Charles Phiri v People (APPEAL NO.89/2012) [2013] ZMSC 55 (9 July 2013)

Jl ,FrJM 1--A,._ IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA AND LUSAKA (Criminal Jurisdiction) APPEAL NO.89/2012 BETWEEN: CHARLES PHIRI AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mumba, Act. DCJ, Wanki, JS and Lisimba, Act. JS On 4th December, 2012 and 9 th July, 2013 For the Appellant: Mr. S. K. Mumba, Senior Legal Aid Counsel - Legal Aid Board For the Respondent: Mrs. C. L. Phiri, Senior State Advocate - National Prosecutions Authority JUDGMENT MUMBA, Act. DCJ delivered the Judgment of the Court Cases referred to: 1. Muvuma Kambanja Situna Vs The People (1982) ZR, 115 2. Kenneth Mtonga, Victor Kaonga Vs The People, SCZ Judgment Number 5 of 3. Manongo Yaoni Vs ·The People (1981) ZR, 152 4. John Mkandawire and Others Vs The People (1978) ZR 46 ........ _ . . ---- --- ~~­ ~ -~ - -= - - - - J2 The appellant who was sentenced to death, was convicted of one count of aggravated robbery contrary to section 294(2) of the Penal Code, Cap 87 of the Laws of Zambia. The particulars of the offence are that on the 9 th of November 2008, at Chipata, in the Eastern Province of the Republic of Zambia, the appellant, together with other persons unknown whilst being armed with a firearm, AK47 and an iron bar, did steal the sum of ZMK 45,000,000 plus 5 cell phones altogether valued at ZMK48, 230, 000 from Chris Mvula and at or immediately before or immediately after the time of such stealing, did use or threaten to use actual violence to the said Chris Mvula in order to overcome resistance form the stealing .. He was sentenced to death. The prosecution evidence is that on 9 th November 2008, PWl, Christopher Mvula was attacked at his home around 19 hours by a group of about four armed men. According to PWl and PW2, Rebecca Mvula, the wife to PWl, one of the rr.:_~n was carrying a fire arm, another a metal bar while a third was c:1rrying a screw driver. The attackers all wore head socks up to their foreheads but did not conceal their faces. Two of the men, one carrying a firearm and the other a metal bar took PW2 to the bedroom · ·1here PW 1 was. Once ·----------- ti- . - ·- J3 In ~.he bedroom, the man with the firearm fired into the ceiling to illustrate that the gun was not a toy. The man with an iron bar hit PWl using the same bar rendering him "paralysed". However, PWl stated that he remained conscious even after being hit with the iron bar. The assailant collected the money that was lying on the bed as well as the cell phones. According to the witnesses, the attack lasted for about 30 minutes and the light was on, the entire duration of the attack. PWl and PW3 Sara Mvula, sister to PWl, were subsequently hospitalized as a result of the injuries sustained during the attack. On 14th November 2011 an identification parade was conducted, consisting of 11 men. PWl and PW2 positively identified the appellant as one of their attackers and described to the trial court the role he played during the attack. According to the witnesses, the appellant is the one who hit PWl with an iron bar and collected the money and cell phones from the bedroom. A search at the scene of crime led to the recovery of 2 empty cartridges, three pieces of a pistol grip and a black Nokia cell phone . . cover. PW7, Assistant Superintendent Stephen Mvula Zulu, a :u z;;z_ 2L J4 ballistics expert carried out tests on the spent cartridges and concluded that they were both fired from the same firearm which could either be an AK4 7 rifle, SHE rifle or an RPK 194 7 rifle. The ballistics expert was of the opinion that the pistol grip recovered from the scene is a component of an AK47 rifle. The appellant was apprehended on the 12th of November 2008 in Lusaka, the sum of ZMK2, 050, 000 was found on him. A search at the home of the appellant's in- laws' where he was staying resulted in the recovery of the sum of ZMK4, 810,000 and a Nokia 6020 cell phone which PW 1 had reported stolen, he subsequently identified it as his at the police station from a number of handsets shown to him. When the appellant was identified at an identification parade by both PWl and PW2, the photographs of the identification were taken, these were produced in evidence. In his defence, the appellant denied having robbed the complainant as alleged stating that the money that was recovered from him upon apprehension was proceeds realized from the sale of maize on the 3 rd of November 2008. He stated that that was the =e¾f5t:i#i&ftii · · : - · ~ ·™1 :a Z o •: a,Z¾ r . _.......,......._ .