Daniel Shula v People (APPEAL NO. 228 OF 2011) [2013] ZMSC 52 (5 February 2013)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: APPEAL NO. 228 OF 2011 DANIEL SHULA AND THE PEOPLE / APPELLANT RESPONDENT CORAM: MUMBA, AG. DCJ, WANKI AND MUYOVWE, JJS On 14th August, 2012 and 5 th February, 2013, For the Appellant: Mrs. P. Pizo, Legal Aid Counsel, of Legal Aid Board For the Respondent: Mrs. M. B. Nawa, Principal State Advocate JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. Wilson Mwenya -Vs- The People, (1990) SJ. 2. Mweemba and Another -Vs- The People, (1973) ZR 127. 3. Bernard Chisha -Vs- The People, (1980) ZR 36. 4. Emmanuel Phiri and Others -Vs- The People, (1978) ZR 79. The appellant was sentenced to suffer 25 years Imprisonment with hard labour by the Lusaka High Court following upon his conviction on one count of defilement contrary to Section 138(1) of the Penal Code, Chapter 87 of the Laws of Jl Zambia by the Subordinate Court of the First Class, Holden at Lusaka. The appellant's conviction was based on the evidence of Veronica Sakala, PWl a girl child aged 8 years and Number 30823 Detective Sergeant Evans Musakala, PW2. The evidence of PW 1 was that, she slept in the same room with the appellant, her father's friend. She slept on the floor while the appellant slept on the chair. As she was sleeping, the appellant went to where she was sleeping and had unlawful carnal knowledge with her. She reported the matter to her mother. The appellant later ran away from the house. He was caught following a chase and was taken to Chawama Police Station where the matter was reported. PWl was later, taken to the University Teaching Hospital for examination. The examination confirmed that, PWl was defiled. PW2 investigated the matter and later arrested the appellant. Under warn and caution, the appellant denied the charge. In his evidence on oath, the appellant stated that, on the material night, he went with his friend, PWl 's father to his J2 friend's house. At the house, his friend showed him where to sleep and he went to sleep. Around 04.00 hours, he woke up and started going. As he was going he heard someone calling and he saw about five men together with his friend. They stopped him and they took him to Chawama Police Station where he was later arrested for the subject offence which he denied. The trial Court after considering the evidence before it, found that the prosecution had satisfied the Court that PWl was defiled on the 14th August, 2004; that on the material date, PW 1 slept with the appellant in the same room; that the prosecutrix was defiled while sleeping; and that it was proved beyond reasonable doubt that, the appellant committed the offence. The trial Court then convicted the appellant. Following his conviction, the appellant was committed to the High Court pursuant to Section 327 of the Criminal Procedure Code, Chapter 88 for sentencing. The High Court then sentenced the appellant to 25 years Imprisonment with hard labour. The appellant has appealed to this Court against his conviction and sentence. J3 He has advanced one ground of appeal, as follows:- "The trial Court erred in law and fact when it convicted the appellant and the sentencing Court sentenced the appellant to 25 years with hard labour on uncorroborated evidence of the prosecutrix." In support of the sole ground of appeal, the appellant filed heads of argument on which he solely relied at the hearing of the appeal. It was pointed out that, the evidence of the prosecutrix required corroboration as the offence alleged to have been committed 1s a sexual offence. It was contended that, corroboration is thus vital to ensure the danger of false implication is excluded. Reliance was placed on the case of WILSON MWENYA -VS- THE PEOPLE (1l where it was held that:- "Corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. It may be evidence which implicates him; that is which confirms in some material particular the evidence that the crime has been committed and it is the prisoner who committed it." It was further pointed out that, the prosecutrix in this matter was a child of tender years and her evidence needed to be corroborated as per the principle in the case of BERNARD CHISHA -VS- THE PEOPLE (2) where it was held that:- J4 "The corroboration." sworn evidence of a child requires It was contended that the evidence of PWl, Veronica Sakala, lacked the corroboration required by Law. It was submitted that, there was need to call the parents in this matter who are alleged to have been present at the material time and also the other men who are alleged to have apprehended the appellant to confirm the child's evidence. It was argued that, the failure to bring before the Court these very important witnesses worked against the fair determination of this matter. In fact it stands, as a dereliction of duty on the part of the police and this Court must consider that such evidence was favourable to the appellant. It was pointed out that, the prosecutrix stated at trial that, the appellant put his penis on her vagina and that she had slept with her clothes on when he placed his penis and she was dressed. Further, she stated that she went to the hospital and was examined but did not see the documents that the officers had given the mother, and PW2 tendered into Court documents Pl and P2 issued by Constable Liyungu of Chawama Police and Constable Kayamba of UTH Police respectively and which the JS Court did not refer to in its Judgment but merely stated that, it found that the prosecutrix was examined the same day and the results showed that she had as alleged been defiled. It was pointed out that, the Court in this matter after warning itself of the dangers of convicting on the uncorroborated evidence of PW 1 did not state which evidence it considered to be corroboration or, why it considered it safe to convict in the absence of corroboration. The Court was referred to the case of MWEEMBA AND ANOTHER -VS- THE PEOPLE (2l where it was held that:- "It is idle for a Magistrate religiously to