Mwansa and Ors v People (Appeal 107 of 1998) [1999] ZMSC 113 (1 September 1999)

APPEALS NO 107,108,109, 110, 111 AND 112 OF 1998 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: AMIDEUS MW ANSA ALEX B WALYA JONATHAN CHISHIBA BENNY KALABA MUS AMP A COLLINS KAPENDA APPELLANTS AND THE PEOPLE RESPONDENT CORAM: Sakala, Muzyamba, Lewanika, JJS 16th February and 1st September, 1999 For the 1st and 3rd Appellants: Professor Mvunga of Mvunga Associates For the 2nd Appellant: L. P. Mwanawasa S. C. of L. P. Mwanawasa & Co. For the 5th Appellant: F. Neguzyambo, Acting Director of Legal Aid For the Respondent: Mrs. E. M. Chipande, Assistant Principal State Advocate JUDGMENT Lewanika J. S. delivered the Judgment of the court. The appellants were convicted of the offence of aggravated robbery contrary to Section 294 (2) of the Penal Code; the particulars of the offence being that, the appellants, on the 3rd June, 1997 at Mansa in the Mansa District of the Luapula Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with a firearm, did steal from Aggrey Chilangwa KI50,000.000.00 in cash the property of the Zambia National Commercial Bank, and at or immediately before or after the time of such stealing, did use or threaten to use actual violence to the said Aggrey in order to obtain or retain the said property. The appellants were sentenced to death and have appealed against the said conviction. At the time that we heard the appeal we were informed that the 6th Appellant had passed away. The evidence adduced by the Prosecution in the trial court in brief is that on the 3rd June, 1997 P. W.5 an employee of the Zambia National Commercial Bank at Kawambwa was sent to the Mansa branch to collect some money for the Kawambwa branch. He was accompanied by a driver and an armed police officer. He collected the sum of KI 50 million in cash in new notes which was put in a metal trunk with two locks. On their way back to Kawambwa they were ambushed by a gang of about four (4) armed men dressed in khaki and green military uniforms who fired on them, one tyre was shot out and the driver lost control of the vehicle which overturned and rolled. P. W.5, the driver and policemen were thrown out of the vehicle and sustained various injuries for which they were treated at the hospital. None of them was able to recognise any of their assailants and the trunk in which the money was, was stolen. The matter was reported to the police on the same day and investigations were carried out. Following investigations on 6th June, 1997 the appellants were apprehended. The 2nd appellant was apprehended in a vehicle from which the police recovered an A. K. 47 rifle and K5 million in cash in a plastic bag. The 2nd appellant led the police to his house from where the police recovered K43 million contained in a sack from his father. On 7th June, 1997 the 2nd appellant led the police to the house of the 5th appellant whom he said had lent him the rifle, an accusation which the 5th appellant denied. The 1st appellant on being apprehended led the police to his house where they collected his wife who led them to a house where they recovered K3.060 million from a friend of his wife. The 3rd appellant on being apprehended led the police to his farm where the police recovered K66 million in cash and the trunk in which the money was carried, had been buried in the ground. The 4th appellant had been apprehended in the company of the 1st and 3rd appellants but nothing was recovered from him. On being put on their defence the 1st, 2nd, 3rd and 4th appellants elected to remain silent and did not call any witness. The 5 appellant gave evidence on oath and denied any involvement in the robbery and denied having given the A. K. 47 rifle to the 2nd appellant. Professor Mvunga who appears for the 1st and 3rd appellants has advanced three grounds of appeal, viz:- 1. That the learned trial Judge erred at law in finding that the failure by A. 1 and A.3 to offer an explanation meant that the said accused persons were part of the gang that robbed P. W.5 of the K150 million. In arguing this ground counsel said that whilst it is trite law that if a person is found to be in possession of property suspected to have been recently stolen, then that person needs to give an explanation which need not be true, it does not follow that in the instant case the only inference of guilt is that of the armed robbery. He said that the other alternative and quite reasonable possible inference is guilt in relation to the offence of being in possession of property reasonably suspected of having been stolen or unlawfully obtained. That taking part in the aggravated robbery is therefore not the only reasonable inference in the circumstances. He referred us to the case of MASEKA VS. THE PEOPLE, 1972 Z. R. p. 13 on the point. He said further that there is no evidence on record that A.l and A.3 were seen at the scene of the crime and that the evidence that there is, is that money was recovered from them. 2. That the learned trial Judge misdirected himself at law by glossing over the issue of whether the weapon used was a firearm within the meaning of the firearms Act and rushing to the conclusion that an aggravated robbery had occurred. In arguing this ground counsel said that the evidence of the prosecution witnesses particularly P. W.7 and P. W.8 was that there was heavy firing at the van carrying the money by four or so armed robbers and yet there is no corroborative and circumstantial evidence such as empty cartridges on the scene and bullet holes at the targeted van. He further said that it is a dereliction of duty on the part of the police not to have taken finger prints on the gun found with A.2 and as such there is a presumption at law that there were finger prints on the said gun which did not match the finger prints of any of the accused person. He referred us to the case of JOHN TIMOTHY AND FASTON MWAMBA VS. THE PEOPLE, 1977, Z. R. P. 394 on the point. He further said that there is no evidence on record that the gun found with A.2 is the gun actually used in the robbery and in this regard the evidence of A. 5 was wrongly discounted as he testified that he left his weapon in A.2’s office on 5th June, 1997 in order to go and draw some money from the bank. He also said that whereas there was evidence that the Nissan van belonging to A.3 was seen driving towards the scene of the crime and again seen driving from the scene of the crime, there is no conclusive evidence on record to show that A.3 took part in the robbery as the said van was not seen at the actual scene of the crime or anywhere in the surroundings immediately before or after the robbery. 3. That the learned trial Judge erred at law in admitting in evidence on a number of instances utterances or statements of accused persons arising from interrogation by police without a warn and caution having been administered. In arguing this ground counsel said that the effect of admitting such statements and utterances is to cause prejudice against the accused persons in the conduct of the trial. That the statements and utterances were made in very oppressive circumstances of long hours of interrogation and torture and should therefore be completely excluded. He said that his clients’ position is reflected in their warn and caution statements when they denied the charge. He further said that to counteract the prejudice of these utterances and statements, he was inviting us to draw the inference that in similar oppressive circumstances in which the money was recovered, the Zambia National Service uniforms and helmets would have been shown by the accused and recovered by the police. He submitted carrying the money although it was said^a bullet was fired in front of the windscreen and that the medical reports of injuries produced at the trial do not say anything about the injuries being related to gun shots. Further there were no bullet holes found on the van and what the Chief Investigations Officer saw on the scene of the crime were scattered pieces sugar and bread. He said that if A.l and A.3, amongst others, were to be found guilty of any offence, it would not be aggravated robbery but something else. He submitted that A.l and A.3 are not guilty of aggravated robbery and the sentence of death should be quashed and set aside. Mr. Mwanawasa, S. C. who appeared for the 2nd appellant submitted that the learned trkal Judge erred in his consideration of the law when he stated at page J.6 that it is “trite law that if a person is found in possession of property suspected to have recently been stolen then that person ought to give an explanation which need not be true.” He said that the correct position is that where an accused person is found in possession of property recently stolen fails to give an explunation, an inference of guilt can be drawn if it is the only reasonable inference. He said that on the facts of this case, a finding of guilt of the offence of aggravated robbery is not the only reasonable inference which can be drawn. Counsel further argued that the learned trial Judge erred to have accepted in evidence statements alleged to have been made by the 2nd appellant and his co-accused which were not made under warn and caution. He further said that P. W. 11, tye 2nd appellant’s father, was an accomplice or in any event a witness with an interest to serve since he was found with the suspected money and that even though he was the appellant’s father, there was still an onus on the learned trial Judge to have warned himself against the danger of accepting his testimony against the 2nd appellant and convicting him on it unless it was corroborated which it was not. He said further that the evidence of P. W. 12 that he told the police officers that the 2nd appellant had informed him that he was returning the firearm to the 5th appellant who had lent it to him so that he could kill a cow ought not to have been received in evidence as it was hearsay and a statement made to police officers in the absence of the 2nd appellant. He also said that the evidence that the 2nd appellant led police officers to his father whilst it is admissible on its own, what the appellant is alleged to have said before the leading took place should have been under warn and caution and that in any case such leading cannot raise the inference that the appellant was involved in the actual robbery. Further that there was no credible evidence that the money found on the 2nd appellant or on P. W.l 1 was the same money which was robbed and the learned trial Judge erred in convicting the appellant when he did not even make a finding whether the money produced to the court came from the robbery. Mr. Neguzyambo who appeared for the 4th and 5th appellants submitted that with regard to the 4^v^t^1yt0b0sl2vlP appellant the learned trial Judge erred in convicting the appellant o: own confyssion as he should have used his discretion to exclude the confession as it was taken in oppressive circumstances. He said that notwithstanding the ruling in the trial within the trial the evidence on record is that the appellant had been subjected to long periods of interrogation prior to the statement being record)from him and that the learned trial Judge ought to have used his discretion to exclude it. Apart from the statement that there was no evidence linking the 4th appellant to the commission of the crime. Counsel said that with regard to the ^(^Uth app^^ there was no evidence linking — — him to the participation of the crime save for th^Jirearm which he said he had left in A.2’s restaurant when he went to draw some money from the bank. He said that the inference drawn by the learned trial Judge was not the only reasonable inference. Mb. Chipande who appears for the State said that she did not support the yconviction of 4th and : 3rd appellants. Initially she had said that she supported the convictions of armed aggravated robbery but later conceded that evidence of use of a firearm was lacking and that she would support a conviction of aggravated robbery contrary to section 294 (1) of I the Penal Code. In reply to the submissions made by counsel for the appellants Mrs. Chipande agreed that there was no onus on the appellants to give an explanation as to how they came to be in possession of the money but that odd coincidences can lead to a reasonable inference of guilt on the part of the appellants. She said that the evidence on record is that the 3rd appellant was on the day of the robbery seen by P. W.6 driving towards the scene of the robbery and driving back at a high speed. The third appellant also led the police to the recovery of K66 million in brand new notes. The 1st appellant also led the police to the recovery of K3,060 million in brand new notes. Further to that the 1st and 3rd appellants led the police to the recovery of the trunk in which the money stolen during the course of the robbery was being carried. Sye said that as y*p+lXfor the 2ndy0Y evidence on record is that he was found with K5 million in a motor vehicle and that he led the police to the recovery of K43 million from his father’s house. She also referred us to the finding on J6 of the judgment that the money recovered from the appellants had serial numbers which closely followed each other raising the inference that it came from the same source. She urged the court to apply the proviso and convict the appellants of aggravated robbery contrary to section 294 (1) of the Penal Code. In reply Prof. Mvunga said that although the 1st and 3rd appellants elected to remain silent, the law requires that the inference of guilt must be the only reasonable one. In reply Mr. Mwanawasa said that the evidence of P. W.l 1 is that of an accomplice and the fact that money was recovered from the 2nd appellant through P. W.l 1 does not mean that the only reasonable inference there could be drawn was that the second appellant participated in the robbery as he could have been convicted of receiving stolen property. He said that the position of the 1st and 3rd appellants should be distinguished from that of the s2nd appellant. We are indebted to counsel for the submissions made which have been of great assistance to us in arriving at our decision in this appeal. There is no doubt from the evidence on record that a robbery took place on the 3rd June, 1997 during the course of which KI 50 million in mint notes was stolen from the complainant. What concerns us is whether or not there was evidence on record that a firearm was used in the course of the robbery. The evidence on record is that the vehicle carrying the money was shot at from the front and that the bullet made a hole in the windscreen and passed over the head of the driver. There were further shots fired at the vehicle one of which punctured a tyre causing the vehicle to overturn. P. W.21 the investigating officer visited the scene of the crime on the same day as the robbery but did not recover any spent cartridges at the scene having found only scattered pieces of bread and sugar. There was no evidence of any bullet holes in the body of the vehicle and the injuries sustained by the occupants of the vehicle arose out of trauma when the vehicle overturned. Admittedly a firearm was recovered from the 2nd appellant on 5th June, 1997 which according to the evidence of the ballistics^had been recently fired but in the absence of any spent cartridges recovered from the scene being available for comparison with test cartridges fired from the gun in question there was no evidence that the gun recovered from the 2nd appellant was the firearm used in the robbery. We are satisfied therefore that there was no evidence on which the learned trial Judge could have convicted the appellants of aggravated robbery contrary to section 294 (2) of the Penal Code. Both Mr. Mwanawasa and Prof. Mvunga have criticised the finding of the learned trial Judge when he stated in his judgment that, “it is trite law that if a person is found in possession of property suspected to have recently been stolen then that person ought to give an explanation which need not be true.” This exposition of the law by the learned trial Judge is not correct, the correct position was set out by CLAYDEN, F. J. in the case of R VS. FANWELL, 1959 (1) R & N, 81 which was quoted with approval in the case of MASEKA VS. THE PEOPLE, 1972, Z. R. 9 which was cited to us by counsel for the appellants. In that case Clayden, F. J. had this to say:- “That case was a case of receiving. But what was said is of course equally applicable to any other case in which guilt may be inferred in such circumstances. Involved in this statement of the law are matters concerning the general principles applicable to inferences in the criminal law. The inference “may” be drawn; not must. Such a case must be treated uas any other case in which guilt is found by inference. The inference must be the only reasonable inference. And if a person is in possession of property recently stolen and gives no explanation the proper inference from all the circumstances of the case may be that he was the thief, orybroke in to steal and stole, or was a receiver, or even despite no explanation, cannot be said beyond reasonable doubt to be guilty. And if explanation is given, because guilt is a matter of inference, there cannot be conviction if the explanation might reasonably be true, for then guilt is not the only reasonable inference. It is not correct to say, as was said in this case, that the accused must give a satisfactory explanation. Absence of an explanation which can be regarded as reasonably possible is one of the facts on which the inference of guilt may be based. Mere possession of property recently stolen is not enough, for there may always be a reasonable explanation of such possession, and until it appears that one is not given, the extra fact to dispose of that possibility is not present to found a finding of guilt by inference.” BARON, J. P, as he then was said in the MASEKA case:- “This passage requires no elaboration. I would only emphasize one point which is all too frequently not appreciated; even in the absence of any explanation, either at an earlier stage or during the trial, the inference of guilt cannot be drawn unless it is the only reasonable inference to be drawn from all the circumstances.” We now have to consider whether if the leayXmed trial Judge had properly directed himself, he would have come to the same conclusion on the evidence before him. We propose to deal with the 1st and 3rd appellants together. The evidence on record is that P. W.6 who had known the 3rd appellant before saw him driving his van on the day of the robbery with four or five passengers. P. W.6 was repairing a puncture. Later the Mazda van carrying the money passed him and drove in the same direction as the 3rd appellants vehicle. Later he saw the 3rd appellant’s vehicle drive back at great speed and the distinctive birds on the side of the vehicle had been covered with papers. After mending his tyre he drove towards the direction where the 3rd appellant’s vehicle was coming from and found the Mazda van which had been ambushed and he took the injured persons to the hospital. In the evening of the same day P. W. 9 saw the 1st and 3rd appellants together in the same vehicle which was identified by P. W.6. On 5th June, 1997 the 1st, 3rd and 4th appellants were apprehended at a bottle store and the appellants’ van was also taken into custody. On 6th June the 1st appellant led the police to his house and the sum of K3.06 million in new notes was recovered. On the same day the 3rd appellant led the police to his farm where K66 million in new notes was recovered. On 7th June, 1997 the 1st and 3rd appellants led the police to the 3rd appellant’s farm where the trunk which was used to carry the money from the bank was uney*p+lXarthed and recovered. The 1st and 3rd appellants when put on their defence elected to remain silent, which they were entitled to. As for the 2nd appellant the evidence on record is that on 6th June, 1997 late in the afternoon he requested P. W. 12 to accompany him to a restaurant to pick up a gun that he had borrowed to slaughter a cow. P. W. 12 went with him to the restaurant where he picked up the gun . On their way back to the 2nd appellant’s home they were stopped by policemen who requested them to accompany them to the police station. At the police station the police confiscated the gun and a plastic bag which contained K5 million in mint notes. The police apprehended the 2nd appellant and on the same day he led the police to his house where they recovered K43 million in mint notes which was contained in a sack. The 2nd appellant also elected to remain silent. The 4th appellant was convicted on the basis of a disputed confession which was admitted in evidence after a trial within a trial. He was however apprehended in the company of the 1st and 3rd appellants. He also elected to remain silent when put on his defence. As for the 5th appellant the only evidence against him, if we may call it evidence, is that he was implicated by the 2nd appellant who told the police that he had obtained the gun from the 5th appellant. When confronted by the police, the 5th appellant denied having lent the gun to the 2nd appellant. He also gave evidence on oath and explained how he came to leave the gun in the 2nd appellant’ restaurant. We have outlined the evidence against the 1st, 2nd and 3rd appellants and the circumstances in which they were apprehended and the money recovered from them and we are satisfied that even if the learned trial Judge had properly directed himself, the only reasonable inference he would have arrived at in the circumstances is that they participated in the robbery that took place on the 3rd June, 1997. As for the 4 appellant his confession statement was admitted in evidence after a trial within a trial and his statement contained a detailed account of the events and his participation prior to the robbery and after the robbery. We are satisfied that the learned trial Judge properly admitted the confession and that he was entitled to convict the 4th appellant on the strength of the confession. As for the 5th appellant there was no evidence upon which he could have been convicted and we would allow his appeal and acquit him and order that he be set at liberty forthwith. Both Professor Mvunga and Mr. Mwanawasa had submitted that the learned trial Judge erred at law in admitting in evidence on a number of instances, utterances or statements of accused persons arising from interrogation by police without a warn and caution having been administered. We have examined the judgment of the learned trial Judge and we are satisfied that the learned trial Judge did not rely on the statements or utterances in convicting the appellants and that therefore no prejudice could have been occasioned to the appellants. The sum total of our judgment is that for the 1st, 2nd, 3rd and 4th appellants we would allow their appeals against conviction of aggravated robbery contrary to section 294 (2) of the Penal Code and set aside the sentence of death. In its place we substitute it with a conviction of aggravated robbery contrary to Section 294 (1) of the Penal Code. On the question of sentence, the evidence on record is that this was a well planned and executed robbery during the course of which a considerable amount of money was stolen. Although some of it was recovered an amount in excess of K30 million has not been recovered. We would be failing in our duty if we did not impose a sentence that would deter others from attempting to do what the appellants did. We are therefore sentencing the appellants to 25 years imprisonment with hard labour from the date of their arrests. E. L. Sakala SUPRME COURT JUDGE W. M. Muzyamba SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE