IN THE SUPREME COURT OF ZAMBIA
HOLDEN AT LUSAKA
(Criminal Jurisdiction)
SCZ/APPEAL № 333/2013
BETWEEN:
RICHARD DAKA
Appellant
AND
THE PEOPLE
CORAM:
Respondent
MUMBA, AG DCJ, LENGALENGA AND HAMAUNDU, AG.
JJS
On 3rd December, 2013 and 4th February, 2014
For the Appellant
:
Miss G N Mukulwamutiyo, Assistant Senior
Legal Aid Counsel – Legal Aid Board
For the Respondent
:
Miss N T Mumba, Senior State Advocate –
National Prosecutions Authority
JUDGMENT
LENGALENGA, AG. JS, delivered the Judgment of the Court.
Cases referred to:
1.
2.
3.
4.
5.
EMMANUEL PHIRI v THE PEOPLE (1982) ZR 77
BERNARD CHISHA v THE PEOPLE (1980) ZR 36
MWABONA v THE PEOPLE (1973) ZR 28
JOSEPH MWAMBA v THE PEOPLE (2007) SCJ № 103
MACHIPISHA KOMBE v THE PEOPLE (2009) ZR 282
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6.
7.
8.
9.
ZULU v THE PEOPLE (1973) ZR 326
DOROTHY MUTALE & ANOTHER v THE PEOPLE (1997) ZR 51
GOBA v THE PEOPLE (1966) ZR 113
PATRICK SAKALA v THE PEOPLE (1980) ZR 205
When we heard this appeal we sat with Honourable Mrs. Justice
Mumba who has since retired. This judgment is therefore, a majority
judgment.
The appellant was convicted of defilement contrary to section
138(1) of the Penal Code Cap 87 as read with amendment Act № 15
of 2005 of the Laws of Zambia. The particulars of offence are that on
18th June, 2011 at Lusaka in the Lusaka District of the Lusaka Province
of the Republic of Zambia, the appellant had unlawful carnal
knowledge of a girl under the age of 16 years. He was sentenced to
thirty (30) years imprisonment with hard labour with effect from 28th
July, 2011, the date of arrest. He now appeals against conviction.
The prosecution case mainly rested on the evidence of four
witnesses, namely, PW1, PW2, PW3 and PW5.
The prosecution
evidence is to the effect that on 18th June, 2011, PW1, Ireen Tembo’s
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five year old daughter went to play.
When she returned she
complained that she was not feeling well as she felt pain on her private
parts. Upon checking her, PW1 noticed that she was swollen with a
slippery liquid. When she was asked who had done that to her, she
pointed in the direction of a house to which she later led her mother,
PW1.
At the house which was near PW1’s house, PW1 and her
husband, PW2 knocked on the door but no-one opened the door.
Thereafter, they went to the neighbor who advised them to go to the
police. Before going to the police, they decided to go and knock and
on the way they met someone who accompanied them.
After
knocking, the appellant opened the door and they told him why they
were there. They also learnt that he lived alone. An argument arose
and according to PW2, Joseph Tembo, the appellant started beating
him and he even got a shovel with which he hit him until some people
rescued him. The appellant was apprehended and taken to the police
station where PW2 and the child were issued with medical examination
forms to take to the hospital. PW2’s medical examination report was
for Chelstone Clinic whilst the child’s was for examination at the
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University Teaching Hospital. PW1 and PW2 identified the appellant
as the person who defiled their daughter and also assaulted PW2.
PW3, the prosecutrix gave sworn evidence after a voire dire was
conducted and the trial court satisfied itself that she possessed
sufficient intelligence to understand the nature of an oath.
She
testified that she was five years old and lived in Chelstone at an
unknown address. Her brief testimony was that she was held by the
appellant (Mr. Daka) who undressed her and touched her on her
vagina, then he put something inside her and it was painful. She added
that the appellant had also undressed and that this happened in his
house. She pointed at him by way of identification.
Further, under cross-examination, she told the appellant that he
was the one who defiled her and that he was alone when he held her
and took her inside his house. She said that while in his house, he did
not ask her anything but just undressed her and held her on her
vagina.
