Collin Roberts v the People (APPEAL NO. 48/2024) [2025] ZMCA 99 (17 June 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: APPEAL NO.48/2024 COLLIN ROBERTS APPELLANT AND THE PEOPLE RESPONDENT CORAM : Mchenga DJP , Ngulube and Chernbe, JJA ON : 21 st May 2025 and 17 th June 2025 For the Appellant : K. C. Kaurnba , Likando Kalaluka & Co . For the Respondent : C . Kahilu, State Advocate , National Prosecutions Authority JUDGMENT Mchenga DJP , delivered the judgment of the court . Cases referred to : 1 . Nyirongo v . The People [ 1972] Z . R . 290 2 . OPP V . Risbey [1977] Z . R . 28 3 . Chrispin Mabvuto Banda and Another v . The Peop l e [2011 ] 2 Z . R . 194 4 . George Musupi v . The People [1978 ] Z . R . 271 5 . Yokonia Mwa le v . The People , SCZ Appeal No . 258 of 6 . Dorothy Mu tale and Another v . The People [ 1995- 1997] Z . R . 227 J2 7 . Victor Moses Sampa v . The People , CAZ Appeal No . 133 of 2020 8 . Sipalo Chibozu and Chibozu v . The People [1981) Z . R. 28 9. Mu sonda v . The People [1976] Z . R . 215 10 . Wil s on Chimoto v . The People [1980) Z . R . 20 11 . The People v. Njovu [1968) Z. R. 132 Legislation referred to : 1 . The Pena l Code , Chapter 87 of the Laws of Zambia 2 . The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 3 . The Court of Appeal Act , No . 7 of 2016 1. 0 INTRODUCTION 1.1 The appellant appeared before the Subordinate Court (Hon. Mi kalile , as she t h en was) , charged with the offence of assault occasionally actual bodily harm , contrary to Section 248 of the Penal Code . 1.2 He denied t he charge and the matter proceeded to trial . At the end of the trial , he was convicted and sentenced to 18 months impr i sonment , with hard l abour . 1.3 He appea l ed both t he convic t ion and sentence to the High Court , but was unsuccess f ul . 1 . 4 He has now appealed to this court against both the J3 conviction and the sen t ence i mposed on him by the trial Magistrate . 2.0 CASE BEFORE THE SUBORDINATE COURT 2 . 1 On 27 Lh November 2018 , Faith Mwamba , the appellant ' s estranged girlfriend , reported to Woodlands Po l ice Station on being summoned by the police . She was summoned following a complaint by the appellant , that he had lost some prope r ty from h i s house . 2.2 Police officers sat the appel l ant and Faith Mwamba , together with their witnesses , in an office . 2.3 After hearing both sides , the police officers concluded that the appellant ' s complaint was civil in nature . He was advised to sue his estranged girlfriend and the meeting was then dismissed. 2 . 4 The appellant was not p l eased . 2 . 5 As his estranged girlfriend was about to leave the office , the appellant stood in her way and got hold of her . He called out that she was a thief who must not be allowed to leave , but placed in police custody . 2.6 He also accused the police o f be i ng corrupt . 2.7 The appellant then pushed Faith Mwamba against the J4 wall. She fell to the ground and suffered a swo llen knee and elbow . 2 . 8 The police officers detained t he appellant . 2.9 On this evidence the appellant was convicted for the offence of ass ault occasioning actual b od i l y harm and sent enced to 18 months imprisonment , with hard l abour . 3.0 APPEAL TO THE HIGH COURT 3.1 The appellant appealed to the High Court advancing two grounds in suppo rt of the appeal. 3 . 2 The first gr ound of appeal was that t he evidence of the prosecution witnesses was inconsistent on t h e circumstances surrounding t he assault of Fai t h Mwamba by t h e appella n t . As for the second ground of appeal , he conte nded that the sentence imposed on him was e x cessive . 3.3 The High Court (Milimo-Sa lasini , J . ) , dismissed both grounds of appeal , and uphel d the convicti on and sentence imposed on th e appellant by t he trial Magistrate . JS 4 . 0 GROUNDS OF APPEAL TO THE COURT OF APPEAL 4 . 1 Di ssatisfied with the decis ion of the High Court , the appellant has appealed to this court and he has advanced five grounds in support of his appeal . 4.2 But before we deal with the grounds of appeal , it is necessary that we dea l with an issue raised by the appellant , which we consider to be preliminary . 4. 3 T:1e cases of Nyirongo v. The People1 and OPP v. Risbey2 were referred to and it was submitted that the appe lla nt has been deprived of the ' mater i a l ' , upon wh ic h he can assail the judgment of the trial Magistrate because the proceedings in t he trial court and one page of the judgment , are mi ss i ng from the record of appeal . 4.4 In the case of Chrispin Mabvuto Banda and Another v. The People3 , it was he l d t hat where the record of proceedings is unavailab le , an appeal can be determined on the judgment of the trial court , if such judgment sufficiently summaries the evidence that was presented duri n g the trial . 4 . 5 I n this case , although the record of proceedings is missing , it i s our view t hat this appea l can be dealt J6 with using the judgmen t of the trial Magistrate . Thi s is because that j udgment sufficiently summarises the evidence that was presented during the trial . 4. 6 We take this position , aware that one page of the judgment and the medical report produced during the trial , are not on the record of appeal . The missing page relates to some of the test imony of the appellant ' s witness , in cross examination. 4 . 7 The evidence of that witness , as can be disce rne d from the judgment , refuted and maintained that the appellant did not push Faith Mwamba. In the circumstances , the absence of the missing page does not prejudice the appe ll ant in any way . 4. 8 The appellan t ' s fi ve grounds of appea l bring out th:cee issues ; t he credibi li ty of the prosecution witnesses ; the unreliab ili ty of the med ical evidence ; and the sentence be i ng excessive . 5.0 CREDIBILITY OF THE PROSECUTION WITNESSES 5 . 1 Two issues were ra ised on the credibility of the prosecution ' s witnesses . It was submitted that the prosecution witnesses were all witnesses with a J7 possible interest of their own to serve , and that they gave contradictory evidence . 5 . 2 L~ngo Mutesa , Faith Mwamba ' s brother in law , Charity Khosa , the appellant ' s former l andlady and Detective Constable Wakumelo , the arresting officer , were all categorised as s uspect witnesses and it was submitted that the court erred when it did not ta ke that fact into account when evaluating their evidence . The case of George Misupi v. The People 4 was referred to in support of the proposition . 5.3 In addition , the cred ibility of the evidence of Faith Mwamba , Lungo Mutes a , Charity Khosa and Detective Constable Wakumelo , was attacked fo r being contradictory . The case of Dorothy Mutale and Richard Sakal a v. The People 6 was ref erred to and it was submitted that in the circumstances , the court shou l d have accepted the appel l ant ' s evidence , which was mo~e credible , that Faith Mwamba was not pushed but fell on her own . 5.4 In response to the appel l ant ' s submi ssions , the case of Yokonia Mwale v . The People 5 , was referred to and it was submitted that the mere f act that Lungo Mutesa JS was related to Faith Mwamba did not render him a suspect witness . 5.5 As fo r the other witnesses , it was submitted that there was no reason , whatsoever, for categorising them as suspect witnesses . 5.6 In addition , the case of Victor Moses Sampa v. The People 7 , was referred t o and it was submitted that the prosecution witnesses cannot be held to be unreliab le merely because they gave contradictory evidence . I n any case, their evidence was not contradictory , they merely used different words to say the same thing . 5.7 This being the case , an inference that the appellant did not push Faith Mwamba , cannot be drawn on the evidence that was before the trial Magistrate . 5 . 8 In her judgment , the trial Magis t ra te considered the variations in the te stimony of the prosecution wi ::nesses on what happened in t h e off ice at the police s tatio n. She made the following observation : "the fact that PW2 said the accused had his fingers entangled in PWl ' s hair extension and the other witnesses did not say so does not mean the witnesses lied . Witnesses do not always say exactly the same J9 thing. People perceive things differently and even the fact that they are positioned in different locations or angles at the time of witnessing an incident is bound to make them give slightly varied accounts " 5 . 9 It is our view that the trial Magistrate was on po i nt when she found that a lt hough the prosecution witnesses did not say exactly the same thing , their evidence was not contradictory . 5 . 10 The evidence of witnesses is categorised as being contradictory when their testimon ie s d iffer on an issue that is considered to be material to the charge . It is not expected that witnesses sitting in an office and observing events from different angles can give a narration that is exactly t he same in all details . 5 .11 In this case , because it was not in dispute that Faith Mwamba fel l , what was ma te rial was what led to the fall . All the witnesses are agreed that she fell after being pushed by t he appe l lant . Th i s being the case , their evidence was not contradictory . 5 .12 What have been highl i ghted as bei n g contradictory evidence , are in fact variations on trivial details surrounding the appellant ' s pushing of Faith Mwamba . JlO 5 . 13 We therefore find no merit in the claim that the prosecution evidence was contradictory . 5 . 14 As regards the allegation that the witnesses were suspect on account of being frie nds or relatives , the trial magistra t e in fact , cons idered the issue. 5 . 15 She referred to , and applied the principle set out in the case of Yokonia Mwale v . The People5 , be fo re ruling out the possibi l ity of the witnesses having a motive to falsely in cr i minate the appel la nt . 5 .16 We have considered her reason for coming to that conc l usion and we find no basis fo r fault i ng her . 5.17 In any case , Detective Constable Wakumelo , who was no t re l ated to , or friends with Faith Mwamba , corroborated the testimony of the other prosecution witnesses. 5 . 18 We find this to be the case even though he has been categorised as a suspe c t wi t ness because he did not arrest Faith Mwamba . On the facts of thi s case , there was no factual bas i s of which Detect ive Constab le Wa~umelo should have been categorised as a suspect witness . Jll 6.0 UNRELIABLE MEDICAL EVIDENCE 6 . 1 It was submitted on behalf of the appe l lant that the medical report produced by Dr. Niyodusenga , should not have been relied on because it was no t authentic . This is because Faith Mwamba ' s hospital f i le went missing for over 10 months and the doctor could not render any explanation for that . 6.2 It was also submitted that a Dr . Hamweemba , a medical practitioner who e x ami ned Faith Mwamba soon after the incident , should have been ca l led to corroborate Dr . Niyodusenga ' s evidence . In addition to that , Dr . Hamweemba would have explained t h e contents of the report , as was decided in the case of Sipalo Chibozu and Chibozu v. The People8 . 6 . 3 In response to this ground o f appea l , it was submit t ed on behalf of the respondent that Dr. Niyodusenga ' s evidence was credib l e because he examined Fa i th Mwamba; there was therefore no reason for calling Dr . Hamweemba . 6.4 Fi rst o f all , we do not see th e ev i dential va l ue of t he fact that Faith Mwamba ' s f i le wen t missing for some t i me, because the doctor who exami ned her gave J12 evidence. Any issue that tended to raise doubt in the prosecution evidence , should have been raised with him . 6.5 Further , the medical report that was presented during the tr ial was prepared by Dr. Niyodusenga . This being the case , al t ho ugh Dr , Hamweemba had init ially attended to Faith Mwamba , there was no need to call him to testify when the author of the report had given evidence. 6.6 It follows , that the holding in the case of Sipalo Chibozu and Chibozu v . The People8 , that the appellant has re ferred to , is not applicable to this case as it relates to situations where a medical report is admitted into evidence by virtue of Section 198A of the Criminal Procedure Code, and the author does not testify . 6 . 