Zulu v People (Appeal 33 of 2018) [2018] ZMCA 390 (25 September 2018)

C.e£ ^3 IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 33/2018 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: AUGUSTINE ZULU VS THE PEOPLE APPELLANT REGISTRY? ‘‘*2*50067, RESPONDENT CORAM.* Mchenga DJP, Chishimba, and Majula, JJA On 24th day of June, 2018 and 25th September, 2018 For the Appellant: Ms. C. I. Banda, Senior Legal Aid Counsel - Legal Aid Board For the Respondent: Mrs. N. P. Lungu, Principal State Advocate - NPA JUDGMENT MAJULA, JA, delivered the Judgment of the Court Cases re ferred to: 1. Mbinga Nyambe vs The People (SCZ Judgment No. 5 of 2011). 2. David Zulu vs The People (1977) ZR 151. 3. Chimbini vs The People (1973) ZR 191. Legislation Referred to: The Penal Code, Chapter 87 of the Laws of Zambia J2 On 6th November, 2017, the appellant Augustine Zulu was arraigned before the High Court sitting at Chipata on a charge of acts intended to cause grievous bodily harm as defined in section 224(a) of the Penal Code, Chapter 87 of the Laws of Zambia. The allegations against him were that the appellant with Lottie Phiri, on the 27th day of July, 2016 at Chipata in the Chipata District of Eastern Province of Republic of Zambia, jointly and whilst acting together with intent to maim, disfigure or disable unla\^illy did wound and cause grievous bodily harm to the person of Lee Benjamin Chakupalesa. A brief summary of the facts is that on an unknown date in July, 2016, two men whose identities were unknown viaited the house for Mr. Chakupalesa and his family. They requested to see the owner of the house, but were informed that he had already left for work. The men departed thereafter. A few days later, on 27th July, while the Chakupal£S& family were at their dining table, around 19.00 hours, two men entered their house and attacked them. Mr. Chakupalesa (PW3) was hit with a machete on his forehead and arm. The assailants were wearing masks and armed with a firearm and steel bars. A fight enj^ed and, in the process, PW3 was shot in the arm. The assailants thereafter fled the scene. As PW3 was proceeding to St. Johns Clinic with his family, he observed a car parked outside the church yard. * J3 The following morning, (PW4) a neighbor found some car keys in her yard which were later discovered to be keys for the car which was parked approximately 20 meters away from her house. This mysterious vehicle, a dark blue Toyota Corolla was later discovered as belonging to PW6 who had lent it to the apggjlant on that material day for transportation of some maize. The appellant contrary to the agreement did not return the vehicle on that day and efforts to locate him proved futile. The owner of the vehicle (PW6) reported the matter to the police where he was informed that his vehicle had been impounded in connection with a crime. Investigations were conducted and the appellant and another were arrested and charged with the subject offence. The sum of the appellant’s defence was that he did^ot deny obtaining the vehicle from PW6. His evidence was that he subsequently also lent it to someone else and he remained at a bar at Stafford Bridge. That the vehicle was not returned as agreed and his attempts to get hold of his colleague were in vain as 1^ phone was off. The following day he went looking for the vehicle. He basically denied any involvement in the commission of the offence. The trial Judge in the court below after analyzing the evidence before her, found that appellant guilty of the offence as charged on the basis that there was cogent evidence linking him to the commission of the offence and sentenced him to 20 years with hard I J4 labour. She however, found that there was insufficient evidence to connect Lottie Phiri to the offence, and consequently acquitted him. The appellant is disenchanted with the conviction and has raised three (3) grounds of appeal structured as follows: 1. The trial court misdirected itself when it convicted the appellant in the absence of cogent evidence suggesting that he (^nmitted or participated in committing the offence. 2. The trial court misdirected itself when it ignored the appellant’s evidence and prosecution evidence which suggested that the offence was committed by someone else. 3. The trial court misdirected itself when it failed to give due weight to the appellant’s evidence when the same was not discredited under cross examination. In support of ground one, Mrs. Banda counsel for the agpellant, submitted that the evidence upon which the appellant was convicted was circumstantial. She cited the case of Mbinga Nyambe vs The People1, where it was held, inter alia, that where a conclusion is based purely on inferences, that inference may be drawn only if it is the only reasonable inference on the evidence. * She argued that in this matter the inference that the appellant is the one who committed this offence is not the only reasonable inference as it is possible that another person other than the appellant could have driven the vehicle near the crime scene. I J5 Counsel observed that there is no evidence that the appellant is the one who actually drove the vehicle and left it near the crime scene. She noted that the appellant was consistent that after being called on the phone by A2, he lent out the vehicle to A2 at an amount of K30.00 on 27th July, 201,7 around 17.00 hours. Counsel went on to highlight the explanation by the appellant that A2 did not return the vehicle is very reasonable. With respect to grounds two and three, it was argue^hat the trial court misdirected itself when it held that the appellant’s warn and caution statement amounted to an ex-curia confession. According to Counsel, the appellant did not make any confession at the police. He merely explained how the motor vehicle was given to A2 and what followed afterwards. Counsel referred us to Black’s Law Dictionary, 9th edition, on the definition of a confession as being - “a criminal suspect’s oral or written acknowledgement of guilt, often including details about the crime”. She forcefully argued that the weight of the evidence was more on securing a conviction for A2 although he was acquitted by the court below. She pointed out that this is so in that three men who included A2 visited the complainant’s house a few days before the attack. A2 was identified by PW1. * According to Counsel, PW3 was attacked by three persons who were armed with a gun, iron bars, machetes. The said weapons were subsequently recovered at A2’s house by the arresting officer. * J6 She further argued that A2 and his witnesses were untruthful and dishonest witnesses. Counsel for the appellant concluded her submission by stating that the evidence strongly demonstrates that the offence was committed by A2, Lottie Phiri and two unknown persons. On behalf of the respondent written heads of arguments were filed on 26th June, 2018, upon which Mrs. Lungu entirely relied. Mrs. Lungu submitted that although there was no direct evidence for the appellant’s involvement in the commission of the offence, the circumstantial evidence adduced had taken the case out of^Pie realm of conjecture. In this regard, our attention was drawn to the case of David Zulu vs The People2. Mrs. Lungu argued that PW5 in his testimony narrated to the court that at about 19.00 hours the appellant received a call from an unknown person whom he advised that they would meet shortly afterwards. Counsel contended that to conclude that the appellant gave the vehicle to the person who called would be far-fetched. She further pointed out that the evidence before court confirmed that the appellant was the one who was seen driving the motor vehicle that is the subject matter of these proceedings, which was later found abandoned at the crime scene. It was observed that the appellant did not bother to report the missing vehicle * to ^ie police until two days later after being informed by the sister that his brother in law was detained over the same matter. Counsel for the respondent accordingly urged us to dismiss the appeal. I J7 We have considered the evidence and arguments by the respective parties. The evidence before us is circumstantial in that there is no direct evidence of the identity of the perpetrator of the offence. The evidence reveals that the appellant had borrowed a car from PW6. It is not in dispute that the car was not returned on that night but was found parked near where the offence took place." FiJfther the keys for the car were retrieved from the vicinity of where the car was found. In order to draw an inference from circumstantial evidence that it is the appellant who participated in the crime, the evidence must be of such a cogent nature such as to take it out of the realm of conjecture. In the celebrated case of David Zulu vs The People2 the Supreme Court guided that: “It is therefore incumbent on a trial Judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict, he satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt.” Another illuminating case on circumstantial evidence is that of Chimbini vs The People3 where it was held as follows: J8 “Where the evidence against an accused person is purely circumstantial and his guilt is entirely a matter of inference, an inference of guilty may not be drawn unless it is the only inference drawn from the facts” Turning to the case before us and putting all the pieces of the evidence together that is; the appellant having been in possession of a car which was used in the commission of an offence; keys of the same vehicle being found a few meters from where the vqjjicle was abandoned, failure to report the allegedly missing vehicle, the family of Chakupalesas’ being attacked with PW3 sustaining injuries after being hit with a machete on the same night the vehicle was found abandoned close to his residence leads us to the inescapable inference that it was appellant together with other persons unknown who committed the offence. The only inference that can be drawn on this evidence is that the abandoned car was used by PW3’s assailants. They dropped the keys as they fled and as a result, would not drive off. Had the appellant not been party to this attack, he would have reported the delayed return of the car but he did not. We are satisfied that the trial Judge properly directedjjis mind to the requirements to be considered before one can convict on the basis of circumstantial evidence. This is one such case where the evidence adduced takes the case out of the realm of conjecture. We therefore see no basis upon which we can assail the findings of the Judge in the court below. J9 In light of the foregoing we find all the three groups to be devoid of merit and dismiss them accordingly. We uphold the co n an tence of the court below. CHENGA DEPUTY JUDGE PRESI F. M. CHISHIMBA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE