Anthony Mwaba Mpundu v The People (Appeal 149 of 2016) [2018] ZMSC 362 (7 December 2018)

J I IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Crim.inal ,Jurisdiction) APPEAL N0.149/2016 BF. TWEEN: ANTHONY MWABA AND THE PEOPLE APPELLANT RESPONDENT Coram: Muyovwe, Hamaundu and Chlnyama , JJS On 2 nd October, 2018 and 7d• December, 2 018 , Por the appellant : Mr M. Mukonka, Legal Aid Counsel ror Lhe respondent : Mrs A. N. Sit-tli Deputy Chief State i\dvocat c JUDGMENT HAMAUNDU, JS, delivered the Judg1ncnt of the Court. CH~,es referred lO: 1. Ndakala v The People 119741 ZR 19 2 . Emmanuel Phirl & Others v The People (19781 ZR 79 3. Haonga & Others v The People ( 19761 ZR 200 4 . Nsofu v The People ( 1973) ZR 287 Ls;gisla,tion referred lo: The Penal Code, Chapter 87 or the Laws or Zambia J 2 The appellant appeals against his conviction by the subordinate court of the offence of defilement. On 301" April, 20 15, the appellan l was take n before th e subord in a te cou rt a t Luwingu, on a c har ge of defileme nt contnu-y to Section 1 3 8 (1) of the Penal Code, Chapt er 87 of the Laws of Zamb ia . It was alleged that in the month of January, 2015, 111 Luwingu, th e appe llant had cum a l knowleclgc of a girl below t he age of 16 years. The appellant denied the a llegation. The evidence which the prosecution presented before the court below was this: The vic tirn wa s u gi rl of 12 years of age, and was re lated to the appe llant. On 18th January, 20 15, the victim informed PV/2, h er aunt, that the appellant had had carnal knowledge of her, as a resu lt whereof she was feeling pain on her private pans. ln lun1, the victitn 's au nt r epealed the complai nt to t he victim's mother, PW I . The !alter immediately took the complaint to membe rs of the local con1munity crime prevention unit. The appellant was a pprehended a n d taken to the local police station, where h e was charged for defilernent. J 3 Al th e t rial , th e victin1, particularly, gave a detailed account of the sexual encoun ters she alleged to have had wi lh the appellant. She explained how, on lh<: first occasion, the appellant accosted her in t he bu:;h, Lied her up and then defi led her. She further told the court tha t a few days late r the appellant accosted bcr again in the bush and defiled h<:r. She said that on this second occasion :;he decided to infonn he r aunt about the appellant's misdeeds. In defence \he a ppellanl den ied ha ving h ad any sexual encou nter with th e victirn. lie said th at he could not have had the opportunity to meet with, and have carnal knowledge of, the victim because he used Lo re port for work eve ry morning, and only returned hornc ,uound 16.00 hours ea ch day. The trial court found that medical evidence corroborated the victim's tes timony that she had been defiled . As regards corroboration of the victi_m's testimony that ii was the Oppellant who had de filed her, 1 he court said tJ1at it fou nd no corroboration in the form of testimony or eye-\\~tness accounts. However, the court identified the presence of some specia l and compelling grounds which sa tisfied it t.hat lhc danger th a t t he viclirn cou ld be falsely implica ting the appellan t had been excluded. Accordmg 10 tl1e trial court, one such ground was that there was no motive for the victim JO to falsely a ccuse the appellant of having sexually assaullcd her·. The other ground which the court identified was that of oppormnity: T he cour l observed that lhe victim had alleged thut the 0ppellant had defiled her in broad daylight. The court went on to hold that even assuming that the appellant Ullcd to go for work, as argued by h im, th e fact th a t he used to come back between I :i:00 and 16:00 hours provided him the oppormnity lo sexually assault the victim in broad daylight as alleged. For these reasons the trial court convicted ll1c ap pellant of the offence of defi.lexnen t. Upon committal to the High Court for sentence, th<.: appellant was sentenced to 26 yc::irs imprisonment with hard laboltr. The appellant advanced only one ground of appeal before us. The ground is that the magistrate erred in law and fact when he ruled out me danger of false implication and convicted the a ppellant. On behu.lf of the appellant, the appeal was argued on the basis of written heads of ctrg1-1ment. The cntX of the arguments wa"' that, in th is cai;c, the clanger of false implication of the appe lla nt h ad not been ruled out for the following reason!!: (i) that the viclirn failed to make an early complaint of the a lleged sexual en counters; and, (ii) that the victun told a lie during her testimony ) 5 With regard to the making of a complaint we were rcfcrTcd to two cases; na mely, t he case of Ndakala v The People''> where we held: "-the corollary to the principle t hat evidence or early complaint Is admJsaible to show consist ency is that the failure to make a.n early complaint muat be weighed in the scales 9.;gainst the prosecution case". The second case ci ted was that of Emmanuel Phiri & Others v The PeopJel•>. This was a case which did not involve a sexual offence, al all. So, we wonder where counsel for the appellant got the holding tha t is purported to have been made in that case. However, procccdiJ1g on the holding in Ndakal a v The People , the appellant poinLCd out that there were three alleged sexual assaults in this case which the proseculrix did not immediately report, but only came to report then1 on 18<h January, 2015; .i nd that, even then, th e record was silenL us to how niany days or weeks had elapsed after the la st sexual assault. It was counsel's argument that, m the circumstances. the failure to make an early complaint shoukl have been weighed against the prosecution's