Chisoni Banda v People (Appeal no. 56 of 1991; SCZ Judgment No. 3 of 1991) [1991] ZMSC 82 (15 November 1991)

U'lJ ~CI Judgment no. 3 of 1901 I • . . Appeal no. ~6 of 1S91 IN HIE SUPREME COURT Of ZAMBIA HOLDEN AT LUSAKA (criminal jurisdiction) CHISmU BANDA Appellant -v- THE PEOPLE ~espondent CORAM: Ngulube, D .. C. J., Gardner 9 A. J. S. and Sakala. J. S .. On 15 tti October, and 19th November, 199 t For th~ Appellant: S. K" Munthali. Senior Legal Aid Counsel For the Respondent: K- Lwali. Assistant Senior State Advocate J U O G M E N T Ngulube, O. C. J. del_ivered the judgment of the court Cases referred to: 1) 2) Shamwana and Others -v- The People (1985) ZR 41 The Peop 1 e -v- John Ng I uni ( 1977} ZR 375 The appellant was convicted of t1"1~ murcler of Lamiwe Dancia aml sentenced to. capital punishment.. n1e particulars aileged ti1at on 13th October, 1989. at Chingala Village in Chief Kawaza 1 s area in Katete District, he murdered the dec8ased. The pr-osecution case estoblished that the deceased died from traumatic perforation of iler private parts and rectum and the allegation was that it ~,a~s the appellant wt10 inflicted the fatal injuries Dy violent insertion of a k11obkerrie. There was evid~nce from a numb~r of witnesses that the deceased told them it \'las Ct1isoni who tiad assaulted her and injured l1ei"' very badly lnclucHng in the private parts. In ~~rticular, 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 whil2 later, tne deceased came and fell inner y.,,d .,;:1d t old ?\.15 tti-} t Cl'li soni had ass~ulted i1er and injure d her with a knobkerrieo PW1 was one of those summoned and the deceased told t1im 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 escdped and ran away from them but was recaptured~ PH2 testified that the appellant admitted that he had killed the deceased and gave the reason tnat she had refused to have I sexual intercourse ·with hifli. Tilere was, in addition. a full confession recorded t>y PW7 , a police officer and witnessed by r\-16, a civilian who happened to be at the police station to report another ·matt~r altogether. The warn and caution statement was admitted at first without any objection but when al!egations of as s(1ults and inriticem,±nts were made during t llP. defence case, 'the learned t·tial judge correctly 11eld a belated trial 1eJiti•1irt the. tr"ial and still ruled i n favour of admitting the statemente In the course of dealing with the warn ancJ caution statement, the learned counsel then acting for the appellant disclosed to ti1e court that he was surprised by the allegation of involuntariness being raised by the accused since his earlier instrustions were that it was a free and voiuntary statement and counsel gave as his opinion tllat the confession was voluntary. The learned trial judge in his judgment explicitly relied quite heavily on defending counsel's statements from the bar as fortifying his finding, on the question of voluntariness and consequent admissibility of the statement . lhe f irst. ground of appeal at t acked t i1e finding that the warn and caution statement was voluntJry while 1the second ground attacked the admission of the same· statement on the basis of the unfortunate rema_rks frorp the bar by the defending counsel . In relati on to the first limb, · Mr . Hunthali relied on the evidence of Ph\i :i!10" testified that he did not hear any warn and caution dCtually being administered and ttrnt at f irst the appe llar1t \.,-as reluctant to spe,11< and only did so wl1en PW7 pers jsted . The objection raised by the defence was based on alleged assaults and these were discounted after the learned trial judge found on an i ssue of credibil·i ty tht PWs o and 7 1-1ere to be believed . We can find notlling wrong with that determinar.ion . However, the compl aint cocerning the absence of any actual administration of the warn and caution al.though it was written at the top of the statement, • , I ,r was weli taken having regard c.o tne ,~vjdence of P~-:3. (63) In te,--n;s of Shamwana and Others -v- The People (1) tt,e failure to administer a warn and caution raises a rebuttable presumption of involuntdriness anc.i unfairness and it is for the prosecutfon to advnnce an explanatio11 acceptable to the court for the breach of the relevant judge's rule if the court is to exercise its discretion in favour of a~mission. iJo explanaUon is available in ti1is case where PW7 took the position that he had 6Jministered a warn and caution while P~J6 contradictE:~d this. ·1here is yet a:1otr1er reason why we s!10u}d uphold Mr. Hunthali's