects in circumstantial evidence may include not
only those which occur in direct evidence such as falsehood, bias or
mistake on the part of witnesses, but also the effect of erroneous
inference… It is therefore incumbent on a trial judge that he should
guard against drawing wrong inferences from the circumstantial
evidence at his disposal before he can feel safe to convict. The
judge in our view must, in order to feel safe to convict, be satisfied
that the circumstantial evidence has taken the case out of the
realm of conjecture so that it attains such a degree of cogency
which can permit only of an inference of guilt.”
He argued that in the case before this court, the inference of guilt
was not the only reasonable inference because (a) there was no
direct evidence or eye witness, (b) there was time lag between the
time when the deceased left his house and the sound of gun shots
at least ten minutes which can bring in the possibility that the
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deceased was killed by unknown persons.
Because of these two
reasons, this left the case for the prosecution in speculation.
Counsel pointed to further weakness in the prosecution’s case that
none of the key witnesses saw the strange young man with any gun
and yet the medical report established that the deceased died of a
perforating gunshot wound in the skull. But the learned trial Judge
did not consider all these weaknesses in the evidence of the
prosecution. Citing the case of Dorothy Mutale and Richard Phiri
v The People7, Counsel argued that where two or more inferences
are possible, it has always been a cardinal principle of criminal law
that the court will adopt the one which is more favourable to the
accused.
He, therefore, urged this court to uphold the appeal as
the evidence before the court did not succeed in taking this matter
out of the conjecture. This appeal should be allowed.
Mrs. R. N. Nkhuzwayo for the People submitted that she did
not support the conviction.
According to her, there was no
sufficient evidence to connect the Appellant to the commission of
the offence.
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We have looked at the evidence on the record. We have also
considered issues raised in this appeal.
We have addressed our
minds to the authorities cited in particular, the case of David Zulu7
which has set useful guidelines in cases where the prosecution
relies on circumstantial evidence.
The question now is, did the
learned trial Judge draw a wrong inference?
Firstly, we have taken
judicial notice of the village set-up. In a village set-up, visitors to
the village are either known to the villagers or if they are strangers,
their purpose to visit becomes evident fairly soon after arrival. This
is because a village is usually a small entity and usually, consisting
of one family or close members of the family.
According to the
evidence before this court, the young stranger who was later
identified as the Appellant by PW1, visited the village at a rather
ungodly hour around 05:00 hours in the morning without knowing
the purpose of his visit and the people he was visiting.
attracted the attention of both PW1 and PW2.
That
This stranger,
further attracted the attention of the two witnesses because he was
hovering around the deceased’s house. According to PW1, it took
three hours. It has been argued by the Appellant that both PW1
and PW2 could not have seen this Appellant as he was about 75
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metres from where they were.
We take judicial notice of the
weather in August in Zambia. We also take judicial notice of the
fact that 05:00 hours in the morning in August would be bright and
clear to the extent that a person can easily see another person at a
distance of 75 metres. We are, therefore, satisfied that both PW1
and PW2 clearly saw the strange young man.
On the issue of
credibility, the learned trial Judge was in a better position to assess
the truthfulness or otherwise of both PW1 and PW2.
On this same point, it has been argued that the evidence of
PW1 and PW2 needed to be corroborated as witnesses with an
interest to serve or witnesses whose evidence was suspect as they
were relatives of the deceased. We accept that the two witnesses
were related to the deceased.
However, adopting the rationale of
Lord Hailsham in the English case of DPP v Kilbourne2, the critical
consideration is whether or not the two witnesses had a possible
motive to give false evidence against the Appellant. The evidence
before the lower court and now before this court is that PW1 and
PW2 had never seen the Appellant before and as such, they would
have no reason to give false evidence against him. We are fortified
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in reaching that conclusion taking judicial notice of the fact that
PW1 and PW2 are normal ordinary villagers and as such could not
deliberately concoct stories against the Appellant because villagers
in Zambia in general have kept the traditional way of accepting
visitors on the face value.
Also, we are mindful of the fact that at
law, corroboration need not be direct evidence that the Appellant
committed this offence. It is sufficient if it is merely circumstantial
evidence of the Appellant’s connection to the offence now before the
court.
The learned authors of Archbold at para 1416 page 781,
have put it this way,
“It is not a consequence of the principles laid down in R. v.
Baskerville that there should be independent evidence of everything
which the witness relates, or his testimony would be unnecessary
(see R. v. Mullins (1848) 3 Cox 528 at p. 531). Indeed if it were
required that the witness should be confirmed in every detail of the
crime, his evidence would not be essential to the case, it would
merely be confirmatory of other independent evidence”
By parity of reason, we are satisfied that not every word
of PW1 needed corroboration.
The important parts of the
testimony of PW1 were corroborated by PW2’s evidence.
We,
therefore, do not accept Counsel’s argument that the two key
witnesses had a motive to lie against the Appellant.
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Even if we accepted Counsel’s argument that PW1 and
PW2’s evidence required respective corroboration (which we do
not), according to the learned authors of Archbold at page 782,
“although there is no general rule against mutual corroboration it is
clear that (i) one accomplice cannot corroborate another where each
is an accomplice of the accused in the same crime, see post, in view
of the observations of Lord Reid and Lord Hailsham in D.P.P. v.
Kilbourne the true extent of the prohibition upon one accomplice
being allowed to corroborate another has still to be determined)
By parity of reason, we hold that as there is no general rule
that two witnesses in the category of suspect witnesses cannot
corroborate each other and the extent of the prohibition is not
known, in this case, the two witnesses in our view can corroborate
each other to the extent that the evidence of PW1 supports the
evidence of PW2 that the young man around 05:00 hours in the
morning behaved in an unusual manner and disappeared without
visiting anybody at the time the deceased set off for the Boma and
that the two witnesses together with other villagers heard two gun
shots ten minutes thereafter and found the deceased in a pool of
blood.
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Coming to ground 3, we find that argument to be odd and
contrary to the law in view of the fact that at law, a person can be
convicted on circumstantial evidence as long as that circumstantial
evidence satisfies the trial Judge to the extent that such evidence
takes the case out of the realm of conjecture so that it attains such
degree of cogency which can only permit the inference of guilt (see
case of David Zulu v. the People6).
The learned trial Judge
accepted that around 05:00 hours in the morning, on the 2nd of
August, 2007, the Appellant was seen hovering around the
deceased’s house.
The lower court found as a fact that with no
given explanation, the Appellant was in the village at that ungodly
hour, that he disappeared, soon after the deceased left for the Boma
pushing his bicycle, that soon after his disappearance and the
deceased’s departure for the Boma, the villagers heard two gun
shots and ten minutes later, the deceased was found in a pool of
blood dead. The question before the court was whether or not it
could have been a coincidence that this set of facts occurred more
or less at the same time as the crime was being committed. The
answer was negative. We hold that the learned trial Judge rightly
convicted the Appellant. Given these set of facts, we hold that on
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these facts even though circumstantial, the only reasonable
inference which the court below drew is that the Appellant
committed this crime of murder with other persons unknown. Even
though the Appellant was not seen with any gun, the lower court
was correct that the Appellant committed this crime of murder.
We, therefore, find that there is no merit in the appeal. We dismiss
the appeal. We confirm both conviction and sentence.
………………………………….
L. P. Chibesakunda
SUPREME COURT JUDGE
………………………………….
H. Chibomba
SUPREME COURT JUDGE
.…….………………………
G. S. Phiri
SUPREME COURT JUDGE