Clever Musaika v the People (CAZ/125/2021) [2022] ZMCA 227 (25 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA AND NDOLA (Criminal Juri s diction) CAZ/125/2021 BETWEEN: CLEVER MUSAIKA AND THE PEOPLE 2 s AUG 2n12 APPELLANT RESPONDENT CORAM: Mch enga DJP, Makungu and Muzenga, JJA ON: 22 nd March 2022 and 26 th August 2022 For the Appellant: M. Makayi, Legal Aid Counsel, Legal Aid Board For the Responden~: M. Chilufya, State Advocate , National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: 1 . Emma nuel Phiri v . The People [1982] Z . R . 77 2 . Benard Ch i s ha v . The Peop le [1980] Z . R . 36 3 . Katebe v . The Peopl e [1975] Z. R. 13 Legislation referred to : J2 l. The Penal Code, Chapter 87 of The Laws of Zambia 2 . ~he Juve~iles Act, Chapter 53 of The Laws of Zamo ia 1. I NTRODUCTI Ol\. The :i.ppellant appeared before the Subordinate :ourt iHcnourable T. Mhango), charged with the offence ~f defilement of a child contrary to section 138(1 ) o f The Penal Code. 1.2 . He ce ~ ied the charge and the matter proceeded to trial. 1 . 3. At the end of the trial, he was convicted for committi::-ig the offence and committed to the High Court for sentencing . 1 .4. In the High Court (Kamwendo, J.), sentenced him to 40 years imprisonment with hard labour . 1. 5. He nas appealed against the conviction. 2. CASE BEFORE THE TRIAL COURT 2.1 . The case before the trial court was that on the October 202 0, at about midday, the prosEc~trix ' s mother was at her house in Chibombo . J3 Ste wcs with her friends. They noticed that the p=csecutrix, who was aged 7 years, was walking with difficulties. 2.2 . When the prosecutrix was asked about why she was ~alki~g like that, she told them that the appellant had instructed her to draw water for him and take it to his house. When she got to the house, he locked t~e door and placed her on the bed and had sex~al intercourse with her. 2. 3. The women examined the prosecutrix's yagina and observed injury on it. 2.4. The prosecutrix' s mother then reported their finding to Chibombo Police. She also obtained a medica.1. report. 2.5. The prosecutrix was taken to Li teta Hospital where she was examined and it was confirmed that srE had been carnally known. 2.6. The appellant was on the 24 th of October 2022, arrested and charged with the offence of defilement. J4 2.7. The appellant's defence wa s a bare denial . He also told the trial magi s trate that he did not know why the pro s ecutrix pointed at him . 3. FINDINGS OF TRIAL MAGISTRATE 3. 1 . The trial magi s trate found that the medical report confirmed the fact that the prosecutrix was defiled. She also found that the appellant was incriminated by the prosecutrix when she identified him as the person who defiled her. 3.2. The trial magistrate also considered the requirement of corroboration in sexual offences and concluded that the p ros e c utrix ' s testimony was credible 3S there was no reason why she could haye fal s ely incriminated t he appellant. f . GROUNDS OF APPEAL AND ARGUMENT 4.1. The sole ground of appeal is that the trial ~agistrate erred when s he convicted the appellant on ~he uncorroborated evidence of the prosecutrix. 4.2 . In s upport of thi s ground of appe a l , Mrs . Makayi referred to cases , including Emmanuel Phiri v The People 1 and Benard Chisha v The People 2 , and JS submitted that since the pro s ecutrix was below the age of 14 years , there was need for her evidence incriminating the appellant , to be corroborated . 4 . 3. She argued th a t s ince the pro s ecutrix ' s evidence was not corroborated , the trial magistrate should not have convicted the appellant. 4.4. In re s ponse Ms . Chi l ufya , who supported the conviction , submitted th a t the absence of a motive to falsely incriminate , entitled the trial magistrate to convict the appellant on the uncorroborated evidence of the prosecutrix. 4.5. She referred to the case of Katebe v The People 3 in support of the propo s ition . 5. DECISION OF THE COURT 5.1. The law is settled and the cases of Emmanuel Phiri v The People 1 , Benard Chisha v The People 2 and Katebe v The People 3 , all make it clear that in a sexual offence, corroboration is required as a ma ~ter of practice . Corroborative evidence is required to rule out the possibility of the prosecutrix falsely incriminating an accused person. J6 5.2. The same cases point out that in sexual offences, defilement being one of them , it is competent for the court to convict on the uncorroborated evidence of the prosecutrix , where the court finds that there lS no motive for the prosecutrix to falsely incriminatE the accused person . 5.3 . This is what is al s o referred to as the "cautionary rule ", in that the court is alive to the fac~ that there is no corroborative evidence, but rules out the danger of fal s e incrimination because of the ab3ence of a motive to falsely incriminate the offender . 5.4. However , the " cautionary rule" cannot be de?loyed in a case where the conviction is anchored on the testimony of a prosecutrix who gives evidence by virtue of section 122 of the Juveniles Act. This lE becauEe where the prosecutrix is below the age of 14 year3 when giving evidence , her testimony requires corroboration as a matter of law . 5.5 . In Jther words , there must be independen L evidencE confirming the prosecutrix ' s claim that the J7 she was defiled. There must also be evidence confirming the prosecutrix's claim that the accused . person cowmitted the offence. 5 . 6. In this case, the trial magistrate rightly found that the orosecutrix's claim that she was defiled, was c~nfirmed by the medical report. 5.7. As regards who defiled her, the trial magistrate was Equally required to rule out the possibility of false incrimination of the appellant through corroborative evidence . 5.8. She erred when she used the "cautionary rule" to convict the appellant on the uncorroborated evidence of the prosecutrix, who was below 14 years when she gavE evidence. 5.9. In the circumstances, we find merit in the sole ground of appeal and we allow it. 6. Verdict 6.1. Having found that the trial magistrate erred when she deployed the "cautionary rule" in thE absence of corroborative evidence, we find that the • J8 convict~on i s based on a wrong decision on a que s tion of l a w and we allow the app eal. 6 . 2. We set aside the conviction and quash the sente.:1ce. C. F. R. Mchen DEPUTY JUDGE PRESIDENT ..... ....... ~ " . ............... ~ ......... . C . K. Makungu COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE