Cephas Kawanga Simasiku v the People (APPEAL NO.111/2021) [2022] ZMCA 191 (24 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 111 / 2021 BETWEEN: CEPHAS KAWANGA SIMASIKU -- OF ZAMBIA APPELLANT AND THE PEOPLE ~ ------- RESPONDENT - Coram: Mchenga DJP, Makungu an~ Muzenga JJA On the 15th day of March, 2022 and the §t..~ •• ~ day of August, 2022 For the Appellant: Mr. H. M Mweemba, Acting Director- Legal Aid Board For the Respondent: Miss. M. Chilufya, Senior State Advocate - National Prosecutions Authority JUDGMENT Makungu, JA delivered the Judgment of the Court. Cases Referred to: 1. Godfrey Chimfwembe v. The People - SCZ Appeal No.145 of 2013 2. Robson Chizike v. The People - CAZ Appeal No. 94 of 2020 3. Leonard Kaonga v. The People - CAZ Appeal No. 163 of 2020 4. Davies Chiyengwa Mangoma v. The People - SCZ Appeal No. 217 of 2015 5. Machipisha Kombe v. The People (2009) ZR 282 6. Emmanuel Phiri v. The People (1982) ZR 77 7. Benai Silungwe v. The People (2008) Z. R. 123 8. Mathews Chitupila Chalwe v. The People - CAZ Appeal. No. 58 of 2020 9. Sakala v. The People (1972) ZR 35 10. Simon Zandala v. The People- CAZ Appeal No. 118 of 2019 11. Sikota Wina and Princess Nakatindi Wina v. The People (1995 - 1997) ZR 12. Zulu v. The People (1973) Z. R. 326 Legislation Referred to; 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. Juveniles Act, Chapter 53 of the Laws of Zambia 3. The Court of Appeal Act No. 7 of 2016 1.0 INTRODUCTION 1.1 The appellant was convicted of the offence of incest by males; .contrary to Section 159(1) of The Penal Code. 1 The particulars of the offen~e were that the appellant, on dates unknown but between 1st May, 2019 and 6th August, 2019 at Mumbwa in ,the Mumbwa District of Central Province of the Republic of Zambia, had carnal knowledge of LSK who to his knowledge was his daughter. He was sentenced to life imprisonment. This appeal is against both conviction and sentence. -J2- 2.0 BACKGROUND PROSECUTION EVIDENCE 2.1 On the 6th August, 2019, the appellant, his brother in law, the appellant's 8-year-old daughter (prosecutrix) and the appellant's son were walking in their neighborhood., The prosecutrix started crying and rolling on the ground and then the appellant beat her. 2.2 This was witnessed by PWl Regina Kawartga who asked the appellant why he was beating her. He replied that she was just being difficult and she liked crying. When PW 1 asked the prosecutrix why she wa~ crying, she responded that her , private parts were painful. 2.3 PWl then took the prosecutrix aside and gave her a fritter to calm her down before she examined her private parts, which she found swollen. When PWl told the appellant her findings, the appellant attributed the swelling greatly to hernia. 2.4 The matter was reported to headman Mpombo (PW4) by PWl. While they were at the headman's place, the headman's wife -J3- (PW2) took the prosecutrix into her kitchen in order to ask her whether she was sexually abused. Meanwhile, PWl left to run some errands. PWl later learnt from PW2 that the prosecutrix had disclosed to her that the appellant had been having sexual intercourse with her. 2 .'S PW2 had checked the child's vagina and found that the clitoris was swollen and the vagina was enlarged. According to PW2, the prosecutrix had stated/ in the presence of the appellant, her grandmother (PW3), PW4 and others that the appellant had sex with her on three occasions. PW3 had also seen that her vagina w~ swollen. 2. 6 PW2 's further evidence was that the prosecutrix's brother told her that ,he used to see his father having sex with the prose.cutrix after bathing her. At that point, the appellant stated that he only used to bath his daughter when she had hernia. PW2 was aware that the prosecutrix once had scabies. -J4- 2.7 That in the same meeting, the appellant initially denied the allegations but finally admitted the offence and pleaded not to be handed over to the police. 2.8 Later PW4, the Headman and PW3 the grandmother to the prosecutrix took the prosecutrix to the hospital where _i,t was confirmed that she had been sexually abused. 2.9 In examination in chief, the prosecutrix's mother PWS stated that, when she questioned the prosecuj:rix, she denied having been sexually abused by her father. PWS stated that she ,. examined the prosecutrix's _private parts and saw nothing unusual. Nevertheless, )ler evidence was discredited under cross examination as she stated that the prosecutrix told her that the appellant was the one who had carnal knowledge of her. Additionally, PWS stated that the prosecutrix was healed of scabies long before the incident in question. I 2.10 The prosecutrix (PW7) testified after a vozre dire that the appellant had sexual intercourse with her at night and she felt pain. That at that time, her brother was outside. She -JS- confirmed the story told by PW 1. She also confirmed that she was healed of scabies before the material date. 2.11 PW6, the Arresting Officer who investigated the case, produced the prosecutrix's medical report in evidence. 3.0 DEFENCE 3.1 The appellant's evidence was that PW 1 and' others had only implicated him in this matter because they were interested in selling his farmland. He denied having confessed to the headman that he had carnal knowledge of the prosecutrix. 3 .1 !he appellant testified further that the prosecutrix was given fritters to convince her to tell lies against him. That the prosecutrix appeared to have been healed of scabies but the ·sores were still fresh inside her vagina. 3.2 He admitted that he did not cross examine the prosecution witnesses about their alleged intention of getting him arrested on false allegations of incest in order to convert his land to their own use. -J6- 3.3 He called his mother Lilian Simasiku (DW2), as his witness. She confirmed that her granddaughter, the prosecutrix, once had hernia. She said she knew nothing about the alleged incest. 4 .0 DECISION BY THE TRIAL COURT 4.-1 After considering the evidence on record, the learned trial magistrate determined the matter as follows: i) That the prosecutrix's evidence thaJ: someone had carnal knowledge of her was corroborated by the medical report. ,I ii) That the appellant had the opportunity to commit incest as charged because he was the only adult male in the house with his two children while the wife was away for business. iii) In the same vein, the trial court considered that the appellant used to have access to the prosecutrix's naked body as he used to bath her and medicate her when she had hernia. iv) The appellant's claim that the sores found on the prosecutrix were caused by scabies or hernia was -J7- • dismissed as the medical report did not indicate any findings related to scabies or hernia. v) The court finally found that the prosecution had discharged its burden of proof, and convicted the appellant as charged. 5.0 THE APPEAL 5.1 This appeal is based on the following two grounds: / i) That the learned trial court e"ed in,, law and fact when it convicted the appellant in the ,· absence of co"oboration / required as a matter of law. ii) In the alternative that, the learned trial Court e"ed when it imposed a sentence of life imprisonment on the appellant. 6.0 APPELLANT'S HEADS OF ARGUMENT 6.1 Mr. Mweemba relied on written heads of argument filed into Court on 11th March, 2022. In support of the first ground of appeal, he submitted that the prosecutrix being a child of _ tender years, section 122 of the Juveniles Act2 requires that her evidence be corroborated. On this premise, counsel relied on the cases of Godfrey Chimfwembe v. The People 1 and -JS- • Robson Chizika v. The People. 2 He submitted further that the record shows no corroborative evidence and therefore, there is a possibility that the appellant was falsely implicated. 6.•2 We were directed to the evidence of the prosecutrix's mother- PWS, who denied having been told by the prosecutrix that the / appellant had carnal knowledge of her. Counsel stated that it was only the prosecutrix's brother who pµrportedly stated that the appellant had sex with his sister, although he was not called to testify and, as such, this evidence cannot amount to corroboration of PW7's evidence. 6.3 As regards the finding by the trial Court that evidence of opportunity to commit the offence amounted to corroboration in relation to the identity of the offender, Mr. Mweemba ' / submitted that, the opportunity that was alluded to by the trial Court is not as envisaged by the law as set out in the cases of Leonard Kaonga v. The People3 and Davies Chiyengwa Mangoma v. The People. 4 6.4 In support of the second ground of appeal, it was submitted that the sentence of life imprisonment was too harsh given -J9- that the offence of incest attracts a m1n1mum mandatory sentence of 20 years' imprisonment with hard labour. That in the circumstances of this case, no aggravation was revealed to warrant imposition of a sentence beyond the minimum, and that we ought to perceive the sentence with a sense of shock. 6.5 During the hearing of the appeal, when questioned about the validity of the voire dire, Mr. Mweemba made oral submissions as follows; the record shows that during the / voire dire, the trial Magistrate only recorded answers and not the questions that were ,,posed to the prosecutrix and on that basis, the voire dire was defective. Thus the evidence of the prosecutrix ought to be expunged from the record. He submitted that nevertheless, the matter should not be sent back for retrial because there was insufficient evidence remaining to warrant a conviction. 