___,.. .. JS 1noney that he gave to his wife and which the police subsequently recovered. As to the Nokia 6020, recovered from the home of his in laws, the appellant's testimony was that the phone belonged to him as he had bought it on 23rd September 2008 and was able to recite the serial number of the said phone. He further stated that he had a receipt for the said phone and had sent for it but he did not produce it. With regard to the identification, the appellant's testimony was that the identification parade was conducted on the . 15th of November 2008 and not on the 14th of November 2008 as alleged by the prosecution. He further stated that he had seen PW 1 and PW2 in the office of the arresting officer a day before the parade was conducted and had raised a complaint in this regard. In considering the evidence before him, the learned trial judge found that the prosecution had proved its case beyond reasonable doubt and convicted the appellant. The learned trial Judge found as a fact that indeed PWl 's household was brutally attacked on the 9 th ~ay of November 2008 by a group of four armed men during which the sum of ZMK45, 000,000 and five cell phones were stolen. The trial Judge also found that PWl and PW3 suffered severe injuries which led to their hospitalization at Chipata General Hospital. The ...,_ - . , - - x:s:;;::;:r= ... ; ---TZZ• jfF... :rt a:t ff( I I twF .... ---· . fF33775 ; = ::: J6 trial court further found that during the attack that lasted about 30 minutes, a firearm was used and shots were fired. The trial court also found that each of the prosecution eye witnesses gave a fair description of the attackers and the role that each of them played during the robbery. The identification of the appellant by the prosecution witnesses was reliable as they had ample opportunity to observe their attackers as there was sufficient lighting in the house. The trial court took into account the fact that the witnesses . had given a fair description of the appellant and gave details of the role he played during the attack which was that the appellant hit PWl with an iron bar and collected the money and phones. The trial court rejected the testimony of the appellant to the effect that the Nokia 6020 cell phone belonged to him as he could not produce evidence to show that it was possible for the manufacturer to make two phones with the same serial number. The trial court also discounted the explanation by the appellant on the huge sum of money found on him and his wife as an odd coincidence and concluded that it was stolen from the complainant. To determine whether or not a firearm was indeed used,' the trial court relied on the evidence of the scenes of crime officer who picked up spent -;.::ozrp .. ; "'· . 2 s#1 ·:. s=E - ±ff 1 J7 cartridges and the broken pistol grip at the scene as well as the evidence of the ballistics expert to arrive at the conclusion that a fire arm was used. The appellant has filed two grounds of appeal with written heads of argument as follows: 1. The learned trial judge erred in law and in fact in dealing with the evidence of identification of the appellant; and . 2. The learned trial Judge misdirected himself in law and m fact in constrnirig against the appellant the recovery of cash and the Nokia cell phone. In support of the first ground of appeal, learned Counsel for the appellant argued that by relying on the evidence of identification from PWl and PW2, the trial court did not give due consideration to the circumstances prevailing during the attack which would render the identification unreliable. It was argued that the . trial court ignored the fact that a gun was fired and PWl was beaten, a situation that traumatized the witnesses and cast doubt on the reliability of their observations. To support this argument the jjfj;;;ji . e-¥ - e t;t I ::. A½ #4 f ... __ . JS learned counsel cited the case of MUVUMA KAMBANJA SITUNA VS THE PEOPLE 111 in which it was held, inter alia, that: "The judgment of the trial Court must show on its face that adequate consideration has been given to all relevant material that has been placed before it, otherwise an acquittal may result where it was not merited." The learned counsel further argued that the identification parade was not fair as PW 1 and PW2 had seen the appellant when he was taken to the CID office on the 14th of November 2008. To support this argument, counsel for the appellant cited the case of KENNETH MTONGA, VICTOR KAONGA VS THE PEOPLE 12 1, in which it was stated that: "The police or anyone responsible for conducting an identification parade must do nothing that might directly or indirectly prevent the identification from being proper, fair and independent. Failure to observe this principle may in a proper case nullify the identification." In the second ground of appeal, learned Counsel argued that the recovery of the money on the appellant and his wife should not 1$ = . -· _........., __ __ . - -. W ~¥-%&'.§?fr# ;# ~ iif7$zi ·r ~ J9 have been construed against the appellant as he had given an explanation as to the source of the money. Counsel referred to the case of MUVUMA KAMBANJA SITUNA VS THE PEOPLE 11l in arguing that the trial Court did not give due consideration to the explanation of the appellant. On the recovery of the cell phone, it was argued that the trial court's conclusion on how the appellant was able to recite the serial number of the . cell phone was unjustified and therefore a misdirection on the pa~t of the court. Counsel further argued that there was no evidence that the phone belonged to the complainant and the production of the receipt by PW 1 that was admitted into evidence by the trial court was irregular as the same should have been produced by the Police. On these submissions, the learned counsel urged us to quash the conviction and set aside the sentence. In response to the first ground of appeal, Counsel for the respondent argued that the trial · court was on firm ground in accepting the evidenc~ of identification of the appellant. She _argued that from the evidence of PW 1 and PW2, it was clear that the - -f - - - - . f t l E :.:a: 11""' JlO witnesses had ample opportunity to observe the appellant through an attack that lasted for over 30 minutes in a well lit room. She also highlighted the fact that the appellant did not conceal his face during the attack. Counsel further argued that the evidence of identification is supported by the appellant's possession of the stolen Nokia cell phone. As to the second ground of appeal, the learned counsel for the respondent argued that the trial Court was on firm ground in rejecting the explanatio-!1 of the appellant on the source of the cash and the stolen cell phone found in the appellant's possession. It was argued that while PW 1 was able to show proof of purchase of the said phone, the appellant failed to produce evidence to rebutt that of the prosecution witness. Counsel further argued that having adduced evidence that the appellant attacked and robbed PW 1, the only reasonable conclusion to arrive at would be that the cash recovered from the appellant was part of the stolen money. We have carefully considered the evidence adduced at trial and the submissions made on behalf of the appellant and the respondent, we are grateful to both counsel. On the first ground of i a, e .. ----.aa+---+-- - T -- ' '"'cirn ~ · Jll appeal, the appellant argues that the trial Judge erred in the manner in which he dealt with the evidence of identification. The case against the appellant rests mainly on the identification parade that was conducted on the 14th of November 2008 as well as the recovery of a Nokia 6070 cell phone which the complainant identified as his. From the evidence adduced by the prosecution, the attack took place in a well lit room and lasted about 30 minutes. In cross examination, both PWl and PW2 testified that even though they were scared, they were able to observe the two men who were in the bedroom and described in sufficient detail the role the appellant played during the attack despite the stress of the moment. These witnesses were also able to recall some of the clothing the attackers wore and stated that their faces were not concealed. The witnesses denied having seen the appellant at the police station prior to the identification parade. The officer who conducted the identification parade also denied that the appellant raised a complaint with regard to the manner the parade was conducted. The appellant did not challenge the officer on that pint in cross examination. · ---............... -- S:fr 4¥¥;;-fi44 HM!: e-= J12 Even if we were to consider the appellant's claim that the witnesses had seen him prior to the parade, it would be insufficient to nullify the identification as these witnesses had ample opportunity to observe the assailants especially PW2 who was not physically assaulted by the attackers. Furthermore, the evidence of identification is strongly supported by the finding of the stolen Nokia phone with the appellant. In the case of KENNETH MTONGA AND VICTOR KA~NGA VS THE PEOPLE 121, we stated that: "If, therefore any irregularity committed in connection with the identification parade can be regarded as having any effect whatsoever on the identification, it would not be to nullify the