Natoya v People (S.C.Z. Appeal 195 of 2015) [2017] ZMSC 274 (9 May 2017)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 195/2015 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: CHARLES NAYOTA AND THE PEOPLE APPELLANT RESPONDENT Coram: Phiri, Muyovwe and Hamaundu, JJJS On the 5th April, 2016 and 9th May, 2017. For the Appellant: For the Respondent: Mr. K. Muzenga, Deputy Director, Legal Aid Board Mrs. M. Mwenya, Legal Aid Counsel Mr. P. Mutale, Deputy Chief State Advocate, NPA Mr. M. Mulenga, State Advocate, NPA JUDGMENT Phiri, JS, delivered the judgment of the court. Cases referred to: 1. Whitehead vs. The People (1968) Z. R. 9 2. Emmanuel Phiri vs. The People (1982) Z. R. 77 This is an appeal against conviction only. The appellant was tried and convicted by the Subordinate Court at Kalabo, of the offence of Indecent Assault on a Female contrary to Section 137 of the Penal Code, Chapter 87 of the Laws of Zambia, as amended by Act No. 15 of 2005. The particulars of the charge were that the appellant, on the 4th day of October, 2015 at Livingstone, in the Livingstone District of Zambia, unlawfully and indecently assaulted a named woman. The appellant was subsequently referred to the High Court at Livingstone for sentencing, and was sentenced to the statutory minimum sentence of 15 years imprisonment with hard labour with effect from the date of his arrest. The appellant was mainly implicated by PW2, who operated a makeshift store next to PWl’s house. The evidence established that the victim was a female aged 18. She suffered from severe mental retardation whose extent was medically evaluated by PW3, to be between 30 and 35 degrees, which was equivalent to the mental capacity of a child aged between 4 and 6 years. She had problems with communication and self care skills. She had hearing problems and always smiled. PW3, who evaluated the victim’s mental abilities, was a psychiatric clinical officer employed by the Livingstone General Hospital. J2 The prosecution’s case was briefly that around 11.00 hours, PW2 was at his makeshift store which was located near the house where the victim lived. He observed that the victim, who he knew to be mentally retarded, remained alone at the house from about 08.00 hours when her guardian, PW1, left the house to go somewhere. PW2 and the appellant lived in the same neighbourhood and knew each other well; and they both knew the victim very well, by both name and character. PW2 saw the appellant enter PWl’s yard from the front part of the house to the place where the victim was seated on the verandah. The appellant later went to the back of the house. He later returned to the front and got himself a stool which he placed in front of the victim and sat on it. PW2 then saw the appellant use what was perceived to be sign language to the victim. The appellant then stood up and unfastened his zip; but before the appellant proceeded any further, PW2 rushed to the scene and chased him away. When PW2 returned to his makeshift store, the appellant returned to where the victim was. PW2 again chased the appellant away. PW2 again, returned to his store to attend to customers who J3 had come. When he looked back to where the victim was seated, he saw the appellant grope the victim’s thighs. PW2 then rushed back to the victim and chased the appellant away. This time around, PW2 asked another neighbour to look after the victim until her guardian returned. PW2 later reported the events to PW1 and to the Police. According to PW2, the appellant was well known in the area, and his house was opposite PWl’s house where the victim lived. When put on his defence, the appellant opted to remain silent. The learned trial Magistrate accepted the evidence of identification of the appellant given by PW1 and PW2. He also accepted the evidence given by PW2 to the effect that the appellant approached the victim on two occasions at which he was chased before he returned to the victim and succeeded in groping her. The learned trial Magistrate also considered whether the victim gave her consent to the appellant’s amorous advances; but concluded that although the victim was aged 18 years, she was not capable of giving consent on account of her severely retarded mental faculties as shown in the medical examination report which was produced before the J4 Court. The trial Court concluded that the appellant was seen by PW2 doing his indecent acts on the victim; and convicted him as charged. Mrs. Mwenya, on behalf of the appellant, filed two grounds of appeal couched in the following words: 1. 2. The learned trial Court erred in law and in fact when it convicted the appellant in the absence of evidence to the effect that the girl in question did not consent to the act of indecency. The learned trial Court erred in law and in fact when it convicted the appellant on the uncorroborated evidence of PW2. In support of ground one of the appeal, Mrs. Mwenya submitted that there is no provision in the Penal Code, Chapter 87 of the Laws of Zambia, which specifically provides for the offence of indecent assault of an imbecile, unlike the offence of defilement of an imbecile which is specifically prescribed by Section 139; while Section 138 deals with defilement of any girl generally. It was contended that, for the offence of indecent assault as provided by Section 137(1) of the Penal Code, Cap 87 of the Laws of Zambia, consent of any woman or girl can be a defence for an accused person if the girl is above 12 years old. The learned J5 Counsel for the appellant went on to recite the law applicable (which citation we consider incorrect) as follows: “137. (1) Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony and is liable to imprisonment for fourteen years. (2) It shall be no defence to a charge for an indecent assault on a girl under the age of twelve years to prove that she consented to the act of indecency: Provided that it shall be a sufficient defence to any charge under this subsection if it shall be made to appear to the Court before whom the charge shall be brought that the person so charged had reasonable cause to believe, and did in fact believe, that the girl was of or above the age of twelve years”. We will return to this text of the law a little later. It was argued, on behalf of the appellant, that the absence of consent by the victim was an essential element of the offence of indecent assault on a female; and in the present case, there was no evidence led to establish the absence of consent. It was contended that the victim in the present case was 18 years old and PW3’s evidence was only centered on establishing her mental capacity, without any guide on whether she was capable of giving sexual consent or not; and whether a girl in her condition reacts when she is not pleased. J6 We were referred to PWl’s evidence that “when I talk to Elina, she will get what I am saying, but she will not talk”. Learned Counsel submitted that there was evidence that the appellant communicated with the victim using sign language before committing the act of indecency; and there was a possibility that she got what the appellant was saying and did give her consent. In support of this argument, we were referred to the High Court case of Whitehead vs. The People*11 where the complainant showed her displeasure of the offender’s indecent acts by slapping him in the face. It was further argued that since there was no evidence establishing that the appellant knew that the victim was an imbecile, the statutory defence of consent was available to him regardless of the fact that he did not raise that defence in cross­ examination of PW1 and PW2, as he opted to remain silent. In support of ground two of the appeal, it was submitted that the trial Court fell in error when it convicted the appellant on the basis of the uncorroborated evidence of PW2, and, that the Court did not warn itself against convicting the appellant on the uncorroborated evidence of that witness. In support of this J7 argument, the case of Emmanuel Phiri vs. The People*2’ was cited, to emphasize on the requirement of corroboration in all sexual offences, including indecent assault on a female. It was argued that there is a lingering danger of false implication in this case, which danger the trial Court did not rule out. In response to the two grounds of the appeal, the position taken by Mr. Mutale, the Deputy Chief State Advocate, was that he found it discomforting to support the conviction because of the absence of corroboration in view of the failure by the victim to testify by reason of her diminished mental capacity. It was Mr. Mutale’s view that this case was not properly investigated by the Police resulting in failure by the prosecution to call an independent witness from the vicinity of the crime scene, considering that the offence was said to have taken place in broad daylight around 11.00 hours; in particular, that the prosecution should have called the person named Ruth to whom PW2 reported the indecency. Mr. Mutale did not address us on the first ground of the appeal which dealt with the issue of consent. J8 We have carefully examined the two grounds of the appeal and the judgment of the trial Court, as well as the record of the appeal and the submissions made by both parties. To begin with, we wish to say what we have said many times before, that we are not bound by the reluctance by the respondent to support the appellant’s conviction. We will determine the merits of each of the two grounds of the appeal canvassed on behalf of the appellant, as they appear to us. In the first ground, the gist of the appellant’s argument is that the prosecution failed to adduce any evidence of lack of consent, by the victim, to the acts of indecency; which was an essential element of the offence of indecent assault on a female contrary to Section 137 of the Penal Code, Chapter 87 of the Laws of Zambia. We note that the statement of the offence stated the offence of Indecent Assault on a Female, contrary to Section 137 of the Penal Code, as amended by Act No. 15 of 2005. The offence was alleged to have been committed on the 4th day of October, 2013. We note, however, that the text of the statutory provisions for this offence which was quoted by the learned Counsel for the appellant, J9 in his submission in support of the first ground of the appeal, was as it existed prior to the Penal Code, amendment Act No. 15 of 2005. The correct text of the law should have been quoted, as amended, as follows: “137. (1) Any person who unlawfully and indecently assaults any child or other person commits a felony and is liable, upon conviction, to imprisonment for a term of not less than fifteen years and not exceeding twenty years. (2) It shall not be a defence to a charge of an indecent assault on a child to prove that the child consented to the act of indecency. Clearly, the appellant’s argument in support of the first ground of the appeal was premised on the text of the law that did not exist on the 4th of October, 2013 when the appellant was charged. This however, does not mean that the indictment was faulty. It was not. The error was in the learned Counsel’s citation of the law as it existed. She referred to the old provisions. The first ground of the appeal suggests that it was desirable for the prosecution to have led evidence of the absence of consent by the victim. We do not hold this to be the correct approach in the cases where medical evidence is led to establish the victim’s mental incapacity. J10 In the present case, evidence was adduced by PW1 and PW3 to conclusively establish that the victim, although aged 18 years at the time of the offence, was unable to look after herself; she was also unable to speak or listen; that all she was able to do was to smile at everyone; and that she had the mental capacity rating of a child of tender age of between four and six years. Clearly, it follows that the victim was completely incapable of giving her consent to sexual acts. It is precisely because of the need for the protection of the dignity of such disadvantaged human beings; as are the children that the law against indecent assault extends to protect imbeciles, while disallowing the defence of consent. We do not agree with the submission in support of the first ground of the appeal and we find no merit in it. The complaint with regard to the second ground of the appeal is that the appellant was convicted on the uncorroborated evidence of PW2; and that the trial Court failed to warn itself against the inherent danger of false implication. It is common cause that the appellant was implicated by PW2, an eyewitness who was neither related to the victim nor the appellant. They were all neighbours Jll and the acts of indecency occurred in broad daylight at the victim’s guardian’s house. It is also material to note that the victim and the appellant were well known to PW2. PW2 perceived the events as they unfolded with his own eyes and senses; not just once, but three times. According to PW2, the appellant approached the victim who was seated at her verandah, three times. He observed that the appellant made signs and suggestive moves towards the victim and PW2 took steps to protect the victim by approaching him and chasing him away from the victim; but the appellant kept returning to the victim until on the last occasion when he unzipped his pair of trousers and began to grope the victim’s thighs before he chased him finally. The evidence on record establishes that the appellant was not implicated by the victim, so as to require corroboration; but by PW2, the eyewitness. PW2 was an independent witness for all intents and purposes; he saw the acts of indecency and was believed by the Court. It is our view that the special disposition of PW2 in the circumstances of this case did not require corroboration J12 and there was no basis for the Court to treat him as a suspect witness; or to warn itself of the dangers of false implication. This is one of the cases where there was no need for additional evidence to corroborate PW2’s evidence, because it was clear and convincing in every aspect. In our considered view, the ratio decidendi in the Emmanuel Phiri case applied where the offender was implicated by the sole evidence of the victim or another suspect witness; particularly that, in the present case, the appellant who had the opportunity to challenge PW2’s evidence during trial, did not do so. We find no merit in the second ground of the appeal. The net result is that the entire appeal has no merit and we dismiss it. G^J Phiri E. N. C. Muyovwe SUPREME COURT JUDGE SUPREME COURT JUDGE SUPREME COURT JUDGE J13