recite the formula concerning the dangers of convicting on the uncorroborated evidence and then proceed to ignore it ... Where corroboration is required as a matter of practice it is a misdirection simply to say that he accepts the evidence of the complainant. The Court must say whether it finds corroboration, and if so, what evidence it regards as such, or whether on the other hand there is no corroboration but that it is safe to convict without it." It was submitted that, the Court should have showed how it arrived at its decision rather than just mere recite the testimony tendered in Court. It was contended that, it is not for the accused person to prove his innocence but for the prosecution to prove his guilt beyond reasonable doubt. It was submitted that, clearly a doubt J6 has been cast as to the offence ever having been committed by the appellant herein or having been committed at all and the Court was therefore urged to set aside both conviction and sentence in this matter. On behalf of the respondent, Mrs. N awa, Principal State Advocate informed the Court that, she supported the conviction of the appellant. The Principal State Advocate submitted that, it is clear that the trial Court was on firm ground in convicting the appellant. She pointed out that, most of the evidence is not in dispute. There is no dispute that the two slept in the same room. The appellant therefore had opportunity. The appellant's conduct of running away was also not disputed. She submitted that, the two conducts amount to something more. The trial Court satisfied all the circumstances outlined in the case of EMMANUEL PHIRI AND OTHERS -VS- THE PEOPLE. (4l In reply, Mrs. Pizo submitted that, from the evidence on record, it is clear that what the Principal State Advocate relied on was given by PW2 which was hearsay. The prosecution had an opportunity to call the parents and the four members of the J7 family. She contended that failure to call them should be resolved in favour of the appellant. Counsel further contended that, not saying good-bye should not be taken that the appellant committed the offence. She further contended that, evidence should have been called to prove the case. The Court below should have stated the corroborative evidence. As such, she believed that the conviction was not proper. We have considered the appeal; the sole ground of appeal; the appellant's heads of argument; the submissions; and indeed the Judgment of the Court below that has been appealed against. In the sole ground of appeal, the appellant has attacked the trial Court when it convicted the appellant and the sentencing Court for sentencing him to 25 years imprisonment with hard labour on uncorroborated evidence. It has been contended that, the evidence of Veronica Sakala, PW 1 lacked corroboration as required by law; and that there was need to call her parents. On the other hand, it has been submitted on behalf of the respondent that, the trial Court was on firm ground in convicting the appellant. JS We have examined the evidence on record and the Judgment of the trial Court. According to the evidence that was adduced before the trial Court which evidence was not disputed, the appellant slept in the same room with the victim PW 1, and that the appellant who was the victim's father's visitor left the house very early the following morning without biding farewell to his host. The appellant had the opportunity of defiling the victim and his conduct of leaving the house early in the morning without biding farewell to his host does not demonstrate innocence. Further, it was an odd coincidence that, the appellant who slept in the same house with PW 1 could leave the house early in the morning without bidding farewell to his host who had invited him to spend the night at his house. We do not find the appellant's explanation that he did not tell the owners of the house that he was leaving because they were not in the house, reasonable. Earlier in his evidence the appellant stated that, he was sleeping next to the girl; that he woke up around 04.00 hours; the girl woke up first before he did and that after she woke up she went to the room where her parents slept. J9 If the girl went to her parent's room, then the parents who were the owners of the house were in their room. It does not make sense for the appellant to say he did not tell them that, he was leaving because he did not see them. Obviously, they were in their room and there was nothing to stop the appellant, if he wanted to knock at their room to tell them that he was leaving. We have held in many cases that odd coincidences if not explained can amount to corroboration. As stated above, the appellant had an opportunity to defile the victim; and he left without bidding farewell to his hosts. The two incidents or odd coincidences amount to something more, thereby supporting the victim's evidence that she was defiled by the appellant. The trial Court cannot, the ref ore, be faulted when it found as it did and convicted the appellant on the evidence of the victim, PW 1. The appeal against the appellant's conviction, therefore, fails. In relation to the appeal against the sentence of 25 years imprisonment with hard labour, we note from the record of appeal that the sentencing Judge took into consideration the age of the JlO victim who was aged 8 years which he said was an aggravating factor; and all circumstances of the case. We have considered the age of the victim and the circumstances under which the appellant defiled the victim. We have found that the sentence of 25 years imprisonment with hard labour does not come to us with a sense of shock as being excessive. We do not, therefore, find merit in the appeal against the sentence, it accordingly fails. In the circumstances, we find no merit in the sole ground of appeal, which is accordingly dismissed. It follows that, the appeal is dismissed. F. N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE .. .... ~~············· M. E . Wanki, SUPREME COURT JUDGE E. N. C. Muyovwe, SUPREME COURT JUDGE Jll