Anold Chileshe v People (APPEAL NO 98/2008; SCZ JUDGMENT NO. 40 OF 2008) [2008] ZMSC 171 (4 December 2008)

SCZ JUPGMENT NO. 40 OF 2008 P861 APPEAL NO 98/2008 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA/LUSAKA (Appellate Jurisdiction) BETWEEN: ANOLD CHILESHE APPELLANT AND THE PEOPLE RESPONDENT CORAM: Sakala, C. J., Chitengi and Mwanamwambwa, J. J. S. On 1(lh September 2008 and~ December 2008 For The Appellant: Mr. L. E. Eya, Deputy Director of Legal Aid For the People: Mr. P. Mutale - Principal State Advocate JUDGMENT Mwanamwambwa, JS, dellvered the Judgment of the Court. Cases referred to: 1. 2. 3. Emmanuel Phlrl v the People [1982] Z. R. 77. Nsofu v The People [1973] Z. R. 287. Katebe v The People [1975] Z. R. 13. Legislation referred to: The Juveniles Act, CAP 53 of the Laws of Zambia Section 122 (1). -J2- On 10th September 2008, we heard this appeal against defilement. We allowed it, quashed the conviction, set aside the sentence of twenty (20) years imprisonment with hard labour and set the Appellant free right away. We said that we would give our reasons later. We now give the PB62 reasons. This is an appeal against conviction for defilement, contrary to Section 138 (1) of the Penal Code, CAP 87 of the Laws of Zambia, as amended by Section 5 of Act No. 15 of 2005. On 11th September 2007, the Appellant was convicted of defilement by the Subordinate Court of the 1st class, holden at Luanshya. He was then referred to the High Court, Ndola for sentencing. On 13th December 2007, the High Court sentenced him to twenty (20) years imprisonment with hard labour, with effect from 1ith June 2007, when he was apprehended. The appeal is against sentence too. The case for the prosecution was that on the date unknown, but between 1st October 2006, at Luanshya, the Appellant defiled the prosecutrix, Memory Chibakanana, a girl aged fifteen (15) years. The prosecution's case rested mainly on the evidence of P. W.3, the prosecutrix, exhibit "Pl", her clinic card and exhibit "P", the medical Report. Her evidence was that the Appellant was her uncle. That in October and November 2006, she used to sleep in the same house with -J3- PB63 the Appellant. That the house had two rooms; she slept in one room with a girl called Mutinta Chileshe, aged five (5) years. That the Appellant slept in the other room. That on three (3) separate nights the Appellant entered her room, overpowered her and had sexual intercourse with her. That she shouted for help; but nobody came to her rescue. As of then, she was staying with Mr. and Mrs. Chileshe, her grand parents. She also testified that she was also defiled by one Kennedy Mumpengu. She did not specify the month but it was ln 2006, the period when people started selling maize. That the defilement by Kennedy occurred in her uncle's house. There was evidence that the prosecutrix became pregnant after being defiled. P. W.2, Brenda Chibakanana, testified that she noticed the prosecutrix's pregnancy in May 2007. That the prosecutrix revealed to her after five (5) days of being questioned. That, she was first defiled by the Appellant and later by Kennedy Mumpengu. P. W.1, Esora Chibakanana, testified that the prosecutrix was born on 22nd June 1991, at Thomson Hospital. That as at 1fh August 2007, when she testified, the prosecutrix was aged sixteen (16) years. Exhibit "P2", the medical report, confirmed that as at 29th May 2007, the prosecutrix was six (6) months pregnant. Exhibit "Pl" confirmed that she was born on 22nd June 1991. -J4- The Appellant's defence was a denial of the charge. It was his case that he was falsely implicated by the prosecutrix. That she had a love affair with Kennedy Mumpengu. P864 D. W.2, Fidelis Chileshe, testified that in December 2006, the Appellant rebuked the prosecutrix over her troublesome behaviour and for flirting with Kennedy Mumpengu. That the prosecutrix responded angrily and rudely to the rebuke. Thereupon, the Appellant threatened to beat her up. She responded that she could not be beaten because even her father had never beaten her. At that stage, the Appellant beat her up. That D. W.2 rescued her from the beating. That in the process, she threatened to report to her Grandmother and Grandfather, that the Appellant had attempted to do some bad things to her. P. W.2 added that she briefed the girl's mother over the incident and the girl's bad behaviour at the village. She revealed that Memory used to sleep out. That she had a love relationship with Kennedy Mumpengu. That the girl's mother was her sister; while the Appellant was her brother. The learned trial Magistrate evaluated the evidence. On the basis of the evidence of P. W.1 and exhibit "Pl", the child 1s clinic card, he correctly found that the prosecutrix was born on 22nd June 1991. Therefore, in October 2006, she was aged 15 years 4 months. He found that in 2006, she was defiled by Kennedy Mumpengu. He estimated that the defilement by Kennedy occurred in June 2006. He was of the view that her evidence that she was defiled by both the Appellant and Kennedy -J5- P865 Mumpengu, was very strong and cogent. That the girl's testimony was corroborated by the pregnancy. He further found that there was overwhelming evidence by the prosecutrix that she was defiled by the Appellant. We must say at once, that this was a misdirection. We will come back to this issue later. He added that from the evidence, it was possible that she could have slept with several other men. He then concluded that though the girl was not corroborated, her evidence was overwhelming. He believed that she was defiled by the Appellant. He disbelieved the evidence of D. W.s 1, 2 and 3 because they were not present when she was defiled by Kennedy and the Appellant. He disbelieved the evidence by D. W.3, to the effect that the room in which the prosecutrix slept with Mutinta Chileshe, was locked and had bars. He disbelieved this evidence because the Appellant never said so. He finally concluded that the prosecution had proved the case against the Appellant beyond all reasonable doubt. Accordingly; he convicted the Appellant. On behalf of the Appellant, Mr. Eya, the learned Deputy