Cosmas Silwamba v People (APPEAL NO. 59/2009) [2014] ZMSC 270 (7 January 2014)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 59/2009 HOLDEN AT NDOLA (Criminal Jurisdiction.) BETWEEN: COSMAS SILWAMBA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Chibesakunda, Mwanamwambwa, Chibomba, J. J. S. On the 4 th May, 2010 and 7 th January, 2014 For the Appellant: Mr A. C. Nkausu, Director Legal Aid Board For the Respondent: Mrs P. L. Phiri, Assistant Senior State Advocate JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases ref erred to: 1. Nsofu V. The People (1973} Z. R. 287. • · 2. Credland V. Knowler (1951) 35 Cr. App. R. 48. 3. Banda V. The People (1986) Z. R. 101. 4. Emmanuel Phiri and others v The People ( 1978} Z. R. 79. 5. Bernard Chisha v The People (1980) Z. R. 36. 6. Anderson V. The People (1968) ZR. 46 (HC). 7 . David Zwimba V. The Pe'ople (1988-1989) ZR 107. J2 Legislation referred to: 1. The Penal Code Act, Chapter 87 of the Laws of Zambia, section 138. Other works referred to: 1. Phipson and Elliot (2001), 'Manual of the Law of Evidence,' Eleventh Edition, page 156. The Appellant was convicted by the Subordinate Court on the 21st of April, 2008, on one count of Defilement, contrary to section 138{1} of the Penal Code Act, Chapter 87 of the Laws of Zambia. The particulars were that the Appellant, on the 19th May, 2007, at Kasama, in the Kasama District of the Northern Province of the Republic of Zambia, did unlawfully and carnally know the victim, a girl under the age of 16 years. The Prosecution relied on the evidence of three witnesses. PWl was Theresa Mukuka, the mother to the victim. PW2 was Edward Chomba Sichande, who lives in the same village as PW 1. PW3 was J3 Sub-Inspector Charity Chibwanta, a Police Officer at Kasama Police Station and arresting officer in this matter. The brief facts of the case were that on the 19th of May, 2007, PWl prepared water to bath for her 3 year old daughter, victim in this case. Before she could bath her, she discovered that the water was too hot. She decided to go and fetch some cold water to mix with the hot water. She left the victim playing under a tree. When she came back from fetching the water, did not find the victim where she had left her. When she looked at the Appellant's house, which was next to her house, she saw the victim coming out of the Appellant's house and also saw the Appellant leaving his house. The victin1, wiU1oul Leing a~ked anylhing, began narrating to PWl how she was lured into the Appellant's house by the Appellant. She stated that the Appellant told her that he was going to give her sweets. She stated that when she followed him, he put her on his bed and inserted something into her vagina. PWl checked the victim's private parts and discovered that her thighs were wet with sperms. PWl went to the Appellant's house to confront him but did not find him there. PWl started crying. PW2 found PWl crying and J4 upon asking her what had happened, she narrated the ordeal to PW2. PWl showed PW2 the sperms on the victim's thighs. PW2 asked PWI where the Appellant resides and he was shown. By this time, the Appellant had come back to his house. Upon hearing that PW2 was being shown the house of the Appellant, the Appellant ran away but he was apprehended by PW2. When asked by PW2 if he had defiled the victim, the Appellant admitted. A crowd of people gathered around to beat up the Appellant but PW2 stopped them. PW2 took the Appellant to the village headman and while there, he admitted having had sexual intercourse with the victim. This was in the presence of PW2 and the village headman. The village headman called the Police and PW3 came to pick him up. At the police station, a warn and caution statement was recorded under which the Appellant admitted the charge. A medical report form was issued for the victim and it confirmed that she had been defiled. When the matter went to Court, the Appellant disputed the admission in the warn and c~ution statement. When the Appellant was put on his defence, he decided to remain silent and not to call any witnesses. JS Upon evaluating the evidence, the trial Court stated that: "from the evidence of PWl, it is clear that her daughter is a child of very tender age. In this case, PWl had left her child playing under a tree when she went to draw water to cool the boiling water meant to bath the child ... on return, PWl saw her child coming out from the house of the accused at the door ... The child told the mother what accused had done to her. That he had carnal knowledge of her after he took her to his house where he laid her on the bed. That the act was very painful, that, she cried and led her into his house promising to give the child sweets .... The child was checked by both PWl and PW2, sperms were found on her thighs ... Further, the medical examination carried out on the child confirmed that the child had been sexually abused ... There is also evidence on record from PW3 that the accused when asked if what was levelled against him was true, he admitted saying that, he thought he was having sex with his girlfriend. This is not contained in the confession which has been excluded, but in the interview with the arresting officer. This points to a fact that accused had accepted having carnal knowledge of the child. This was stated