Davies Cheelo v People (SCZ APPEAL NO. 97 OF 1997) [1998] ZMSC 112 (5 November 1998)

IN THE SUPREME COURT OF ZAMBIA HOLDEN ATKABWE (Criminal Jurisdiction) SCZ APPEAL NO. 97 OF 1997 DA VIES CHEELO vs THE PEOPLE APPELLANT RESPONDENT Coram: Sakala ADCJ, Chirwa and Chibesakunda JJS 11th August and .5th November, 1998. For the Appellant Mr. P. Mumba, Acting Senior Legal Aid Counsel. For the Respondent Mr. J. Mwanakatwe, Principal State Advocate. JUDGMENT Sakala JS delivered the Judgment of the Court. The appellant was tried and convicted on a charge of aggravated robbery contrary to section 294(1) of the Penal Code. The particulars of the offence alleged that the appellant and seven others on 14th February 1995, at Kabwe, in the Kabwe District of the Central Province of the Republic of Zambia, jointly and whilst acting together, robbed Julie Chakulunta 66 roofing sheets valued at K690,000.00 the property of Julie Chakulunta and used violance at the time of the robbery. The seven co-accused were acquitted. The appellant was sentenced to 15 years imprisonment with hard labour. The prosecution evidence established that during the night of 14th February 1995, the Mulungushi Boating Club was broken into by a group of thieves armed with assorted implements. These thieves used violance to Pws 1 and 6. Subsequently, they robbed these witnesses the iron sheets in question. The motor vehicle used to carry these stolen sheets belonged to PW3 who was the driver of the vehicle on the night in question. According to this witness's evidence he had been hired by the appellant a day before to carry these sheets. The sheets were recovered the following day from the house of PW2, the brother to the appellant. From the record, the prosecution case centred on the evidence of PWJ the driver of the vehicle that carried the stolen sheets and PW2 the brother of the appellant at whose house the sheets were off loaded during the same night few hours after they were stolen and from whose house the sheets were recovered on the same day. The summary of PW3's evidence is that on 13th February 1995 he was approached by three people at his house. They booked him to carry roofing sheets for them from a farm along Mulungushi Power Station road. He could not take them on that day because his vehicle had developed a fault. He took them on the 14th February 1995 at 15. 00 hours. According to his evidence he knew the First Appellant before. On the way to the farm, the vehicle developed a fault but finally they reached at a gate where he was told to wait. Subsequently the people who had hired him brought the sheets to the vehicle and loaded the same on the vehicle and left. On the way back they found that the road had been blocked by logs of wood. At this spot his vehicle was stoned but he continued driving until they arrived at the house of PW2 where the iron sheets were off loaded. On the same day he was picked up by the police, he lead them to the house of PW2 where earlier in the day the stolen iron sheets had been off loaded. The evidence of PW2 was that around 01.00 hours on 15th February 1995 PW3 drove the vehicle to his house where the iron sheets in question were off loaded. According to PW2, PW3 told him that these sheets belonged to his brother the appellant. PW2 kept the sheets but later in the day the police approached him at his house in company of PW3 and collected the sheets. PW7, a Police Officer, investigated the case. He received the report of robbery on 15th February 1995 . On the same day he traced PW3 who led him to the house of PW2 and to the house of the appellant. In his evidence on oath the appellant denied any involvement in the robbery. The learned trial judge reviewed the evidence and treated PW3 as a witness with a possible interest of his own to serve. The court also addressed its mind to PW3's identification evidence of all the eight accused persons. The court found that the claim by PW3 that he knew all the appellants could not be relied on. The court however accepted that out of the three people who had earlier hired him, the appellant was one of them who had been with him during the day for two consecutive days. The court concluded that the appellant was properly identified by PW3 because of the length of time they had been together. The court acquitted the seven co-accused persons on the basis that the identification evidence was unsatisfactory. In arguing the appeal before us Mr. Mumba informed the court that he was relying on the heads of argument filed by the appellant. Thereafter he read out the appellant's detailed heads of argument. The appellant's heads of argument as read out by the learned defence counsel are centred on two grounds of appeal. The first ground of appeal attacks the trial judge's finding on identification of the appellant based on