7 In this case , the medica l report was not admitted into evidence by virtue of Section 198A of the Criminal Procedure Code, because Dr . Niyodusenga , the author of the report , testified and produced it . Jl3 6 . 8 If the appellant was of t he view that Dr . Hamweemba would have helped his case , he was at l i berty to call him as a defence witness. 6. 9 We equally fi nd no merit in the claim t hat the medical evidence was not credible and we dismiss it . 7 . 0 EXCESSIVE SENTENCE 7.1 As regards the sente nce , Section 26(4) of the Penal Code was referred to and it was submi t ted that s ince the offence of assault occasion i ng actual bodily harm is a misdemeanour , t he trial Magistrate should no t have imprisoned the appellant , but fined h im . 7.2 In addition , the cases of Musonda v. The People9 and Wilson Chimoto v. The People10 we r e referred to and it was submit t ed tha t s i nce the appellant was a first offender and there were no aggravating f actors , the appropriate s entence should have been a fine . 7. 3 Fi n ally , it was pointed out that the appellant was subjected to ' lengthy provocation ' by the pol i ce , who despi te b eing informed of the thefts he had suffered , suggested that he sues the ' t hieves ' in the civil courts. J14 7 . 4 On the basis of the case of The People v . Njovu11 , it was submitted that this conduct by the police , shou l d have been taken into account at sentencing because it was 'responsible for the appellant ' s conduct on the fate ful day . 7.5 In response , the respondent submi tted t h at considering t he circumstances of this case , the sentence impo sed on the appellant should not come to us with a sense of shock as being excessive. 7 . 6 Section 16 (5) (b) of the Court of Appeal Act, lays out the approach that we should take when dealing with an appea l against the sentence . It provides that : ' the court shall not interfere with a sentence just because if it were a trial court it would have imposed a different sentence , unless the sentence is wrong in principle or comes to the Court with a sense of shock .' 7.7 The offence of assault occasioning actual bodily harm is set out in Section 248 of the Penal Code and it at~racts a maximum sen tence of S years imprisonment. 7 . 8 In this case , the on l y mitigating factor in f avour of the appel lant is that he was a first offender . JlS His age and the fact that the victim d i d not suffer very serious injury , also f avoured him. 7 . 9 However , we do not accept the assertion that he sr..ould not have been imprisoned but on l y fined , because there were no aggravat ing factors. 7. lO This is an assault that took place in a police station . The appel l ant reported his estranged girlfriend to t h e po l ice on an allegation of theft . After hearing the parties , the police decided that there was no evidence supporting t he a l legation and advised on he should proceed . 7. 11 The appellant did not accept the posit i on of the police and attempted to stop Faith Mwamba , who had been ' cleared ' by the police from leaving the pol i ce station , inj u r i ng her in the process. 7 . 12 We are at pains to understand why the appella n t ' s conduct is still being justified on the grounds that he was provoked by the police officers ' refusal to arrest Faith Mwamba . 7.13 All we see is an arrogant individual who acted with impun it y. Jl6 7 . 14 Acting with impunity , as was the case i n this matter , was an aggravating factor and i t en t itled the trial Magistrate to impose a custodial sentence . 7.15 In the c ircumstances , the s e ntence of 1 8 months does not come to us with a sense of shock as being excessive . 8. 0 VERDICT 8 . 1 The arguments in support of the appeal against both conviction and sentence having f a iled , we dismiss the appeal and uphold bot h t he conviction and the sentence imposed by the tri a l Mag i strate. 8.2 Although the appellan t was den ied bail fo llowi ng the dismi ssa l of his appeal by the High Court , we note that f or unexplained reasons , he was not taken into ct.:stody . For that reason , t he sentence wi ll start running from P . C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE JUDGE