Anthony Mwenya v People (Appeal no. 120 of 1990) [1991] ZMSC 84 (9 July 1991)

. ,,. . - . " ' I • :' . . "' ; \..;_t .. '\.i . i , ·. ~ ,,_. - . l " ( ) . .. ~ ~ l.. J . IN THE SUPREME COURT OF ZAMBIA AppeaI ·no. 120 of 1990 ,•. HOLDEN AT LUSAKA (Criminal jurisdiction) ANTHONY KilENYA .. Appellant . -v- THE PEOPLE ~ •• ' •!' ·._ t~ . Re~pondent ,,: '"i f . • ' Ngulube. o.c. J. delivered the judgment.of the court · ., 1 _ .. ,,,. .. :-- ) .. ' .. ,, .. , .. ' ' . . . ' . . . . . . . . . . . ·. . The appellant was sentenced to death. for mur~_~r.:· ... Jhe .particulars ,. were that on 13th June, 1988. at Samfya District. h_e murdered Chipulu. : Mapoma. Tl1e evidence accepted by the learned ·trialjudge was that ·, early in the. morning, around 08.00 hours on the fatal day. the appellant . was at the house of PWs 1 and 2 and was seated in a shelter. According to these witnesses as supported by PW3 the appellant had been drinking and from time -to time he was asking for money to-buy more beer from passers by. The deceased happened to come· along and ~-<according· to the prose~ution evidence, the appellant _qnce. · ag~in askedCfor mo;ey from him with which to buy _more beer1t T~e ·ap-~el-lant was ~:,~~lice offker ·· · and at the time was stationed at Mwenya police post. near.where this incident took place. The defence put up for. the_ shootl~g of the -,· deceased in the knee was that whpe the appellant interviewed the deceased who became annoyed with the result that a scuffle ensued for possession: of the gun and that it was during that struggle that the firearm went off .accidentally • • inv~stigating some· other matters~ . . ' '. ~ \' . • ..... ~ . . . .- ' -~ . ; t< , • ' • • . 1 . .' • '. i • • • • • . ' ' . . .r C' The learned trial judge dismisse~ the story ~~~t~there wa~ a • • · . ~ 1 tti., ' ' ,, ~. ~... V I l '' • . • , . ~ ' • ' ),,, ' .,< · - , ' ~ - ' • ' ,· \ ' .. .• ··1·l.' ..,,. .. , }\'.'. ) 1/4\ · • / •••••• ;scuffle . . . ' . •. I I I. ,, l I \ '- . '. \. struggle for the gun because PWs 1 and 2 who wer~ close by had given no evidence of any such struggle whatsoever. Qn behalf of the appellant Mr. Chanda has taken up two major grounds· of appea~. The first was that the learned trial judge misdirected himself in his approach to the evidence of PWs 1 and 2 who were grandparents of the deceased and who ought to have been treated as witnesses with a posslble bias. The submission was that because of the relations~ip their evidence stood to be considered on the same footing as for· accomplices or persons with a pos~ible interest of their own to serve. We do not wish to discuss at any great length the position of a witness with a possible bias save to point out that it is not correct to say that ttiey,_$.tand in the same position as accomplices or persons with a possible inter~st ~f their ow~ to serve. While the danger in the latter category of witness may very well be the f~lse implication of an accused person. that in the case of a biased witness :· _,. ls that there is .a tendency to colour. their evidence such that they would either exaggerate the portions which are unfavourable to an accused or underplay the portions which are favourable to an accused person. We agree that the learned trial judge did not specifically deal with the question of bias but nonetheles he did consider their evidence in full and correctly obierved that .they h~d not attempted to colour their evidence such as by claiming that they saw the appellant deliberately shoot the deceased person. We find, therefore, as Mr. Wangwor submits, that the failure to consider the issue of bias was not fatal in this case. · , ·- . •. • • • • I . ' ' ' . :, '· ' ' k .. ' '* . ~ ~ , , • ., . ..... ' The second ground alleged misdirection when the/ learned trial . ' t I ., ' • . . ' . . . ··. :~ . ·, .. -_ ... ' .. , , judge rejected the defence of ac.cident. It :5hou.iq E!(noted in this regard that i.>efora the evidence of any w1tness ·whatsoev8r can be useful in a case it must be .found to be otherwise credible since• evidence which is not credible would .not. even require support and would be incapable of being corroborate~ Qr .offering corroboration depending on the status of ·the witness called in · question.. The · · learned trial judge had considered the e~idence · of ~ws·_.1. and 2 .. and . from the careful analysis of such evidence we· do_ ~(?~ see how ·he can · be faulted for coming to the conclusion that there was no scuffle : whats9ever and that the exclamation by the deceased to the effect that he had been killed over his own money was properly taken into account as res gestae and together with the absence ·of a~y .evidence ''• \,(,. J. .,: ·- ·: ~ ~ • •, •• '. ~ : •· • . • ' ,4• , i - • .· ' ·- • • • •• . : : . ; # ' • • • • • • -· • • • • : ; • • • ' ' ' - i .. 3/ •••• .-.· of a r . ' I l I I I i i I I \J ' . I : ' I· of a scuffle as eliminating that defence. ,. Mr. Chanda also ·toQk up the;· ffnding by ·th_e · learn~d trial judge . . . ' . • . . . . .. . . . .... . ~ that there was no drunkenness sufficient to afford a defence. We have of our own motion taken up that issue and we ha·ve :considered ·a11 the surrounding circumstances 1n this particular case~ The three . witnesses who were at the scene were all agreed that the appellant appeared to have been drinking for a considerable ti~e that early in the morning. According to PW3, an orderly at the police post. the .-- .. ,: appellant was drunk. a_nd had previsously demanded money from him with which to buy more beer. In the circumstances and on the totality of : the evidence we find it incredil)le .. that the drun~en .appellant could have deliberately formedi:M'e intention to shoot the deceased person with a view to killing h!m or indeed with a view to causing him grevous bodly harm. At any rate, we entertain a doubt in the matter and we resolve such doubt in favour of the appellant·.· In the result we find that it would be unsafe to uphold the conviction on the capital charge. The evidence, however, amply justifies a conviction on the lesser charge of manslaugtfter. ~le, therefore, aJ}ow the . appeal against the conviction for murder; we quash that conviction and set aside the death penalty. conviction for manslaughter. case, . including the fact that a firearm was carried by. a: drunken· : · ·: :· .• .. • ..... :~-- policeman early in the morning when :· 1t w~s dangerous :to do so, we /. consider that the appropriate sentence is seven years.,1mpr1sonment with hard labour with effect from iqe ~ate ·o_f (\r!e~t.f,t:?,~/· . __ In their place ~e 'substitute a :, . In view of the circumstances of the ·:-, .. ·; -- --~-· ••.:; :t:·-:- -~ . • '", . - ~ . . ,i- ·-:- ~ ,, . ' • ,-. ',. ; l' . ' • ' .- .. ' • ) • .,. .. ... ., . ,_ .. -· .·: ..... -.. - .. l: '''{ . ,. \ ,. I ;1: :t:~. :~. ! -~ ~ 1'1~1i}, 1 (. '"'· ,:tt .. ' 'tlill,''? .,1, ·~-···. :jt1~ .= • • . W,t Ngulube ~:.f-", •• . DEPUTY' CHIEF ' JUSTICE , .. ' ... .. , M.s~'I Cha'ira· ·· :j •1/~1.,, SUPREME,COURT JUDGE I' ' I I ' . . '· )'' 'i' ... . 1, \