Justine Simwinga v People (Appeal 120 of 2017) [2018] ZMSC 423 (6 June 2018)

Selected Judgment No. 20 of 2018 P. 723 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 120/2017 Coram: Phiri, Muyovwe and Chinyama, JJS, on 8th May, 2018 and 6th June, 2018 For the Appellant: Mr. K. Muzenga, Deputy Director, Legal Aid Board For the Respondent: Ms. G. Nyalugwe, Deputy Chief State Advocate JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Phiri Macheka vs. The People (1973) Z. R. 145 2. Gift Mulonda vs. The People (2004) Z. R. 135 3. Emmanuel Phiri vs. The People (1982) Z. R. 77 4. Machipisha Kombe vs. The People (2009) Z. R. 282 5. Dorothy Mutale and Richard Phiri vs. The People (1995-1997) Z. R. 227 6. Sipali Chibozu and Chobu vs. The People (1981) Z. R. 28 Jl Legislation referred to: 1. Section 131A of the Penal Code Cap 138 of the Laws of Zambia 2. Section 122 of the Juveniles Act Cap 53 of the Laws of Zambia P. 724 The appellant was tried and convicted of the offence of defilement by the Nakonde Subordinate Court. The case was then remitted to the Kasama High Court for sentencing. The appellant was sentenced to 15 years imprisonment with hard labour. He appealed against conviction and at the hearing of the appeal we set him at liberty forthwith and promised to give our detailed reasons later and we do so now. The brief facts are that the prosecutrix was home alone when the appellant called her to go and get some rice from his house. When the prosecutrix reached the appellant's house, he pulled her inside and defiled her in his bedroom. The appellant threatened to kill her if she revealed that he had defiled her. According to the prosecutrix, the incident happened when her parents had gone to church and there was no one within the vicinity. After a few days, the prosecutrix went to school where she shared her ordeal with her friends who in turn reported the matter to the teacher. The father J2 P. 725 to the prosecutrix testified that his daughter's teacher called him to inform him of what had transpired. The appellant was summoned and he admitted that he had defiled the girl. The matter was reported to the police and medical examination confirmed that the prosecutrix was defiled. According to the arresting officer, the appellant was interviewed in the presence of his brothers and the appellant pleaded with him so that the matter could be discussed between the families so that he could pay compensation. In terms of establishing the age of the prosecutrix, the arresting officer produced the school register which according to him confirmed that at the time the matter was reported to the police, the prosecutrix was 13 years old. In his defence, the appellant explained that on 11th February, 2013 the father to the prosecutrix picked him up from home and took him to the police station where he was told that he had defiled the prosecutrix. The appellant denied the allegation. According to J3 P. 726 the appellant, there were attempts to withdraw the matter from the police but this never materialised. The trial magistrate, in his judgment, was satisfied by ocular observation coupled with the school register that the prosecutrix was a child in terms of Section 131A of the Penal Code. The trial magistrate found that the prosecutrix was defiled as per medical evidence. He addressed his mind to the question of corroboration as to the identity of the offender and found that the prosecutrix had no motive to implicate the appellant. Further, the trial magistrate questioned the credibility and demeanour of the appellant who in his evidence disputed that he negotiated for a settlement of the matter at the police. Taking into account all the circumstances of this case, he found the appellant guilty as charged and convicted him. On the 24th March, 2015 the appellant launched his appeal before this court against conviction. Counsel for the appellant filed three grounds of appeal. In ground one and two Counsel contended that the trial court erred when it proceeded to receive the evidence J4 p- 727 of the prosecutrix before satisfying itself as to the actual age of the prosecutrix and when it convicted the appellant in the absence of evidence proving the age of the prosecutrix. Lastly, ground three attacked the conviction alleging that there was no corroboration as to the identity of the offender. Counsel filed heads of argument which he relied on entirely. Mr. Muzenga the learned Deputy Director made a brief augmentation to buttress his written submission. Ground one and two were argued together. In sum, the argument is that there was no evidence before the trial court which established the age of the prosecutrix. Counsel argued that following the amendment to Section 122 of the Juveniles Act, the requirement to conduct a voire dire is now tied to the age of a child witness. That, therefore, whether the trial court should conduct a voire dire depends on the prosecutrix having attained the age of 14 years. It was submitted that to ascertain this, the trial court must inquire as to the exact date of birth of the prosecutrix adding that in this case the trial court fell into error when it neglected to ascertain the exact birth J5 P. 728 day and birth month of the prosecutrix. That, therefore, the prosecutrix's evidence should be discounted on this account. Counsel found solace in the cases of Phiri Macheka vs. The People1 and Gift Mulonda vs. The People2 in which this Court pronounced itself on the fact that in defilement cases the age of the victim is a crucial and very essential ingredient. Counsel drew our attention to the evidence of the prosecutrix who simply gave her age as 14 years and her father who was PW2 did not testify as to the age of his daughter. It was argued that the school register should not have been admitted in evidence as it did not provide proof as to the age of the prosecutrix; PW2 did not confirm that he was the source of the information contained in the school register; he did not refer to it or identify it; the chain of custody of the Register was not established and therefore, its contents should be disregarded. It was submitted that it was erroneous for the trial court to use its ocular observation to determine the age of the prosecutrix especially that this was a borderline case. Counsel contended that J6 P. 729 ocular observation should only be permitted in cases of small babies. Counsel urged us to allow the appeal on these two grounds. Turning to ground three, it was submitted that there was no corroboration as to the identity of the offender and that a reading of the judgment of the trial court leaves one in a quandary as to the corroborative evidence that he relied on. The evidence of the prosecutrix shows that at the time that she was defiled, she was alone at home and there is, therefore, no corroborative evidence to support the prosecutrix’s allegation that it was the appellant who defiled her and there are no special and compelling grounds to rule out the danger of false implication. The trial court was accused of failing to warn itself of the dangers of convicting on uncorroborated evidence which was a misdirection. Counsel relied on the cases of Emmanuel Phiri vs. The People3 and Machipisha Kombe vs. The People4 in which we have pronounced ourselves on what constitutes corroboration. It was submitted that in the absence of corroboration or something more, the conviction is unsafe and must be quashed. J7 P. 730 In his brief augmentation, Mr. Muzenga submitted that this court should give guidance to trial courts. In response, Ms. Nyalugwe the learned Deputy Chief State Advocate indicated from the outset that she was not supporting the conviction and was in total agreement with the position taken by the learned Deputy Director of Legal Aid. Ms. Nyalugwe opined that the evidence of the prosecutrix must be discounted and that the net result is that ground three must fail as it is inconsequential whether there was corroboration or not. All in all, Ms. Nyalungwe took the view that the discrepancies should be ruled in favour of the appellant adding that had this case been properly investigated, the outcome of this appeal may have been different. The issue for our determination in this appeal is whether the trial magistrate was on a proper path when he put the prosecutrix on the stand without first establishing her age. We have been urged by the learned Deputy Director to give guidance to trial courts to ensure that before a prosecutrix or child of tender years is J8 P. 731 put on the stand, the exact age is established to meet the requirement in Section 122 of the Juveniles Act. It is trite law that Section 122 states that a child below the age of 14 years who is possessed of sufficient intelligence and understands the duty of speaking the truth shall give evidence on oath. In our view, it is desirable that at trial the prosecution first calls the parent or guardian to establish the age of the child before calling the child to the stand. The child cannot prove his/her own age. Trial courts must guard against making wrong conclusions as to the age of the prosecutrix without direct evidence. In this case, the prosecutrix who was PW1 in the trial was called to the stand and sworn in and proceeded to give her evidence. She gave her age as 14 years. Her father who was PW2 did not say anything about the age of his daughter and neither was he called upon to produce any document to establish the age of his daughter or to confirm the information in the school register which incidentally was brought in by the arresting officer. We agree with learned Counsel for the parties that the best evidence on the age of J9 P. 732 the child is from the parent or guardian. Indeed, we have pronounced ourselves on the issue of the age of the victim in defilement cases in a plethora of cases including those cited by learned Counsel in this appeal that age is an essential ingredient in a charge of defilement. By its very nature, the offence of defilement demands that the age be established beyond reasonable doubt because it involves children under the age of 16 years. We must be quick to point out, however, that in cases where the offender is a member of the family; is in a close relationship to the family or is somewhat associated with the family or the child, it cannot be argued successfully that he/she did not know the age of the prosecutrix or that the child was not a child of tender years. In this case, the trial magistrate had this to say: “(b) I further find by my ocular observation, coupled with the school attendance register, that at the time of the said carnal knowledge, the prosecutrix was a child.... ” We agree with Mr. Muzenga that the trial magistrate fell in grave error when he relied on his ocular observation to determine the age of the prosecutrix. Of course, there are exceptions to this J10 P. 733 rule in cases involving small children but not in borderline cases such as in the present case where the prosecutrix put her own age at 14 years. The trial magistrate erred further when he also relied on the school register to satisfy himself that the prosecutrix was a child without the entries of the register being verified and authenticated. We reaffirm our pronouncement in the case of Phiri Macheka vs. The People1 where we held that: (i) Where the age of a person is an essential ingredient of a charge, that age must be strictly proved. (ii) It is not acceptable simply for a prosecutrix to state her age; this can be no more than a statement as to her belief as to her age. Age should be proved by one of the parents or by whatever other best evidence is available. On this issue of the age of the prosecutrix, Mr. Muzenga and Ms. Nyalugwe agreed that the evidence of the prosecutrix should have been discounted as her age being the main ingredient of the offence was not proved by the prosecution. We agree with Mr. Muzenga's submission that since the age of the victim was not proved, it cannot be accepted that the offence of defilement was committed. JU P. 734 Learned Counsel for the parties have also acknowledged the glaring discrepancies in this case which the trial magistrate chose to ignore. As alluded to herein, the father of the prosecutrix was not called upon to confirm the information in the school register. Further, the teacher who was instrumental in bringing the appellant to book was not called as a witness; the statement of offence indicated that the offence was committed between the 1st and 30th April, 2013 yet the indictment shows that the appellant was arrested on the 3rd Februaiy, 2013; the prosecutrix, who gave her years as 14 years, stated that she was defiled in November, 2013; the medical report shows 10 years as the age of the prosecutrix and shows that the matter was reported on the 9th August, 2013 and that the ‘patient’ was examined 10 days after the alleged defilement. All these discrepancies should have cast doubt in the mind of the trial court and should have been resolved in favour of the appellant in terms of the case of Dorothy Mutale and Richard Phiri vs. The People5 in which we stated that: However, there is that lingering doubt on account of the various matters herein discussed and we are required by the criminal law to J12 resolve such doubts in favour of the accused since the conviction is then rendered unsafe and unsatisfactory. ...” P. 735 Further, in the case of Sipali Chibozu and Chobu vs. The People,6 we stated that: The failure by the learned judge to notice or explore the inconsistency in the prosecution evidence constitutes a serious misdirection. All things considered, the trial court should have properly directed himself and taking into account all the discrepancies in the case, the conviction cannot stand and we set it aside and acquit the appellant forthwith. G. S PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE SUPREME COURT JUDGE J13