7.0 RESPONDENT'S HEADS OF ARGUMENT 7 .1 The respondent's counsel Miss Chilufya filed heads of argument dated 21 st March, 2022. In response to the first -JlO- ground of appeal, it was submitted therein that, contrary to the appellant's assertion that the prosecutrix's evidence was uncorroborated, there was sufficient evidence corroborating both the commission of the offence and the identity of the offender. ., 7.2 In response to the contention that the evidence of PWS did not corroborate that of the prosecutrix as PWS had been ,/ detained to compel her to testify, counsel argued that there is nothing on record to show that the detention affected the truthfulness of PWS's evidence. That in any case, even if the evidence of PWS were ,to be expunged from the record, it , would not affect the evidence of the other witnesses, which sufficiently corroborates that of the prosecutrix. 7.3 The learned senior state advocate also referred to the cases of / Leonard Kaonga v. The People3 and Chiyengwa Mangoma v. The People4 to advance her position that the circumstances of this case reveal that the appellant had opportunity to commit the offence and that amounts to -Jll- • corroboration as to the identity of the appellant as the offender. 7. 4 Further, that opportunity is not the only corroborating factor in this case as there are odd coincidences which, when considered in their totality, consolidate the finding that the appellant had carnal knowledge of his daughter. The case of Machipisha Kombe v. The People5 was cited to fortify this submission. 7.5 The odd coincidences referred to were firstly, the swollen state of the prosecutrix's vagin~, which the appellant attributed to scabies or hernia, contrary to the evidence of PWl, PW2 and PWS, who physica.1.ly examined her and testified that she was , healed from scabies. 7.6 Secoqdly, that the appellant's action of beating the prosecutrix as witnessed by PWl, leads to the conclusion that it was in an effort to stop her from speaking about what he had done to her, especially that she was in pain. That when asked by PW 1 why his daughter was crying, he made no -J12- mention of the supposed scabies in her vagina, but instead brushed it off by saying she was just difficult and liked crying. 7. 7 Thirdly, there is nothing on record to show why the prosecutrix and his wife would falsely implicate him. 7.8 Fourthly, that the appellant's accusations against the prosecution witnesses that they were interested in his land lack merit as none of the witnesses wer~cross-examined in relation to that issue. 7. 9 Reliance was placed on the case of Emmanuel Phiri v. The People6 where it was held that where there is no motive for the prosecutrix to falsely implicate the accused person, that amounts to something more that the Court can rely on. / 7 .10 Our attention was also drawn to the evidence of PW2, PW3 and PW4 that when questioned by the Headman, the 'appellant admitted that he had carnal knowledge of the prosecutrix. 7.11 Further, that the trial Court found the appellant's demeanor to have been uncoordinated and that he failed to provide a -J13- • proper explanation as to how the prosecutrix's vagina got swollen. 7.12 In response to the second ground of appeal, the respondent cited the case of Benai Silungwe v. The People7 to advance the argument that there are extraordinary factors in this case which led the Court to impose a sentence of life imprisonment instead of the minimum sentence. 7.13 Counsel also relied on the case of Mathews Chitupila Chalwe v. The People,8 wherein it was held that lack of consent, use of threats and prevalen~e of the offence are aggravating factors. Counsel submitted that in the present case, the appellant took advantage of his eight-year-old daughter, who could not consent to sexual relations. That he used threats by beating her to stop her from revealing the sexual abuse. In addition, the offence of incest is on the rise and the lower Court was therefore on firm ground when it imposed the life sentence on the appellant. -J14- 7.14 In totality, counsel submitted that the appeal should be dismissed for lack of merit and that the conviction and sentence should be upheld. 7.15 In her oral submissions during the hearing of the appeal, Miss Chilufya conceded that the voire dire was indeed d,efective, but submitted that even if the evidence of PW7 the prosecutrix, were to be expunged from the record, sufficient evidence to support the conviction would remain. 8.0 OUR DECISION 8.1 We have scrutinized the r~cord of appeal and considered the arguments made by counsel on both sides. In order to determine the first ground of appeal, it is important to look at the question whether there are any consequences for failure by a trial court to record the questions posed to the prosecutrix during a voire dire. In casu, it is clear that the answers given by the prosecutrix were recorded and so was the ruling as to whether she could give sworn evidence but not the questions which she was asked. -JlS- .. I 8.2 In the case of Sakala v. The People, 9 it was held that in the absence of a proper voire dire, the Court must discount the evidence of the juvenile. The Court also stated that: "It is essential with regard to a juvenile of tender years that the trial court not only conduct a voire dire but also record the / questions and answers and the trial court's conclusion to enable the appellate court to be satisfied that the trial court has carried out its duty." 8.3 The purpose of recordiµg questions and answers during a voire dire and a ruling thereafter is to demonstrate that the trial Court carried out its duty in satisfying all the requirements of Section 122 of the Juveniles Act. In casu, it is common ground that the evidence of the prosecutrix should be expunged from the record on the basis that the voire dire was defective. We agree with this position and hereby order that the evidence of the prosecutrix (PW7) be expunged from the record. -J16- • 8.4 We shall now consider whether to remit the case to the Subordinate Court for retrial. 