objection to the ~-1arn ar1d caution statement. This rel ates to the second ground of iippeal wh i '.:r1 attacked the 11erJ.vy reliance placed by the learned trial judge on the def~nce counsei 1 s damaging statements from the bar, In note 11 of para. 113/ of Halsbury's, 4ti'l Edition, volume 3, the learned authors suggest that whereas a confess10n of guilt is made to counsel before trial, he could decline to take up the defence of the case; where a confession made to him during triil does not debar nim from testing the prosecution case to the full and setting up available defences so long as he does not set up ar, affirmativa case inconsistent with the confession. The discussion at para 11Y5 of the same volume of Halbury's under J. i nes the duty of non-disc l osurr~ by counsel of information Coilf i C:ed in him by his c1ient which counsel is not entitleo to communicate to anycne else if it would be to the detriment of his clienL. ~le agree witi1 these observations. In this case. tne stance taken by defending counsel, hostile as it w2.s to the accused's interests. not o:·1ly put the appellant in a fix, as the saying goes, but also resulted in actual prejudice when the learned trial judge expressed satisfaction that, because Llis own lawyer had said so. the confession statement recorded by PW7 must 11ave been free and voiuntary and the objections raised by the appellant had to be dismissed. \4e do not see ilOw the appellant's challenge to the admission of his warn and caution statement can be Sdid to have received fair consideration when defending counsel made damaging statements 9 con tra,"y to l1i s duties to ti1e client. The grounds in this respect are up~eld and the statement recorded by PW7 will be disregard~d for the purposes of this Judgment. 4/ •• , •••• #Mr. Nunthali - (64) ~lr. l'iunthali sought to argue .that the learned trial judge did not rely .on any other evidence and tt1ut we should nor. consider such other evidence. On the contrary, as Mr. Lwali pointed out. there was other evidence which the learned trial judge accepted . This cort':~ist.i;)d of the statements made by the deceased to PWs 1 and 5 and the con fession made to PW2, a civilian who had apprehended the appe 11 ant and against wi1om tl1ere was no suggestion of any impropriety. In relation to PW5 to whom the deceased made a report immediately after the incident, and PW1 who was told the same things later that day Mr. Lwali submittea tl1at their evidence was admissible as res gestae on the grounds whicii were fully discussed by Cullinan J, as tie then was, in The People -v- John Ng'uni (2). He submittecl tl,at there was no possibility in this case that at the time when the deceased spoke to the witnesses she could have distorted the account or concocted a story. We .,,: respectfu lly agree with the decision in Ng'uni that evidence of a statement made by a person who is not co.il ed as a witness (in this case.the deceased) may be admitted as part of the res gestae and can be treated as an exception to the hearsay rule provided it w.:is made in such conditions of involvement or pressure. as to exctude the p.:issibilit y o;" concoctfon or distortion to the advantage of the maker- o,' to t he Ciisadv.mtage of the accused . The tests discussed in Ng 1uni i•.rere fuily met here a;1d ti1e evidence of ~4rwt the deceased said was properly admitted. lt is not correci, as Mr·. nunti,ali suggested, that the accused in Ng'uni was acquitted on the rejection of this type of ~vidence; he was acquitted ~ecause the eyewitnesses who purported to repeat what the deceased said were themselves not credible and appeared anxious to conceal the presence of and the ,oles played by some members of · their family whom the accused had impl i.cated·. In the case at nand, no such adverse finding on credibi Ii ty was made or could t>e made against P~is 1 and 5. What is more. there was noth i ng else in Ng 1uni to support th(! evidence of the suspect witnesses as to the words allegedly uttered by the deceased there implicating the accused whi le in this case, there was the 1:vidence of PW2 to whom this appellant confessed. We are satisfied that even had the lear.1ed trial judge excluded the warn and caution statement recorded by :>\,J7 ~ he must i·1ave convicted in any event on the remaindP.r of the evidence, • I ".5/ ••• ~. ~ The appeal • I is dismi sseu. He have nothing to comment on the mandat ory sentence. {65) M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE Bo T. Gar dner ACTING SUPR~E COURT JUDGE E. L. Sakal a SUPREME COURT JUDGE