Bright Hachobe and Anor v the People (Appeal No.148,149/2021; Appeal No.148,149/2021) [2022] ZMCA 210 (15 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.148,149/2021 HOLDEN AT KABWE and LUSAKA (Criminal Jurisdiction) BETWEEN: BRIGHT HACHOBE TRYWEL HACHOBE AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: Mchenga DJP, Makungu and Muzenga, JJA On: 18 th May 2022 and 15 th June 2022 For the Appellants: M. Mulanda-Banda legal Aid Counsel, Legal Aid Board For the Respondent: M. Chipanta-Mwansa, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. CASES REFERRED TO: !. Godfrey Kabamba v. The People [1971] Z. R. 84 2. Sikota Wina and Princess Nakatindi Wina v. The People [1995-1997] Z . R. 137 3. Zulu v. The People [1973] Z. R. 326 LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1. INTRODUCTION J2 1. 1. The appellants appeared before the Subordinate Court (Hon. D. Musonda, as he then was) , charged with the offence of conspiracy to defile, contrary to section 150 of The Penal Code. 1.2. They denied the charge, and the matter proceeded to trial. At the end of the trial, they were both convicted for committing the offence and committed to the High Court for sentencing. 1. 3. In the High Court (Limbani, J.), they were each sentenced to 18 years imprisonment, with hard labour. 1. 4. They have both appealed against their convictions. 2. CASE BEFORE THE TRIAL COURT 2.1. As indicated earlier on, the case proceeded to trial after both appellants denied the charge. 2.2. Of importance to this appeal, is the approach that the trial magistrate took when the 1 st appellant indicated that he had a recording that he wanted to produce in his defence. J3 2. 3. At the end of his defence, the 1 st appellant informed the trial magistrate that he had a recording which he intended to produce. He also told the magistrate that he intended to call a witness who was not available. 2. 4. He then asked for a week, because he did not have the recording and the witness was not present, on that day. The case was adjourned. 2.5. When the case came up for continued defence, he was allowed to lead his witness. After the witness had testified, the 1 st appellant informed the trial magistrate that he was ready to produce the recording, which was on a phone. 2. 6. The public prosecutor objected to the production of the recording on the ground that the appellant should have produced it when he was giving. his evidence. 2.7. In response, the appellant reminded the court ,that at the time he gave his evidence, he had informed the court that he had the recording but had left it at home. J4 2. 8. In his ruling on the objection, the trial magistrate ruled as follows, "I will not allow the recordings on the basis that the authenticity of the recordings cannot be ascertained and more so that they are an out of court that cannot be tested by cross examination". 2. 9. In the case of Geoffrey Kabamba v The People 1 , an appeal from the Subordinate Court to the High Court, one of the issues raised by the appellant was that he was . prejudiced when the trial magistrate prevented him from calling a defence witness during the trial. 2 .10. The appellant had attempted to call a witness late into the trial and the magistrate's reaction was that; "The calling of this extra witness cannot be entertained because it is possible that he may be an invented witness." 2.11. Chomba, J., as he then was, opined that "the magistrate's conduct was such that it made the appellant fail to present his case according to his own wishes and ......... I take the view that the appellant JS did not have a fair trial and therefore the conviction in this case cannot be upheld." 2.12. We are persuaded by Judge Chomba's view and we adopt it. Preventing an accused person from calling a witness or indeed leading evidence in aid of his defence, can in certain instances, render a trial unfair. 2.13. While it is a practice that a witness who intends to produce evidence in his custody, produces that evidence during the course of his testimony, there is nothing wrong or irregular with allowing a witness to produce such evidence after testifying. Particularly one who is unrepresented. 2.14. In fact, it is an accepted practice, in certain situations for a witness to be recalled to produce evidence that they did not produce during their testimony. In such instances, the other party suffers no . prejudice when they are accorded the opportunity to cross-examine the witness. 2.15. In this case, the trial magistrate erred when he disqualified the 1 st appellant from producing the J6 evidence on the ground that it could have been unauthentic. While a conclusion that a recording's authenticity is doubtful can be a basis for a court not placing any reliance on it, such a conclusion can only be arrived at after the court has heard evidence of the circumstances in which it was recorded and, in some cases, listened to the recording. 2.16. The court, should not, as happened in this case, have rejected the recording without giving the 1 st appellant the opportunity to lead evidence on the circumstances in which it was recorded. 2 .17. In the premises, we find that the appellants were denied a fair trial because they were not allowed to produce a recording that was intended to cast doubt on the credibility of the 1 st appellant's wife, who was a key prosecution witness against both of them. 2.18. Mrs. Chipanta-Mwansa's view was that denying the appellant the opportunity to produce the recording, was a procedural irregularity that warrants a J7 retrial. However, Mrs. Mulanda-Banda's view was that the appellants will be prejudiced by a retrial by as the case against them was not proved. 2.19. As we have indicated earlier on, it was irregular to stop the 1 st appellant from calling evidence. In the case of Sikota Wina and Princess Nakatindi Wina v The People 2 it was pointed out that a re-trial could be ordered if the first trial was flawed on a technical defect and there were good reasons for subjecting the accused to a second trial in the interests of justice. However,. such an order should not be made where the prosecution has adduced all the evidence it had and the charge was not proved. 2.20. In addition, in the case of Zulu v The People3 , it was pointed out that the amount of time spent in prison by an appellant, is a consideration when the court is deciding on whether to order a retrial. 2.21. We have examined the evidence on the record and all the circumstances of this case. We are satisfied JS that this is an appropriate case to remit back to the Subordinate Court for retrial. 3. VERDICT 3. 1. The appellants' conviction for the offence of conspiracy to defile is set aside. 3.2. We direct that they be tried for the same offence before a different magistrate of competent jurisdiction. C. F. R. Mche ga DEPUTY JUDGE PRES ··········~················~··· C. K Makungu COURT OF APPEAL JUDGE ········~················ K Muzenga COURT OF APPEAL JUDGE