David Dimuna v People (Appeal No 115 of 1986; SCZ JUDGMENT NO. 23 OF 1989) [1989] ZMSC 136 (10 January 1989)

IN 11£ ~ CURT <F :zwnt, HOLDEN AT LUSAKA {Criminal Jurisdiction) ~z J. OO. ENt r-0. 23 of 19&1. flp;all rtl 115 of lg)G !.lAVI) 0Ji,;11JNA V THi PEOPLE App~lluht CORN-1: Gardner, J. S., Oweupc and Chaila, Ag. JJ. S. > tOth Janu~ry, 1989. J. f'i~1anakatw<1, ileputy Director, L2gal Aid, for th::! G. S. Phiri. Senior Stat2 AdvocJtG, for th-2 r ~spond2nt c1ppoll ant· J U D G M E N T GardnJr, J. S., deliver.ed tha judg~nt of the court. Case ref erroo ._ to: (1) Kalebu Banda v The Paople (1977) Z.~. 139 .. .. ! , .. · . The appellrlnt was convict _'Cf of murdJr, th~ particulars. of..:tb~ charge ooing that ha, on thG 17th January. 1986, ~t Lus~kn did - .• murder Edson Kyamulanda. -· . ' The ~videnc~ adduced i:>y tni? prqsecution· in support of th~ charge was to the 3ff~t that PH.2, c1 hous..: s~rvant in th~ .}Jllploy of the paronts of the deceas~. who was a young boy agad approxim~t~ly on~ year und suvcn months, ~as lift in charg~ of th~ d~c~as~>d, and, on th~ day in quast-fon. h~ ~rnd i eft the d~c0as2d out.lido the house whilst hG, th~ witooss , went into the kitch~n. Wh~n ho c.'31J1e out of the hous~ t he child was missing. H-2, ther.2foN, w2nt searching for tthl boy and, JS n rGsult of what h~ \tJas t old, he went to th-:) hOUSQ of the <lpp Jllunt and qucstion~d him, but the appellant d~ni ;:.-d hJving the child. Dcspit0 this th.} app~llant was tilken to ChG_lston police as 1 r esult of which h.? }-.;!d th~ polic~ on what was d~scril>ad ~s n wild goc•se tH~s2 b~caus~ nothing was found. Subsequently,. howGv..!r the appcllent wc\S QU::)Sti on~d by two police officers PW7 and .)wa, ~ft~r which h.:: h.}(j th~ palic<J to a plac<.! near ::i ditch in whici1 th~ body nf the d0c~us~ was . • ./J?. ... .. .. . ' ... " - ( ' \.ih-2n found it was seen t;rnt the throat of th2 child w1s found. cut and a bl~adstained knif0 was lying n~~r thJ buGy. Th~r~ was evi~21lCc fr.lD tw,,; witnesso:: that th...:y hnd t?~rli.2r s0(m th0 appell:'\nt carrying th~ dcccas2<\ in his ~nns wh.:m th~ chilc' was still alive. On this ~viuenc-: t ;1e l earn\;!:~ jucigJ f. JUO~ that th;J appellant. having b~en th0 l3st µ2rs on t ..) hav~ b.:.:2n se~ri with the child alive, ~n,.1 having b2-3n the p.;rS·.;n Wh".) pw:int01: b-Jdy-:,·t0 th0 p.::iJic~ Wes guilty -::f th:;~ ')ff enc-e ,)f mur..-:!~r :;f th~ child. ·:,ut th0 .. In additiJn tJ th~ oviC~mc.} ) f th~ thr·xit of th2 child having b~~n cut. th2 post mcrt;):n evidence rev2nh::!(~ th<Jt the chiL: had b~~n saJJmizec. Mr. Mwanak;Jtwe on bchal f :.f the upp~llant crgu-ao that th.:: Jvi(.lence of th.? h.:4:ntifying witn-)ss;2s. wh:: ~lleg~t'. tJ1Jt tti~y ti~r_1 s~en th~ ilppellnnt carrying the chilJ , was susp~tt .; and t-'las n .. 1t suff'ici~nt t 0 warrant c·)nvicti m. He als:J criticisc,1 thG fact that when the knife was f :·un.:.: it was nJt subjecte·:.·: L ;;,. fing~r-print t Jst, an<~ he r ~f ~r;--.?'-~ th~ C:)Urt t:) the cas~ )f Kalebu Banda v The People (1}, in which this court said thatp except in cases where accused ~ersons are ·for instance. caught .yJWhen coming out of a stolen car. if the police fail to make fingerprint tests when they have an opportunity to do so they are guilty of dereli<;:tion of duty, as .a result of which there is a rebuttable presumption th<1 t any fingerprints on a pa~ticul~t article are not those of the appellant. He also argued that. in vi~w of th~ fact that the evidence of the police officet. PW8, as to the finding of· the body. was challeng~. another police officer who was present at the scene should hav~ bet!n called to corroborata that evidehce. f1t. ?hi r i . on b0,~d 1 f of :.::T2 Stat:.: argu~ci ti1at tii~r 1 was sttong circumstantial 2vid2;ic.~; ilih.; ti1ilt thc-r~ is no ru l...:: of la\'J .1 ~Jilic:1 call s for th0 cortobo1·0.c.ton of 0i12 i)01ic2 wi t110ss :.:V :),1 though th:~ first \•litn0ss is c:·1il l 12g2d . the rest of ttie evidenc~ adduc,~d by the prosGcution was ample corroboration of the GVid2nc2 of the policG witness. ti~ sai(.i L,at in any ~VQnt { 140 ) - J3 - \-le have considered the evidence of the witnesses who said that they saw the appellant carrying the child in his anns and 1,ie are satisfi'Fd that ther·e is no 1"eason why that evidence should not be 6Cceptedo On a test of credibility the learned trial judgl::! ii!J.s entitled to rely on that evidence. Mr. [•l:.~anakatw.e critic bed the learned trial judge for his co:m1ents on the silence of th~ appellant when put on his defence \,;hen the learned trial judge said in his judgment ''ire ilXllSOO in t..,is coort was at a loss to haZard any ct..>fmc:e;· d3pit2 this .rort•s a:Nisilg ll:ta of tl,e 1n'ise cinice of r. Jminir,;i silent. WBl i:ut CJ1 his <Efrnce te ela:tm I~ this r~spcct, in the course of the trial. when to say roti1ir>;J11 th~~ !earned ttial judge foumi that ther-o= was a case to answer and put the- app.~llant on i1is d..:fo2nce~ h2 explainoo the courses oµ,2;1 to the ap;>d I ant and said 11,)QJ rrey 0la:t als:J to ramin silaJt llJt ycu have to Lll.1a'starrl t,at is ~ u.,~i~ CDJrS.:: to tak.:i lx:caus~ at ttlis ~int; in tfo1:: I ilav;;:; cvioo-cc fran tro pros:n.rtioo am I ct, mt have mythirg frun .var sicb11 • Th~r2 is nothing friproper in a judge's cOilltlnnting on th0 fact that an appellant has r\..~ained sil~nt. Whilst a court inust not hold th~ fact that 2n accused .remains silant against ~i,n, til0rG is no tmpropriety in a cOll'lllent that only the .-: pros~~cution avidence was avo.i lable to th~ courto It is no more thun a stat~2nt of fact and does not suggest that ranaining sih~nt is an indication of guilt.. Mr. Mwanakatwc's criticism ther-2for1:: cannot succ,:}ed as .:>, ground of appeal. With r~ard to th~ qu0stion of a test for fingerprints. w~ agr2e th~t in thu case of :<alebu Banda -v- The Pi;!opl~ ( 1) we did point out that it could be a d~reUction of duty from which cortai.n presumptions ~:ould arise when thG polic;} have an opportuinty to take fing~:~prints and do not do so. but; W'2! i1av2 also point~d out that it must be 2stablished that the polic'2 did in fact h~ve an opportunity to tako fingerprints in thut it must b~ astablish..::!d that the surfac-2 of th0 material. to b0 tested~ _thc clirnntic conditions and other circumstanc~s would ;}nab!~ thQ polic0 to t,1!<~ such prints. In th~ absence of such evidcnc~ there is no d2r2liction of duty. This ground of app~al must also fJil. { 141 ) :.. J4 - With r~arcf tcfth2 question wh~thcr or hot one police officer •' , I •· • • llut there is no ~stioo, that there is any who is chal.l~ngad should be corroborat_ed9 we confinn tt:'tat we have Said that it ma.v be desira~le in such circumstances, if there ar~ oth~r police officers available. for them to be call~d to givu evicJence. JdJJe of lnw or 9therwis~ for there to be corr:,bm•□tion for a ~ingle police witness'.. In this particular cnsc w;;i agree in nny event with tha learneH Stat~ Advocate:whan h~ sai♦ that the fact that the appallant was·the last person to be seeri with the child alive was corroboration of tho other evidmici:,. That grvUnd i)f appeal must also fail. ' . ' On the whole of :th.: evid2ncc w~ arl? S!ltisfiod that the trial court daalt with this casG prop,)rly and none of the grounds :)f . appeal can succeed. The convicti0n must t~~r~f~r~ stnnd. ThG appeal against conviction is dismissed; the scnt2ncd of death for thIS particul,1r offcnc1.1 is mandatory and no i1pp~al li~s th\°:!ref rom. • On~ other matter which was dealt with by Mr. Mwarlakat~e on . ' In behalf af th~ appellant was th~ suggastion that th~ r.ppGllunt was a juvnnile a~ thil time of tho cormnission Jf tn~ 0ffonco. ,::,rd~r to ascertain the truth ,)f the ·matter this court ordered that there should ba mooical ~xaminatiJn. The court rec~ivi2<l a report that tho app-e1Iant was in 1983 at l~1st twenty-five y~~.s of age and, as th:a offence was CJ111T1ittcd in Januury; rn86. thut w0uJd'indicate that th~ app2ll~nt was no Iongcr.n juvenil~ ut the ti~ of th~ ci. J!Jlllissi;:,n of th..: :Jffonc~. We were thorefora nske!ci t(J adjourn tho matter so that th~ appGllant could prrxluc~ his national ragistrathm card. Wh,3n he pr.-.,duccd the card it was found thllt he was born in 1958. After this rt ... Hwam1katwG, on bahalf Jf thc appellant, indicated to the court that he would m;t pursu2 th-2 argument that tht) appellFmt wns a juvcnil.:.;~ ~Ju agrea with this course tak0n by Mr. Mwanflkotw..: and find that th.; appoll unt was not a juvenil~ at thQ time of the co.1V11issi.:)n 8f th. J ·Jff.2nce and the law therefore must take its course. I ,,- .•" u:.> { 142 ) ... J5 - ' .... ~---••<·-~······ · : 13:. T. 6ardner . SUPREM~ COURT JUDGE •, iJ. K. Bwcupe ACTING SUP~EME COURT JUOGE ·· ·· ················ M. s. Chaila ACTING SUPREME COURT JUDGE - /ic. -