Director of Legal Aid, put up two grounds of appeal. Ground 1 relates to conviction, whereas Ground 2 is as to sentence. The first ground is that the trial Court misdirected itself in convicting the Appellant on the uncorroborated evidence of the prosecutrix. On this ground, he argued that the only evidence implicating the Appellant in the -J6- commission of the offence was that of the prosecutrix. He pointed out that the evidence in question was what the prosecutrix said close to five (5) months after the alleged date of defilement. P866 He then referred us to three cases of this Court. The first one is Emmanuel Phiri v The People [1982] Z. R. 77. That case decides:- "(i) That In a sexual offence there must be corroboration of both 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 warn itself is a misdirection. (ii) That a conviction may be upheld In a proper case notwithstanding that no warning as to corroboration has been given if there in fact exists in the case corroboration or that something more as excludes the dangers referred to. (iii) That It Is a special and compelling ground or that something more which would justify a conviction on uncorroborated evidence, where, in the particular circumstances of the case there can be no motive for a prosecutrlx dellberately and dishonestly to make a false allegatlon against an accused ; and the case in effect resolves Itself In practice to being no different from any -J7- other In which the conviction depends on the rellabllity of her evidence as to the identity of the culprit." PB67 The second case is Nsofu v the People [1973] Z. R. 287, to the extent it decided that: "Corroboration is independent evidence which tends to confirm that the witness is telling the truth when she says that the offence was committed and that it was the accused who committed it.,, The third is Katebe v The People [1975] Z. R. 13, wherein this Court, at page 14, said about the motive: "The reasons for caution in such cases are legion and Is necessary forms to repeat them at length; obviously there are circumstances In which a woman will make false allegations in order to protect a boyfriend, or in circumstances where there may be fear of a husband or a father." He pointed out that in the instant case, when the prosecutrix arrived at her parents' home, P. W.1, her mother, asked her how they stayed at the farm. Her reply was that they stayed well. But later the prosecutrix's pregnancy appeared. And when she was interviewed by P. W.1 about it, she said that the people who defiled and impregnated her were the Appellant and Kennedy Mumpengu. Counsel also pointed out the evidence of D. W.2, to the Court. It was to the effect that the Appellant tried to counsel the prosecutrix against her conduct of flirting around and -J8- beat her up, following her unfavourable response. The prosecutrix threatened to implicate the Appellant. P868 Mr. Eya submitted that on this case, there was sufficient motive for the prosecutrix to falsely implicate the appellant in the commission of the offence; in order to protect the boyfriend and for fear of her father or because the appellant beat her in disapproval of her behaviour at the farm. It was Counsel's submission that it was not safe to uphold the conviction as the danger of false implication had not been ruled out. On behalf of the People, Mr. Mutale did not support the conviction. We have examined the evidence on record and the judgment by the learned trial Magistrate. We have also considered the arguments by Mr. Eya and the authorities we were referred to. Several years ago, this Court stated principles on corroboration, in sexual offences, in three cases. These are :- (a) Emmanuel Phiri v The People (1) (b) Nsofu v The People (2) and (c) Katebe v The People (3). The principles in question are as set out above. We wish to re-affirm that those principles are still good law today. The case at hand, like the three cited cases, involved a sexual offence. But in addition to that, this case involved a child of tender years, as defined by Section 2 (1) of the -J9- P869 Juvenile Act, CAP 53 of the Laws of Zambia. Under the proviso to Section 122 (1) of the Juvenile Act, corroboration of the evidence of a child of tender years is required as a matter of law before an accused can be convicted on it. In the present case, pregnancy of the prosecutrix was corroboration that she was defiled. The question was whether there was corroboration as to the identity of the Appellant as the offender. The prosecutrix implicated two persons as defilers. The learned trial Magistrate did not address his mind to the proviso to Section 122 (1) of the Juveniles Act. His failure to do so was a misdirection in law. He correctly found that the evidence of the prosecutrix was not corroborated as to the identity of the defiler. Had he addressed his mind to the proviso to Section 122 (1) of the Juveniles Act, we doubt if he would have convicted the Appellant. Further, we note from the record that the learned trial Magistrate did not warn himself on the danger of convicting on the uncorroborated evidence of the prosecutrix. On the authority of Emmanuel Phiri v. The People (1), we hold that his failure to do so was a misdirection. On the facts of this case, the misdirection would have rendered the conviction bad even assuming Section 122 (1) of the Juveniles Act, did not apply. -JJO- PB70 Additionally, on the facts of this case, we agree with Mr. Eya that there was a motive on the part of the prosecutrix to falsely or dishonestly make false allegations against the Appellant. We do so because the Appellant had rebuked and beaten her over her love-relationship with males. Indeed, she threatened to make unspecified allegations against him over the beating. The learned trial Magistrate did not consider this issue. Given this very issue, we are of the view that there was no special or compelling ground or something more, to justify a conviction on uncorroborated evidence of the prosecutrix. The foregoing were the reasons for allowing the appeal. ...... ~~()~ ......... . E. L. SAKALA CHIEF JUSTICE \\}~ ~ .. ,,, .--:'. ... P. CHITENGI SUPREME COURT JUDGE