Banda v People (Appeal 56 of 1991) [1991] ZMSC 29 (19 November 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal no. 56 of 1991 HOLDEN AT LUSAKA (criminal jurisdiction) CHISONI BANDA Appellant -v- THE PEOPLE z Respondent CORAM: Ngulube, D. C. J., Gardner, A. J. S. and Sakala, J. S. On 15th October, and . For the Appellant: S. KfMunthali, Senior Legal Aid Counsel For the Respondent: K. Lwali, Assistant Senior State Advocate JUDGMENT Ngulube, D. C. J. delivered the judgment of the court Cases referred to: Shamwana and Others -v- The People (1985) ZR 2) The People -v- John Ng'uni (1977) ZR 376 . A1' ■ — The appellant was convicted of the murder of Lamiwe Banda and sentenced to capital punishment. The particulars alleged that on 18th October, 1989, at Chingala Village in Chief Kawaza's area in Katete District, he murdered the deceased. The prosecution case established that the deceased died from traumatic perforation of her private parts and rectum and the allegation was that it was the appellant who inflicted the fatal injuries by violent insertion of a knobkerrie. There was evidence from a number of witnesses, that the deceased told them it was Chisoni who had assaulted her and injured her very badly including in \■„ the private parts. In particular, PW5 testified that on the fateful day, the deceased had passed by her house and told her she was going to have some beer. A short while later, the deceased came and fell in her PW5 that Chisoni had assaulted her and injured her with a knobker/. PW1 was one of those summoned and the deceased told him too that it was Chisoni who had injured her after she had rejected his sexual advances. , / ?! There was evidence also from PW2 who together with PW3 apprehended Chisoni, the appellant , that twice the appellant escaped and ran away from them but was recaptured. PW2 testified that the appellant admitted that he had killed the deceased and gave the reason that she had refused to have sexual intercourse with him. There was, in addition, a full ' confession recorded by PW7, a police officer and witnessed by PW6y a civilian who happened to be at the police station to report another matter altogether. The warn and caution statement was admitted at first without any objection but when allegations of assaults and induce­ ments were made during the defence case the learned trial judge correctly / held a belated trial within the trial and still ruled in favour of admitting the statement. In the course of dealing with the warn and caution statement^the learned counsel then tal-kmg for the appellant disclosed to the court that he was suprised by the allegation of involu- ntariness being raised by the accused since his earlier aibritisstoits- were that it was a free voluntary. statement and counsel gctye as his jjwr- a that the confession was voluntary. The learned trial judge in his judgment explicitly relied quite heavily on defending counsel's statements from the r as fortifying his finding on the question of voluntariness and consequent admissibility of the statement^. The first ground of appeal attacked the finding that the warn and caution statement was voluntary while the second ground t&oK the admission of the same statement on the basis of the unfortunate remarks from the &ar by the defending counsel. In relation to the first limb, Mr. Munthali relied on the evidence of PW6 who testified that he did not hear any warn and caution acually being administered and that at first the appellant was reluctant to speak and only did so when PW7 The objection raised by the defence was baspdon alleged assaultrand these were discounted after the learned trial judge found^nothing wrong with that determination. However, the comp1 aint ^Gonta*!n&g the absence of any actual adm-i-ssion of the warn and caution although it was written . . 3/.....at the - 3 - at the top of the statement,was well taken having regard to the evidence of PW6. In terms of Shamwana and Others -v- The People (1) the failure J to administer a warn and caution raises U^rebuttable presumption of involuntariness and unfairness and it is for the preeantTOn to advance Ct\ the explanation acceptable to the court for the ebj-oet of the relevant judge's if the court is to exercise its ^^^in favour of ,''r admission. No explanation is available in this case whether PW7 took the position that he had administered a warn and caution statement while wM-te PW6 contradicted this. There is yet another reason why we / should uphold Mr. Munthali's object to the warn and caution statement. This relates to the second ground of appeal which attacked the heavy reliance placed by the trfal judge on the- def eeee counsel 's damaging statements from the Oar. In^10 11 of para. 1137 of Halsbury's 4th * * /lot® Edition,volume HT the learned authors suggest that where confession of guilt/ is made to counsel before triaL he could decline to take up the defence of the case.’ Whereas thfe confession made to him during trial does not clgter him from testing the prosecution case to the full and setting up available defences so long as he does not set up an: affirmative case inconsistent with the confession. The discussion at^v para 1195 of the same volume of Halbury's underlines the 4ete of nene <7* o disclosure by counsel^£ not entitled to^'comm’Dffiting anyone else if it would be to the detriment of his client*^ agree with these observations. In this case,the stance taken by .tt defending counsel, hostile as it.; was to the accused's interests, not only put the appellant in a fix, as the saying goes.but also resulted in a prejudice when the learned trial judge expressed satisfaction that,ease ■»£ his own lawyer had said so, the confession statement recorded by. PW7 must have been free and : voluntary and the objections raised by the appellant had to be dismissed. We do not see-why the appellants challenge to the admission of £his I ■ • ! • . warning and caution statement can be said to have fair consideration when defending counsel made damaging statements contrel-Ii-ftg to his ■det-os to the client. The grounds in this respect^are upheld and the statement recorded by PW7 will be disregarded for purposes of this . r judgment. 4/.......... //Mr. Munthali - Mr. . Munthali sought to argue that the learned trial judge did not ; rely on any other evidence and that we should not consider such other evidence. On the contrary, as Mr. Lwali pointed out^there was tM-s other evidence which the learned trial judge accepted. This consisted of statements made by the deceased to PWs 1 and 5 and the confession , made to PW^, the civilian who had apprehended the appellantAagainst whom there was no suggestion of any impropriety. In relation to PW5 to whom the deceased made report .immediately after the incident, and PW1 who was told the same things later that jiao Mr. Lwali submitted i fa that their evidence was admissible aw res gestae on the ground on-the g fay, grounds which were fully discussed by Ca^irtaR J as he then was in The People -v- John Ng'uni (£)> |(e submitted that there was no possibility in this case that at the time when the deceased spoke to the witnesses ; CL/ she could have distorted the account or concocted the story. We respect- fully agree thet the decision in Ng'uni that evidence of a statement made by a person who is not called as a witness^in this case the ■ deceasedlmay be admitted as part of the res gestae and can be treated " as an exception to the hearsay rule provided it was made in such < : conditionjof involvement or pressure as to exclude the possibility of concoction or disZT/^n to the advantages the Lawyer or disadvantage of the accused. The te^ts discussed in Ng'uni were fully met here and < A the evidence of what the deceased said was properly admitted. It is not correct asy Munthali suggested that the accused in Ng'uni was greeted because the eyewitnesses who purported, tothe deceased said were themselves not credible and appeared anxious to the.presence of and the roles played by some members of. their family whom the accused had implicated. In the case hand, no such defence finding on credibility was made or could be made against PWs 1 and 5. What is more, there was nothing else in Ng'uni to support the evidence of thes—™ allegedly‘Sloped by the deceased through- implicating >1 accused while in this case there was the evidence of. PW2 to whom this appellant &emplai-ned... We are satisfied that evenv had the learned trial judge excluded the warn and caution statement recorded jcacorded by PW7 he must have 5 - convicted in any event on the remainder of the evidence. The appeal against conviction is dismissed. . We have nothing to-comment on the mandatory