Sinyinza v People (SCZ Judgement 2 of 2009) [2009] ZMSC 162 (20 January 2009)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: DARIUS SINYINZA -vs- THE PEOPLE JI (42) SCZ JUDGMENT NO. 2 OF 2009 APPEAL NO. 39 OF 2008 APPELLANT RESPONDENT CORAM: MUMBA, SILOMBA AND MUSHABATI, JJS On 3rd June, 2008 and 20th January, 2009. For the Appellant: Mr. L. E. Eyaa, Deputy Director of Legal Aid Board For the Respondent: Mr. C. F. R. Mchenga. Director of Public Prosecutions JUDGMENT SILOMBA, JS, delivered the Judgment of the Court. Cases referred to:- 1. Penias Tembo -Vs- The People (1980), ZR 218. 2. Mulenga -Vs- The People (1972), ZR 271. 3. Zulu -Vs- The People (1973) ZR, 326. This appeal is against the judgment of the High Court which was delivered on the 14th of June, 2007, at Kasama. In the said judgment, the appellant, Darius Sinyinza, was sentenced to 15 years imprisonment with hard labour on the second count and 20 years imprisonment with hard labour on the third count. The sentences were to run concurrently with effect from the date of arrest. This followed the conviction of the appellant for defilement by the Magistrate's Court, Class One, and his committal to the High Court for sentence. J2 (43) As earlier indicated, the trial of the appellant began in the Subordinate Court of the first class holden at Kasama. In the said Subordinate Court of the first class, the appellant was charged with three counts of defilement of girls under the age of 16 years contrary to Section 138(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offences were that the appellant on the 21st of January, 2006, at Kasama in the Kasama District of the Northern Province of the Republic of Zambia, did have unlawful carnal knowledge of Emelda Mwaba, Mildred Mwango Mutale and Loveness Munthali, being girls under the age of 16 years. During plea, the appellant pleaded not guilty to all three counts. The case for the prosecution was supported by seven witnesses. The evidence of Loveness Munthali (PW1), on count three, and Mildred Mwango Mutale (PW2), on count two, was that on the 21st of January, 2006 they were together with Emelda Mwaba (count 1) at a fire warming themselves when the appellant approached them and asked them to go and call Na Esther, his former wife. As the three girls proceeded to call his former wife, the appellant followed them and later waylaid them to a ditch. Immediately they reached the ditch, the appellant grabbed the chitenge material from Emelda Mwaba and spread it on the ground, whereupon he ordered the three girls to lie down. He threatened them not to scream or else he would beat them. The further evidence was that he ordered the three girls to remove their pants at once which they did and thereafter grabbed the pants. The first victim was Emelda Mwaba. He removed his penis and inserted it in Mwaba's vagina. J3 (44) Later he inserted his penis in Mwango's (PW2) vagina and later he did the same to Loveness Munthali (PW1). While this was going on, PW1 and PW2 were watching. After he had carnal knowledge of all the three girls, he gave KI,000.00 to Emelda Mwaba to share with Loveness Munthali (PW1). Mutale (PW2) was given K300.00. As he went away, he told the three girls not to say anything or else he would beat them. PW1 spent a night at Emelda Mwaba's place while Mutale went to her nrl home. On the following day, the 22 of January, 2006, the aunt of Emelda Mwaba took to task her niece who told her, in the presence of Simon Mutambo (PW6), her husband, that the appellant had carnal knowledge of her and her friends. Consequently, the mothers of PW1 and PW2 were alerted. Gertrude Mwango (PW4), the mother of Emelda Mwango Mutale, testified before the trial Magistrate that after being alerted by Gertrude Mulenga (PW3), the aunt of Emelda Mwaba, that her daughter had been defiled by the appellant she, together with PW3 and PW5 (Dorothy Namukandi), decided to approach the appellant. When the appellant saw them, they were chased away and they never spoke to him. After the hostile re-action of the appellant, the three witnesses decided to report the matter to the police where they were given medical report forms and the appellant was later detained at the police station. All the three witnesses, like PW1 and PW2, confirmed before the trial Magistrate that they had known the appellant before as a neighbour. The medical reports were later produced in evidence. J4 (45) The evidence of PW4 was that she did not just implicate the appellant for the sake of it. She disclosed that the appellant had written a letter to herself, PW3 and PW5, pleading with them to forgive him. At the time she testified, she did not have the letter to produce in court. However, Dorothy Namukandi (PW5) tendered the letter which the appellant wrote her while in Milima Prison, pleading with them for forgiveness. Although the letter was identified by PW5 and marked as 'ID3' it was never admitted to form part of PW5's evidence. In the course of trial, Simon Mtambo (PW6) informed the court that his niece, Emelda Mwaba, had been taken away to Chinsali by her parents and this prompted the trial Magistrate to acquit the appellant on count one because the prosecutrix had not presented her complaint in court. In his defence, the appellant testified before the trial Magistrate that on the 22nd of January, 2006, around 17.00 hours, he was asleep in his house when his wife came to tell him that some people wanted to talk to him outside the house. When he went outside, he found Shi Mapalo, Shi Mutale, Na Mutale, Na Maria and two other men he did not know their names. When they asked him to go back in the house for a discussion, he refused. Despite his refusal, they told him that he had carnal knowledge of their children and an argument ensued. They told him that he should not deny what he had done to the girls. According to his evidence, he produced K200,000.00 so that they could go to the hospital to verify if he had slept with their children and the group refused, whereupon he told them that he was going to call the police. Thereafter, he went with them to the police, whereupon he was asked by the police whether he had slept with the girls and he refused. The police threatened J5 (46) to beat him up but he told them not to intimidate him. He was detained and later taken to the court. Under cross-examination, he denied that he ever wrote a letter to plead for forgiveness. He also denied he ever produced money to plead for forgiveness. According to him, the K200,000.00 he produced was intended to be used to go to the hospital to have him examined, a request that was turned down. The appellant told the trial Magistrate that he never challenged the witnesses in cross-examination because they told lies. The trial Magistrate went through the evidence on record from both the prosecution and the defence. She found, as a fact, that PW1 and PW2 were below the ages of 16 years and that there was carnal knowledge of them. As far as the trial Magistrate was concerned, the fact that the two victims were below the age of 16 years was not disputed by the appellant who, in his evidence, remarked that the girls were too young for sex. The question the trial Magistrate posed for her to resolve was: who had sex with the two prosecutrix? With regard to the identity of the perpetrator of the crime, the trial Magistrate found that the appellant was properly identified and that there was no dispute about it. On corroboration, the trial Magistrate was satisfied with the evidence of the two prosecutrix, which was on oath and which corroborated each other on what happened. She was also satisfied that the two prosecutrix were telling the truth. Flowing from her reasoning, the trial Magistrate found that the prosecution had established all the ingredients of the offence of defilement in counts two and three and convicted the appellant on both counts as charged. On J6 (47) sentence, she committed the appellant to the High Court so that appropriate sentences could be meted out to the appellant. There are two grounds of appeal. These are:- 1. That the trial Magistrate erred in law and fact in convicting the appellant on count two for defilement yet the medical report (exhibit P2) for Mildred Mwango is to the effect that there was no any inflammation and the hymen was intact. 2. The trial Magistrate misdirected herself in law in convicting the appellant on uncorroborated evidence of the two prosecutrix. Mr. Eyaa, representing the appellant, filed the appellant's heads of argument and entirely relied on them. In support of ground one, Mr. Eyaa made reference to the medical report, (exhibit P2), and argued, in his heads of argument, that there was no defilement because it was categorically stated in the said medical report that there was no inflammation and that the hymen was intact. This being the case, it was contended that the appellant should have been acquitted on count two. In support of ground two, Mr. Eyaa submitted in his heads of argument that since defilement was a sexual offence it followed that a complainant in a sexual offence was a suspect witness. He relied on the case of Penias Tembo -Vs- The People (1) to show that in a suspect witness there was potential danger of false incrimination which the court must guard against. He submitted that in a case of a suspect witness the court must consider the issue of credibility of the complainant and after it was satisfied that the witness was credible, it must then consider the issue of corroboration, which is a requirement as a matter of practice and law in sexual offences. J7 (48) He submitted that in this case the learned trial Judge did not advert her mind to the fact that complainants in sexual offences were suspect witnesses and that as such, they could not corroborate the evidence of each other. As far as counsel was concerned, PW1 (Loveness Munthali) and PW2 (Mildred Mwango), the prosecutrix in this case, could not corroborate each other on the commission of the crime and the identity of the appellant. Mr. Eyaa further more submitted that witnesses PW3, PW4, PW5 and PW6 could not assist the prosecution because all of them were relatives of the prosecutrix in one way or the other and, therefore, were witnesses with a possible interest to serve who might have a motive to give false evidence. The failure to treat the evidence of PW3, PW4, PW5 and PW6 with caution and suspicion was, as far as Mr. Eyaa was concerned, a misdirection on the part of the trial court. We were urged to allow the appeal and acquit the appellant. In his re-action, the learned Director of Public Prosecutions submitted on ground two and observed that the offence committed against the two prosecutrix was committed in the presence of both; that PW1 witnessed what happened to PW2 and vice versa. He relied on the case of Mulenga -Vs-The People (2) to show that there was mutual corroboration. With regard to ground one, the learned Director of Public Prosecutions noted the contents of the medical report (exhibit P2) relating to Mildred Mwango, which stated that she had not suffered inflammation and that her hymen was intact, which meant that there was no penetration. He, however, took note that in her evidence PW2 (Mildred Mwango) had said that she had sexual connection with the appellant and in his view this was evidence of penetration. J8 (49) In case the court did not agree with him, the learned Director of Public Prosecutions argued in the alternative and referred us to Section 186(3) of the Criminal Procedure Code, which stated that where a person is charged with defilement and the court thought that the evidence before it had proved the commission of the offence of indecent assault the accused could be convicted for indecent assault. In relation to the case at hand, the learned Director of Public Prosecutions submitted that there was evidence that the appellant undressed the prosecutrix and mounted her while naked. He urged us to find the appellant guilty of indecent assault and dismiss the appeal. In reply, Mr. Eyaa reiterated what was contained in the heads of argument and pointed out that Section 186(3) of the Criminal Procedure Code could not be invoked on appeal because the trial Magistrate had already convicted the appellant but when he was reminded of the provisions of Section 15 of the Supreme Court of Zambia Act, there was no response from him. We have considered the evidence that was placed before the trial Magistrate, as well as, the order on sentence decreed by the learned trial Judge. Before we deal with the submissions, for and against the grounds of appeal, we would like to address our minds on the conduct of a voire dire by a trial court even if this was not raised on appeal. We have done so because the issue of voire dire arose in the proceedings before the trial Magistrate but most importantly we have taken this opportunity to remind courts of first instance on the procedure to follow when faced with a child witness of tender years. The correct procedure to be adopted in the conduct of a voire dire is to be found in Section 122 of the Juveniles Act, Chapter 53 of the Laws. This section J9 (50) was amplified upon in the case of Zulu -Vs-The People (3) in which this court stated that the first thing the trial court must decide is whether the proposing witness is a child of tender years. If he is not, the foregoing section of the Juveniles Act will not apply and his evidence can be received on oath. Where the trial court decides that the witness is of tender years, then it must inquire whether the child understands the nature of an oath; if the child does, he must be sworn in the ordinary way and his evidence is received on the same basis as that of an adult witness. At pages 8 and 10 of the record of appeal, the trial Magistrate decided that both PW1 and PW2 were witnesses of tender years. She then made inquires in both cases and concluded that the two child witnesses were "capable of being sworn on the Bible." The correct conclusion should have been that the two child witnesses understood the nature of an oath" for them to be sworn in the ordinary way and have their evidence received as if they were adult witnesses. Even though the conclusion was not in the usual format, we are satisfied that the conclusion by the trial Magistrate showed that she appreciated the capacity of the child witnesses to give evidence on oath. Coming to ground one, we have looked at the medical report and we agree with Mr. Eyaa's submission that the report is categorical on the issue of defilement. In the absence of evidence to show that there was inflammation around the vagina and that the hymen was tampered with a charge of defilement cannot be sustained. Even though the learned Director of Public Prosecutions did not readily concede, his submission in the alternative was a clear indication that the charge of defilement could not be sustained or supported by the medical evidence. J10 (51) Having looked at Section 186(3) of the Criminal Procedure Code and the evidence on record, our view is that the evidence supported a charge of indecent assault for which the appellant should have been convicted. The prosecutrix in count two, Mildred Mwango Mutale, was made to surrender her pant to the appellant and the appellant actually mounted her while she was naked. From the medical report, we hold the view that there was no penetration, because the appellant had just moved from Emelda Mwaba (count one) and his erection had collapsed but nonetheless his conduct constituted an offence of indecent assault under Section 137(1) of the Penal Code. Mr. Eyaa forceably argued that since the trial Magistrate had already convicted the appellant for defilement this court had no jurisdiction to alter the conviction but to simply reverse the conviction and acquit the appellant. We reminded him of the provision in Section 15(3) of the Supreme Court of Zambia Act, chapter 25, and we are sure that by now he has read it and is convinced that the law is on our side. For the sake of clarity and in order to avoid any doubt Section 15(3) is reproduced as follows:- "15(3): On any appeal, whether against conviction or sentence, the Court may substitute a judgment of guilty of such other offence as the trial court have entered, and, in the case of an appeal from a judgment of the High Court in its appellate jurisdiction, the Court shall in addition have power to restore the conviction of the trial court." Accordingly, and on the basis of the evidence on record, the conviction of the appellant for defilement under Section 138(1) of the Penal Code is reversed and substituted with one for indecent assault under Section 137(1) of the Penal Jll (52) Code. We affirm the sentence passed by the learned trial Judge on count two of 15 years imprisonment with had labour and this will now be deemed to be the applicable sentence for the offence of indecent assault under Section 137(1) of the Penal Code. Ground one is dismissed for lack of merit. On ground two, we hasten to say that there is no dispute as to the identity of the appellant as he was properly identified, having been a neighbour of the two prosecutrix for sometime. In fact, the issue of identity of the appellant was not contested with any seriousness. However, the appellant has contended, through counsel, that his conviction was on the uncorroborated evidence of the two prosecutrix; that as a matter of law and practice in sexual offences the evidence of the two prosecutrix required corroboration since they were suspect witnesses. The appellant has further contended that witnesses PW3, PW4, PW5 and PW6 could not corroborate the evidence of the two prosecutirx because as relations in one way or the other, they had an interest to serve and the possibility of false incrimination could not be ruled out. We have no quarrel with the requirement of the law that victims of defilement are suspect witnesses and that their evidence should always be corroborated. The evidence before the trial court was that the two prosecutrix were defiled or assaulted indecently in one transaction and in the presence of each other. Relevant to the foregoing evidence is the case of Mulenga -Vs-The People. (2) In this case, we said that the rule that evidence of a witness requiring corroboration cannot corroborate that of another equally requiring corroboration, when applied to sexual offences, must be limited to cases where the offence charged is a single offence or a transaction involving two or more J12 (53) complainants. We further stated that where two or more complainants, in addition to alleging assaults on themselves, are eye witnesses of the assaults on the others, their evidence of the assaults on such others is direct evidence and is capable in law of being corroboration. Further on corroboration, there is evidence of PW4 (Gertrude Mwango), mother of PW2, at page 17 of the record that the appellant had written a letter to herself, PW3 and PW5 pleading for forgiveness but unfortunately she had left the letter at home. Her evidence was supported by PW5 (Dorothy Namukandi) who said the appellant wrote her a letter from Milima Prison pleading to be forgiven. The letter was identified as "ID3" but was never produced to form part of her evidence due to a lapse on the part of the public prosecutor. However, in the view we take of the evidence we are satisfied that PW5's evidence was corroborative of the evidence of the prosecutrix that an offence was committed on them by the appellant even though the letter was never tendered in evidence. Ground two is also dismissed. On the whole the appeal has no merit and it is dismissed forthwith. Both conviction and sentence affirmed. F. N. M. Mumba, SUPREME COURT JUDGE SUPREME COURT JUDGE