by PWl and PW2 in their testimony. So their testimony is supported by that of PW3 ... " The Appellant filed two Grounds of Appeal, which read as follows; Ground one: The trial magistrate misdirected himself when he found that the Appellant was the one who had defiled the child. Ground two: The sentencing Judge erred in principle when he sentenced a first offender to 35 years imprisonment with hard labour. J6 In support of Ground one, Mr Nkausu submitted that while medical evidence offers corroborative evidence that a crime of defilement was committed, it does not equally offer corroboration as to who committed that crime. Equally, the evidence of PWl I PW2 and PW3 has support in so far as it relates to defilement of the minor, but that there is no corroboration as to who committed it. He invited this Court to consider Nsofu V. The People (1). He stated that the Appellant may have had opportunity to commit the cnme but that the opportunity cannot offer corroboration that it was the Appellant who committed that crime. He quoted a holding in Credland V. Knowler (2} that: "Mere opportunity alone does not amount to corroboration". He added that the evidence of PW 1, that she saw the child with the Appellant before she checked her 1s merely a basis of suspecting the Appellant and susp1c1on alone cannot offer corroborative evidence that the suspect committed the crime. Mrs Phiri supported the conviction. She submitted that there was corroboration as to the identity of the defiler. That the mother J7 saw the child leaving the Appellant's house and the child narrated what had happened to her on her own volition. She stated that the evidence on record shows that the Appellant confessed to the village headman and said that he had been bewitched that's why he had sexual intercourse with the victim. She stated that the confession was properly taken as part of the evidence as it was made freely by the Appellant and there was no need for the headman to administer a warn and caution statement. She referred this Court to Banda V. The People (3). We have looked at the evidence and considered the submissions from both sides. We agree with the arguments on behalf of the Appellant that in sexual offences, there is need for corroboration, not only as to the commission of the offence, but also as to the identity of the accused. See: Emmanuel Phiri and others v The People (4) and Bernard Chisha v The People (5). The Appellant has argued that in the case before us, there is no corroboration as to the commission of the offence and none as to the identity of the offender. J8 The Learned authors, Phipson and Elliot of 'Manual of the Law of Evidence,' Eleventh Edition, page 156, stated that: "corroboration is any evidence which confirms a witness's statement and is extraneous to that witness. Perhaps this is the commonest case, but it is not the only case, and in the few places where the law requires corroboration, or thinks it desirable, it does not specify this or any other form. Any independent statement will do, provided it confirms in some material particular the evidence standing in need of corroboration and, if the identity of the defendant is in issue, implicates him. Thus corroboration maybe found in a document, or thing, such as blood stains on clothes, or the injuries suffered by a rape victim. It may also be found in the actions or statements of the defendant himself. His conduct on previous occasions, although not usually provable, may be proved in some cases and if it is proved may amount to corroboration of the case against him ... " In the case of Emmanuel Phiri and others V. The People, ref erred to above, this Court held that: "The modern decisions appear to be adopting a less technical approach to what is corroboration as a matter of law, and to be recognising that identification cases are analogous to, if not virtually indistinguishable from, corroboration cases. The question in all cases is whether the suspect evidence, be it accomplice evidence, evidence of a complainant in a sexual case, or evidence of identification, receives such support from the other evidence or circumstances of the case as to satisfy the trier of fact that the danger inherent in the particular case of relying on that suspect evidence has been excluded; only then can a conviction be said to be safe and satisfactory." Counsel for the Appellant referred this Court to a holding 1n the case of Credland V. Knowler. It was held in that case that: J9 "Mere opportunity alone does not amount to corroboration, but the opportunity may be of such a character as to bring in the element of suspicion. That is, that the circumstances and locality of the opportunity may be such as in themselves to amount to corroboration." The evidence on record shows that the Appellant was seen coming out of his house by PWl, shortly after the victim came out. The Appellant locked the door to his house and left. The victim, without being asked by PWl, started to narrate what had happened to her. Upon hearing the ordeal, PWl checked the victim and discovered that there were sperms on the victim's legs. The Appellant was a neighbour to PWl. When PWl asked the Appellant why he had done it, the Appellant did not respond. Further, when PW2 asked the Appellant if he had defiled the victim, he admitted having defiled the