the evidence of Pws 2 and 3. The upshot of the submission on this ground was that the trial judge seriously misdirected himself by relying on the evidence of Pw3, the driver, who was clearly an accomplice witness with an interest of his own to serve and was therefore unreliable. The appelJant in his heads of argument attacked the evidence of PW3 on the basis that his behaviour was not entirely consistent with that of a person who had merely been booked in that according to the evidence when the men reached the home of PW2, he, PW3, was among the men who alighted from the vehicle and joined others who went to knock at the house of PW2, some distance away at 0100 hours. According to the appellant there was no reason and no justification for PW3 having followed the men to PW2' s house contending that he must have been part of the thieves. The appellant further pointed out that PW3 was quite unconcerned with what had happened to his vehicle and continued operating normally the following morning as if the windscreen had not been damaged. He did not report the damage to his vehicle to the police until he had been apprehended and was in police custody released only when he gave a statement implicating the appellant and others. The appellant further contended that the facts of the case showed that PW3 could not be relied on to make the identification safe to convict and that PW3 's evidence required corroboration .. The second ground of appeal attacks the trial court's finding that the evidence of PW2 corroborated the evidence of PW3. The appellant submitted that on the crucial issue of identification PW2 did not corroborate the evidence of PW3 in that the evidence of PW3 that they went to PW2's house at night and that it is the appellant who knocked at the door of PW2' s home is not supported by PW2 who said he did not see the appellant at his house on the night in question at O 100 hours but saw one Mike Cheeto and PW3. Mr. Mwanakatwe opened his submissions by informing the court that the appellant was rightly convicted on the evidence of PW3 and that PW3 was not an accomplice. Counsel submitted that even if PW3 had an interest of his own to serve his evidence was corroborated by that of PW2 who testified that the appellant came to see the stolen sheets in the morning, the evidence which was not challenged. Later in his submissions Mr. Mwanakatwe informed the court that he, was in difficulties to show how the evidence of PW2 corroborated that of PW3. According to Mr. Mwanakatwe he found it unsafe to support the conviction. We have very carefully examined the evidence on record and the judgment of the learned trial judge as well as the spirited submissions of the appellant as contained in his written heads of argument. We have also taken note of the position taken by the learned Principal State Advocate that he found it unsafe to support the conviction. While the State is entitled to take any position in an appeal, at the end of the day it is the court that has to render a decision. The appellant forcefully argued his case based on the evidence of identification and corroboration. His contention is that he was not at the scene of the robbery and that he was not involved in the robbery. Our understanding of the prosecution evidence is that their case is not solely dependent on the issue of identification but largely on possession of recently stolen property. On the same day of the robbery the vehicle that conveyed the stolen property to PW2's house was found being driven by PW3 who admitted transporting the stolen items. PW3 led to the apprehension of the appellant and to the recovery of the stolen items. The evidence of PW3 was that he had been approached two days before by the appellant to hire him. The appellant's defence was a total denial. The evidence of PW3 was that he went with the appellant to the place where the sheets were transported and delivered . It is the prosecution's case that PW2 from whose house the stolen items were recovered is the brother of the appellant. We accept that on the night PW3 delivered the iron sheets at PW2' s house he might not have seen the appellant but it is PW2's evidence that he saw the appellant in the morning who came to his house. Although PW3 is a witness with a possible interest of his own to serve, his evidence of being hired by the appellant cannot be said to be a fabrication. We are satisfied that the appellant was in possession of recently stolen property which was delivered at his brother's house. We therefore dismiss the appeal against conviction as being without merit. No appeal lies against the mandatory minimum sentence of 15 years for aggravated robbery. E. L. Sakata, ACTING DEPUTY CHlEF JUSTICE. D. K. Chirwa, SUPREME COURT JUDGE . .... .. L(L ........ .. . L. P. Chibesakunda, SUPREME COURT JUDGE.