identification given the ample opportunity available to the witness. If the identification is weakened then of course all it would need is something more, some connecting link in order to remove any possibility of a mistaken identity." · In this case, the cell phone amounts to "something more" and is the link that connects the appellant to the scene of crime and subsequently removes any possibility of a mistaken identity . . - J13 The above position is further fortified by the case of MANONGO YAONI VS THE PEOPLE (3 J in which the appellant was found with a hat that had been stolen from the complainant. In that case, we held, inter alia, that: "The finding by the trial commissioner that the identity of the appellant did not depend entirely on the evidence of P. W. l alone, that the evidence of P. W.1 was fully corroborated by the evidence of P. W.2 and that it was also supported by the evidence of P. W.3 and the recovery of P3 (the hat) was sufficient to negative the defence counsel's submission that the trial commissioner had misdirected himself by accepting without question the evidence of identification by P. W. l and P. W.2. ,, It is our considered opinion that this is not a proper case in which the identification would be nullified as not only did the witnesses have ample opportunity to observe the assailants as has already been indicated, the appellant was also found with a phone belonging to the complainant. We agree with the respondent's Jl4 Counsel's submissions and find that the learned trial judge was on firm ground when he relied on the evidence of identification adduced by the prosecution. On this basis, the first ground of appeal lacks merit and is accordingly dismissed. With regard to the second ground of appeal, it is our view that the trial Court was on firm ground when it concluded that the recovery of a large sum of money as well as the Nokia 6070 cell phone with the appellant soon after the robbery corroborated the evidence of identificatiqn of the appellant. Indeed, we find that the explanation given by the appellant on the source of the money was not sufficient to warrant the finding as an odd coincidence that could stand alone. If the only evidence against the appellant was the recovered money, then it would not have been sufficient evidence on which to conclude that he had participated in the robbery. However, in this case there is also the evidence of identification as well as the stolen phone. To support this position, we refer to the case of JOHN MKANDAWIRE AND OTHERS VS THE PEOPLE 141 in which the appellants were charged with murder, the daughter to the deceased who was present during the ordeal identified the appellants at an identification parade and the police L iiifZtt . ifiin ---- ---- - .... .....,_ _____ -- F==-=,- ,;;.;&$;w·r: 3zz siZ i Jl5 recovered a firearm 'as well as several rounds of ammunition from a room occupied .by two of the appellants. In that case, we held that: "The discovery of a pistol and rounds of ammunition hidden in the room of two of the accused persons would not, standing alone, have constituted a; sufficient link, but when considered in the light of all the other evidence, it constitutes an item of evid';ence which cannot be. ignored and which goes to su~pport the other evidence". Counsel for the appellant also argued that the trial Court erred when it concluded that the Nokia 6070 belonged to the appellant. We do agree with counsel for the reapondent that the trial Court was on firm ground in concluding that the cell phone admitted into evidence belonged to PWl as the appellant failed to prove his claim of ownership of the said phone. J>Wl showed proof of ownership by producing the receipt he wa~; issued with on purchase, it contained the relevant' details of the said phone. With regard to ·the appellant's argument aa to the mode of production of the phone receipt and its authend.city, we wish to -----~-~-=-,~ f ~ ==-::d:. @¥§## (W55-·--gSE7 J~ • - · -·• . vg i • s : e-Fist~ i2 F# J16 indicate that it is clear from the record of appeal that the appellant did not object to the production of the receipt into evidence. Further, the necessary foundation for the production of the receipt was laid and the witness stated that the receipt had been in his custody. The second ground of appeal also fails. We find no merit in this appeal and accordingly dismiss it. We uphold the conviction and sentence by the trial court. F. N. M. Mumba ACTING DEPUTY CHIEF JUSTICE M. E. WANKI SUPREME COURT JUDGE ..........•..•..•..........••••••...........•. M. LISIMBA ACT. SUPREME COURT JUDGE §jQ C 5J'. T??=.., p;n-#ft --s: t: