Shawa v People (Appeal 44 of 1985) [1987] ZMSC 83 (18 November 1987)

IN THE SUPREME COURT FOR ZAMBIA Appeal No. 44 of 1985 HOLDEN AT LUSAKA (Criminal Jurisdiction) DAVID SHAWA Appellant -v- THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner, AS., and Bweupe, AJ. S. 18th November^ 1987 For the Appellant t G. Mhango, of Nyangulu & Company, For the Respondent : Lt. Col. G. R. Kayukwa JUOMENT Bweupe, AJ. S., delivered the judgment of the court The appellant David Shawa was sentenced to death following upon his conviction on a murder charge of Amon Mwanza contrary to S.200 of the Penal Code. Briefly the prosecution case was thisG. On the 2nd of January, 1984 the deceased disappeared and some of the cattle of which he was herdboy also went missing on the same day. The missing cattle belonged to a Mr. Mazaka, PW2's husband. PW4 was the last man seen in the company of the deceased. For this reason PW4 was suspected by the relatives of the deceased to have caused the disappearance of the herd­ boy and the cattle. On 4th January, 1984, the appellant handed eight head; of cattle to PW6, his uncle. On 7th January, 1984, the appellant was seen with four head of cattle by PW5. These animals were kept by PW5 for some days before they were claimed. On 8th January, 1984, the deceased was found dead in an old well. The post-mortem examination revealed that the deceased suffered a compound fracture of the skull with epidural haemorrhage which caused the death of the deceased. The appellant denied any involvement with the death of the deceased,but admitted that although he took the cattle now said to belong to a Mr. Mazala without consent he found then grazing without a herdboy. 2/... We have : J2 : We have given this ease our most careful thought. There Is no doubt that the prosecution evidence upon which they relied was largely Circumstantial. In convicting the appellant the learned trial judge relied heavily on the appellant's confession. In his own words the judge saidt "It is quite clear from my ruling in the trlal-within- a-trial that I determined both the question of voluntari­ ness and the exercise of discretion. At this stage the question of voluntariness does not arise for consideration. But the question of the exercise of discretion can Still be considered at this stage on the basis of the totality of the evidence." It is clear from the above that the learned judge refrained from considering the question of voluntariness. Wo are of the view that the question of voluntariness can be considered at any time when it is raised* The accused did not give evidence In a trial- within-a-trial but in his evidence in defence gave a detailed account of the police brutality leading him to the making of the statement. The learned judge should have given consideration to the appellant's evidence as to whether the statement was voluntary or not. The court made a serious error in not doing so. We are unable to support the conviction based on the appellant's alleged confession. We set the conviction aside. It follows that the sentence of death falls away also* We would allow this appeal* M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner. SUPREME COURT JUDGE B. K. Bweupe ACTING SUPREME COURT JUDGE