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PW4, Detective Sergeant Kizzy Chungu Siame of Chelstone Police
Station confirmed receiving two dockets on 19th June, 2011. He stated
that one was for defilement while the other was for assault. He also
testified that the victim was only five (5) years old and he noticed that
she was traumatized and he proceeded to interview her mother and
father. This witness had testified that the appellant had freely and
voluntarily denied the charges under warn and caution, he identified
the appellant in the trial court.
PW5, Dr. Jonathan Kaunda Mwansa, a Pediatrician working at
the University Teaching Hospital as a Senior Registrar conducted a
medical examination on the child. The medical examination revealed
that her hymen was torn thereby confirming that she was defiled. He
also conducted medical tests for sexually transmitted diseases such as
HIV, hepatitis, syphilis and gonorrhea. The results were negative and
even when the child went back for review they were all negative. He
reduced his medical findings into writing on the medical examination
report (exhibits “P1” and “P2”) which he signed and date stamped on
exit, on 15th July, 2011.
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As earlier stated, according to the evidence on record, under
warn and caution at the police station, the appellant denied the charge,
and during this defence in court, he gave sworn testimony and called
his wife, DW2 and DW3, his daughter who also gave sworn
testimonies.
When considering the evidence, the trial Court observed that
with regard to corroboration of the identity of the offender, there was
no direct evidence of the same but there was strong circumstantial
evidence connecting the accused to the alleged offence. She also
noted that the accused testified of dates not connected to the case
despite being reminded of the dates by the court before opening his
defence. The learned trial magistrate found that the child was defiled
as the medical report confirmed the same.
Upon evaluating the
evidence she was satisfied that on 18th June, 2011 the appellant had
carnal knowledge of the victim and prosecutrix, PW3. She found him
guilty and convicted him accordingly.
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The appellant filed three grounds of appeal which read as
follows:
1. The learned trial Court erred in law and in fact in
convicting the appellant in the absence of
corroborative evidence or evidence of something more
to exclude the danger of false complaint and false
implication.
2. The learned trial Court misdirected itself in convicting
the appellant on the basis of circumstantial evidence
which is not sufficient enough to warrant only an
inference of guilt.
3. The learned trial Court erred in law and in fact in
receiving the evidence of a child on oath after a
defective voire dire and ruling.
The grounds are supported by heads of arguments. In support of the first
ground of appeal, Miss Mukulwamutiyo submitted that the only evidence that
the appellant defiled the prosecutrix is that of PW3, a child of tender age as
well as that of her mother and father. She added that there was no other
independent evidence. She referred us to the case of EMMANUEL PHIRI
v THE PEOPLE1 in which this Court held inter alia:
“In a sexual offence there must be corroboration of both
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commission of the offence and the identity of the offender in
order to eliminate the dangers of false complaint and false
implication. Failure by the court to do so is a misdirection.”
She further relied on the case of BERNARD CHISHA v THE PEOPLE2 in
which we observed that a child due to immaturity of mind is susceptible to
the influence by third persons and as such their evidence requires to be
corroborated.
Learned Counsel for the appellant argued that PW1 and PW2’s
evidence cannot be relied on as they fall within the category of persons who
may influence a child, in this case PW3.
She submitted that they are,
therefore, suspect witnesses whose evidence cannot be relied upon as a
basis for a conviction. She referred us to MWAMBONA v THE PEOPLE3.
Miss Mukulwamutiyo further distinguished the case of JOSEPH
MWAMBA v THE PEOPLE4 cited by the trial court at page 74 of the record
from this case. She submitted that in that case the accused was alone in
the bush with the grandmother whereas in this case there was no reliable
evidence to the effect that the appellant was alone with the prosecutrix on
the material date.
She submitted that, therefore, on the authority of
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MACHIPISHA KOMBE v THE PEOPLE5, it was their contention that there
was nothing to warrant “something more” and there was no odd
coincidence or unexplained circumstances in this case. Learned Counsel for
the appellant contended further that the circumstantial evidence that the
trial court referred to and placed reliance on falls far short of the requirement
in ZULU v THE PEOPLE6.
She argued that it is possible that PW3 accused the appellant of the
offence after she was beaten by her parents as shown at page 38 of the
record. Miss Mukulwamutiyo further submitted that the dangers of false
complaint and false implication were not excluded and they prayed that this
ground of appeal be allowed and that the conviction be quashed and the
sentence be set aside.
With regard to the second ground of appeal, learned Counsel for the
appellant argued that there is no strong circumstantial evidence connecting
the appellant to the alleged offence as stated by the court below. She
submitted that the trial court arrived at a number of conclusions that are not
supported by evidence on record and she made particular reference to the
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learned trial magistrate’s comments at page 73 of the record where she
stated:
“It is, therefore, clear that the child who referred to accused
as Mr. Daka knew accused very well so did accused and the
accused had opportunity to meet the child.”
She pointed out to the court that the prosecutrix did not testify to the effect
that she knew the accused very well. She further contended that there is
no evidence on record that the appellant had the opportunity to commit the
offence. Learned Counsel for the appellant also submitted that the learned
trial court did not address its mind to the other circumstances presented by
the defence evidence such as his defence or alibi that he was home with four
of his children on that material day. Miss Mukulwamutiyo argued that there
is nothing on record to exclude an inference favourable to the appellant and
she relied on the case of DOROTHY MUTALE & ANOTHER v THE
PEOPLE7 in which this Court held:
“Where two or more inferences are possible, it has always
been a cardinal principle of the criminal law that the court will
adopt the one which is more favourable to an accused if there
is nothing to exclude such inference.”
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In this case, Counsel for the appellant prayed that the second ground be
allowed and that the conviction be quashed.
In support of the third ground of appeal, that the voire dire was
defective and that the trial court ought not to have received the child’s
evidence on oath, she argued that reliance was made on the repealed
provision of the Juveniles Act, Cap. 53 of the Laws of Zambia. She submitted
that although the offence was allegedly committed on 18th June, 2011, after
the enactment of the Juveniles (Amendment) Act, 2011, the learned trial
court did not address itself to section 122 which replaced the repealed
provision.
It was further contended that it was evident that the prosecutrix did
not possess sufficient intelligence to justify the reception of her evidence on
oath. It was submitted that, therefore, the evidence by PW3 should be
discounted because it was defective.
Appellant’s Counsel fortified her
argument by reliance on the Court of Appeal’s holding in the case of GOBA
v THE PEOPLE8 where it observed that “when no proper voire dire is
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carried out the evidence of the witness should be discounted
entirely.”
In conclusion, she submitted that this is not a proper case for re-trial
as there is no corroborative evidence or evidence of something more. She
prayed that the appeal be allowed on this ground and that the appellant be
released.
Learned Senior State Advocate, Miss N T Mumba made oral
submissions in response to the appellant’s grounds of appeal.
In response to the first ground of appeal she argued that there was
sufficient corroboration on record and she drew our attention to the case of
MACHIPISHA KOMBE v THE PEOPLE. She submitted that there was
corroboration in opportunity and lack of motive to falsely implicate the
appellant. She submitted further that the appellant tried to approach the
prosecutrix family to settle the matter and that that is “something more.”
On the issue of lack of motive to falsely implicate the appellant, Miss
Mumba’s contention was that there is evidence that the prosecutrix informed
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her mother at the first opportunity when she returned home that she felt
pain in her private parts.
As for opportunity, she submitted that it was there as the appellant’s
house and the prosecutrix home were about 100 metres apart, with houses
in between but the young prosecutrix was able to lead her parents to the
appellant’s house.
In response to the second ground of appeal, Counsel submitted that
the circumstantial evidence was sufficient to put the case out of the realm
of conjecture.
Further, in response to the third ground of appeal, Miss Mumba
submitted that the voire dire was not defective as alleged. She stated that
from perusal of the record, particularly page 11 and the ruling of the trial
court, starting at line 11, it is clear that the trial court addressed itself to the
amendment by stating:
“Having examined the child, I am satisfied that she does
possess sufficient intelligence hence, she will give sworn
testimony.”
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Miss Mumba submitted that therefore, the trial court was also alive to the
need for the child to understand the importance of speaking the truth.
Learned Counsel for the respondent’s contention is that the learned trial
court was on firm ground when it ruled that the child possessed sufficient
intelligence. She submitted that therefore, the voire dire was not defective
even if the trial court did not specifically state that the child understood the
importance of telling the truth. She prayed that the court dismisses the
appeal.
We have considered the submissions by both learned Counsel and
have perused the record of proceedings.
The gist of the submission in support of the first ground of appeal is
that in the absence of corroborative evidence or evidence of something more
to exclude the danger of false complaint and false implication, the conviction
cannot stand.
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On the commission of the offence, the medical report produced as
exhibit “P1” by the prosecution corroborated the evidence of defilement of
the prosecutrix, PW3.
As regards the identity of the perpetrator of the offence, the learned
trial magistrate observed that there was no direct evidence of corroboration.
In fact from the record, we found no corroboration of the child’s evidence to
that effect. Miss N T Mumba strongly argued that there was corroboration
in opportunity by the appellant and lack of motive to falsely implicate on the
part of PW3. However, learned Counsel for the appellant had presented the
possibility of the child having pointed at appellant because she was beaten
by her parents. We are not persuaded that there is evidence of something
more to exclude the danger of false complaint and false implication as
suggested by Counsel for the respondent. Whilst we accept that there could
have been opportunity for the appellant to defile PW3, we are also mindful
of the possibility of her having been defiled by someone else. Our reasoning
is based on the fact that the prosecutrix’ parents house and the appelant’s
house were about 100 metres apart, with houses in between.
Hence,
another person could have defiled her. As we stated in DOROTHY MUTALE
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& ANOTHER v THE PEOPLE, which learned Counsel for the appellant cited,
where two or more inferences are possible, the court will adopt one which is
more favourable to the accused, if there is nothing to exclude such inference.
We, accordingly, allow the first ground of appeal.
Incidentally, the second ground of appeal that the learned trial court
misdirected itself in convicting the appellant on the basis of circumstantial
evidence which is not sufficient enough to warrant only an inference of guilt,
appears to have been covered by our finding on the first ground of appeal.
We accept the arguments by Miss Mukulwamutiyo that the circumstantial
evidence was weak even though the trial court arrived at a number of
conclusions that are not supported by evidence. For instance, the suggestion
that the child’s reference to the appellant as Mr. Daka indicated that she
knew him very well.
In PATRICK SAKALA v THE PEOPLE9, this Court on the acceptance
of circumstantial evidence held:
“The circumstantial evidence was so cogent and compelling
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that no rational hypothesis other than murder could the facts
in this case be accounted for:”
Simply stated this means that the circumstantial evidence has to be so
overwhelming that no other inferences can be drawn from the evidence.
Unfortunately, the same cannot be said about the evidence in this
case. There are lingering doubts that must be resolved in the appellant’s
favour. Hence, the second ground of appeal succeeds.
Finally, we turn to the third ground of appeal that the learned trial
court erred in law and in fact in receiving the evidence of a child on oath
after a defective voire dire and ruling. As we stated in ZULU v THE PEOPLE
the correct procedure on conducting a voire dire is found in section 122 of
the Juveniles Act. The said section 122 having been repealed and replaced
by a new provision, it follows that this new provision of the Juveniles
(Amendment) Act 2011 is now applicable and it provides:
“122. Where, in any criminal or civil proceedings against any
person, a child below the age of fourteen is called as a
witness, the court shall receive the evidence, on oath, of the
child if, in the opinion of the court, the child is possessed of
sufficient intelligence to justify the reception of the child’s
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evidence, on oath, and understands the duty of speaking the
truth:
Provided that –
(a) If, in the opinion of the court, the child is not
possessed of sufficient intelligence to justify the
reception of the child’s evidence, on oath, and does
not understand the duty of speaking the truth, the
court shall not receive the evidence; and”
In the instant case, the voire dire in contention is found at pages 10 and 11
of the record of proceedings. The court concluded that the child possessed
sufficient intelligence to give evidence on oath but it did not specifically state
that the child understood the importance of telling the truth. Therefore,
from the requirements of the law under section 122 of the Juveniles
(Amendment) Act, 2011, we are satisfied that the voire dire was defective.
We, therefore, allow this third ground of appeal.
In conclusion, the appellant having succeeded on all three grounds of
appeal, the total effect is that the entire appeal succeeds. The conviction is
quashed and the sentence set aside.
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……………………………………………..
F. M. Lengalenga
ACTING SUPREME COURT JUDGE
…………………………………………….
E. M. Hamaundu
ACTING SUPREME COURT JUDGE