8.5 Section 16(3) of the Court of Appeal Act,3 which is essentially a replica of Section 15(2) of the Supreme Court Act, grants us discretion to order a retrial if the in t~rests of justice so require. 8.6 In the case of Simon Zandala v. The People, 10 we quashed the conviction and ordered a re-trial after finding that the child who was the only eyewitness to a sexual offence, was barred from giving evidence after qaving been subjected to a defective voire dire. 8. 7 In casu, having.discounted the prosecutrix's evidence, we have looked at the remaining evidence; there was an alleged admission of guilt made by the appellant to persons not in l:},Uthority. The lower court did not even allude to it and therefore the issue of whether or not it was made remains unresolved. -J17- .. :: 8.8 Nevertheless, there is medical evidence that somebody had canal knowledge of the prosecutrix who was only 8 years old at the time, and that, the prosecutrix was in the appellant's care at the material time. Further, the evidence to the effect that the appellant was heard by the headman and other~ after the fact also remains on record. 8.9 In the case of Sikota Wina and Princess Nakatindi Wina v. The People supra, the brief facts were tJ;iat, the two appellants / stood charged with two offences under Section 29 and 30 (d) of the Narcotic Drugs and Psychotropic Substances Act, 1993 (No. 37 of 1993). The Coyrt found that there was no evidence to prove the allegations against them. The question of retrial ~ was considered and the Court held inter alia that: "A retrial could be ordered if the first trial was fl.awed on a technical defect and there were good reasons for subjecting the accused to a second trial in the interest of justice. Where,- as here, the prosecution had adduced all the evidence it had, there would be no point to a retrial." -J18- The Court further stated that, "in our considered view, to have been sufficient for a retrial, the point of law or mixed law and fact raised by the Director of Public Prosecutions in this case would have required to satisfy the Court that, on the evidence as it stood, the appellants were as a matter of law guilty of the charges against them. Messrs Munthali and Wangwor who, appeared for the state were not prepared to make such a submission." / 8.10 In the case of Zulu v. The People, 12 it was pronounced that; "The time spent in prison by an appellant is a consideration when the court is deciding on whether to order a retrial." 8.11 The facts of, this case are different from the case of Sikota Wina and Princess Nakatindi Wina v. The People supra. That case involved the contravention of Sections 29 and 30 (d) of the Narcotic Drugs and Psychotropic Substances Act, 1993 (No. 37 of 1993 and the evidence was simply inadequate to prove the allegations against both appellants. It was decided on its own merits. -J19- . • ' 8.12 On the other hand, the present case is of incest contrary to section 159 ( 1) of the Penal Code and if the evidence of the procecutrix were not excluded on a technicality, there would have been a chance of securing a conviction. In this case the prosecution did not adduce all the evidence that it h~d and it was not to blame for that. This case should also be determined on its own merits. / 8.13 Applying the case of Zulu v. The People, the record indicates that this case allegedly occurred between May and August, 2019 and that the appellant has been in custody since August, 2019; for about 3 years; This period is not too long in the circumstances of this/ case. / 8.14 We thus hold that it is in the interest of justice to remit the case to the., Subordinate Court for retrial and we exercise our discretion to do so pursuant to Section 16 (3) of the Court of Appeal Act. 8.15 For the preceding reasons, the 2 nd ground of appeal is otiose. -J20- • 9.0 CONCLUSION 9.1 Overall, it may be said that the appeal is upheld on the premise of the defective voire dire which is linked to the 1st ground of appeal. It follows that the conviction and sentence cannot stand and they are hereby quashed. Nevertheless, the case is remitted to the Subordinate Court for retrial. It is ordered that the appellant remains in custpdy until further order of the trial court. C. F .,,-R. Mcheng DEPUTY JUDGE PRESIDENT ........ C. K. Makungu COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE -J21-