victim. When PW2 took the Appellant to the village Headman, the Appellant admitted having defiled the victim. This evidence shows that the Appellant not only had the opportunity to commit the offence, but was also very well known to PW 1. This is because he was the neighbour to PW 1. He was seen coming out of his house shortly after the victim came out with sperms on her thighs. The victim decided to narrate the ordeal to her mother, PWl, without being asked anything by PWl. The JlO Appellant admitted having defiled the victim in the presence of PWl, PW2 and the village Headman. The evidence on record also shows that the Appellant locked the house and left. This shows that he was the only one in that house and no one else had the opportunity that he had. In any case, he came out of the house shortly after the victim came out of his house. The evidence also shows that when PW2 followed the Appellant to his house to confront him, he ran away but he was caught by PW2. The action of running away brings questions in our mind as to why an innocent person would ran away from something he did not do. We are of the view that all the circumstances we have discussed above bring about suspicion which amounts to corroboration. The admission by the Appellant to PWl, PW2 and the village Headman is also corroboration as to the identity of the offender. The circumstances discussed above confirm what PW 1, PW2 and PW3 gave in their evidence. We are convinced that the dangers of false implication and mistaken identity do not arise in this matter because there is enough evidence to corroborate the Jll evidence of PW 1, PW2 and PW3 that the Appellant defiled the victim. This Ground of Appeal therefore 1 fails. Under Ground two, Mr Nkausu submitted that the sentence was excessive for a first offender. He conceded that the child was too young and that the Appellant was married with three children. There were no submissions on behalf of the Respondent on this Ground. Courts are slow to interfere with a sentence unless it is shown that the discretion to hand down a sentence has been exercised wrongly or where it is shown that the sentence is so severe that it causes a sense of shock. The latter is the same as saying that the sentence is so unreasonable that, again, it cannot be said to have been passed in a proper exercise of the court's discretion. If the discretion has been exercised on the wrong basis 1 the superior court is free to fix a sentence which it considers appropriate. See the case of Anderson V. The People (6) Further, this Court held in the case of David Zwimba V. The People (7), that: J12 "The only reasons for increasing the sentence are; (1) where a minimum statutory sentence has not been imposed; (2) where the sentence imposed by the lower Court was totally inadequate; and (3) where the original sentence was wrong in principle." In another case of Jutronich, Schutte and Lukin v. The People (4), the Court Held that: "In dealing with appeals against sentence the appellate court should ask itself these three questions: (1) Is the sentence wrong in principle? Is the sentence so manifestly excessive as to induce state of (2) shock? Are there exceptional circumstances which would render it an (3) injustice if the sentence was not reduced?" In the case before us, the evidence on record shows that the Appellant knew the victim before the commission of the offence. He knew her as a daughter to his neighbour, PWl. He lured her into his house with a promise of giving her sweets. She followed him because she is a child with no capacity to suspect that a neighbour would harm her. He defiled her. The law provides for a sentence from anything between fifteen years and life imprisonment. We find that the Learned sentencing Judge was within the law when he sentenced the Appellant to 35 years imprisonment. People with behaviours such as the Appellant need to be removed from society for a long time as they are a danger to young children. The picture of the defilement will remain in the mind of the young girl forever. No amount of years of sentencing of the Appellant will make the young girl heal from what happened to her. The Appellant has destroyed the future of the victim in that she may not grow up in the same manner as her fell ow young girls will. In our view therefore, the fact that the Appellant betrayed the trust of the victim is aggravating. Secondly, the victim was 3 years old at the time she was defiled. This is definitely aggravating in that she was still a very small girl. The Appellant exposed her to sexual activities at a very young age. We also consider the fact that the Appellant was married with three children, as aggravating. He should have thought of himself as father to the victim and not looked at her as a sexual partner. He insulted his wife by sleeping with a very young girl. J14 From what we have said above, we disagree with the submission on behalf of the Appellant that the sentence was excessive. The sentence was correct in principle and did not come to us with a sense of shock. This Ground of Appeal fails too. All in all, the entire appeal fails. • ..•..• ... . . . . • . . . LJ.(; ... . ..... . ................. . . r1, . L. P. Chibesakunda AG/ CHIEF JUSTICE _ _, ~ / . ....--::-~ . ,- . .. , SUPREME COURT JUDGE H. Chibomba SUPREME COURT JUDGE