case. J 6 Regarding the alleged lie, it was poin ted oul r.hat bo th the mother and t he aunt of the prosecutrix told the cou,·t that the victim had told I.hem t.hat the appellant had sexual intercourse ,,,.ith her on two occasions. IL wus pointed out also th ul even the victun hersel f told 1·he court that the appe lla nt had sexual inLCrcourse with her on two occasions; and yet as she narrated the events, she recounted three occasions on which s he had sexual encounters with the appellant. Accordi ng to counsel ror the appe lla nt, this 1nem1s that th e prosecutrix lied to her mother, her aun t and to the court. The appe llant particularly refcn·ed us lo the case or Haonga & Ors v The People PI w here we held that, where a 'witn ess has been found to be u ntruthful on a material point, t11e weight to be attached to I.he remainder of his e"idcnce is reduced. \Vith the foregoing observations and authorities, cou nsel argued th a t Lhe trial court's s tatements that; (i) the appellnnt failed to challenge the victim on identity, and, (ii) that the appellant's testimony in h is defence was an arte rt11ought were serious n1 isdirec lions . \Ve we re urged lo allow the appeal. J1 In response to the above argumen ts the stale argued as follows: first, that there was ear ly complaint in this C;J:;e. That this wa,; borne out by the fac t that when the victim's aunt exami ned the private parts, upon rece iving the complaint, s he observed some sores thereon. That even the doctor who examined the child observed bruises and cxtren1e tende rness on her private pa rts. According to the State this exemplified th e fact that the sexu,ll assault had been fairly recent at the time that it was reported. \Ve were f1lso urged to consider: (i) the victi,n 's tende r age; (ii) the relationship she shared with the appellant; and (iii) the threaL~ is::;ucd to her after the a ssault in order for us to understand the rea:,on why the sexual assau lts were not reported there and then . On the a ppellant's contention I.hat the victim lied on the nu1nbcr of occas ions t hat the a ppellant. was a lleged to have defiled her, the State disagreed with the appellant. It was submitted that what the appellan t contends to be a t hird sexual assault, u,; narrated by the victin1, was actually not. The State pointed ou t that the victim had clearly stated that, al the beginning, the appellant hurl ,nerely molested he r by way of a lletnptin~ to kiss her iii hil'; JS kitchen. Other.vise, argued the Stale. she was con!'listent m her cestin1ony lha t the sexua l a,;saults were on two occasions. With the foregoing arguments, 1J1c State urged us to uphold the appellant's conviction. We have heard the arguments frorn both sides. \Vhile it is trite that a late complaint will affect the weight to be attached to a complainant's testimony, it should be borne in mind lhat this rule was designed prim arily for adult complainants in sexual offences . Hence when one looks, for example, at the case of Ndakala v The People1' 1, the case involved an adult complainant who, after the a lleged rape, went with a female friend to a bar, instead of im1nediatcly laying a complaint about th e rape. fn th is case, as rightly argued by the State, we are dealing wim a child of tender years who can easily be scared by mreuts to herself if she reveals the sexutd assaults . fn this casr: the vict im tes lilicd that the appellant threatened lO kil l her if she told her momer about tl1e sexual assaults. On the a ppella nt's conten tion that lhe victim gave inconsistent stories about the number of times that the appella nt sexually assaulled her, we agree " rith the State that the defence have misrepresented th e victim'» Lcst.imony. The viclirn 's a w1t Lold the J9 court that the victim reported two sexual assaults to her. 'Inc victim's mother also snirl that she wa~ inform ed or lwo sexual assaults. In her testimony, the victim recounted Lhrce incidents with the appellant; the fll'Sl incident was when the appellant sent the victim in to h is house Lo fetch water, but then he followed a nd attempted to kiss her. The ::;eoond and third incident!'. were when the actual s=-ual intercourse took place. So, the victim was very consistent as to the number of times Lhat she was sexually assaulted. For Ll1e foregoing reasons, we find no merit in both arguments by the appel lant and, conseque ntly, Lhc ground of appeaJ has no merit either. \Ve would )jke to take this opportunity to com.mend the trial magistrate for the correct manner in which he approached the issue of corroboration. His approach showc<l that he was alive to the fact that, iJ1 cuscs requiring corroboration, Lhe court first looks for corrobora1ive evidence. whether in terms of testimony of other witnesses or in terms or Lhe real evidence produced; and that when that is lacking, the courl may now look to any l!pecial and compelling grounds which will satisfy it that the danger of false implication has been excluded. FiJ1ally , the trial magistrate J 10 exh ibited h is awareness of th e fact th at il is nol the cor roborulivc evidence, or s pecial and compelling grounds, upon which an accused is convicted, but on the testimony of the suspec t witness h im se lf or herself; the cor roborative evidence, or the special and compelling grounds , being merely used to sa tisfy t he court thul it is safe to rely on the testimony of the suspect witness, as we held in the c:ise of Nsofu v The Pe o ple1•1. AU in a ll, th is appea l Jacks me rit a nd s tan ds d ismis sed. , ~~~ ........ . E. N. C. Nluyovwe S UPREME COURT JUDGE - > ~ - ................. ~ -0. ........... . E. M. Hamaundu SUPREME COURT JUDGE ............ J ~,:;'.;;; .......... . SUPREME COURT JUDGE