Elizabeth Thabo Phiri v People (APPEAL NO. 140/2003) [2004] ZMSC 137 (6 April 2004)

IN THE SUPREME COURT OF ZAMBIA HOLDEN ATNDOLA (CRIMINAL JURISDICTION) APPEAL NO. 140/2003 ELIZABETH THABO PHIRI AND THE PEOPLE CORAM: LEWANIKA,DCJ., CHIBESAKUNDA, JS, MUNTHALI, AJS On 3rd September, 2003 and 6th April, 2004. For the Appellant: For the Respondent: D. B. MUPETA, Senior Legal Aid Counsel L. E. EY A, Principal State Advocate JUDGMENT LEW ANIKA, DCJ delivered the judgment of the court. The Appellant was convicted of the offence of aggravated robbery contrary to Section 294 of the penal code. The particulars of the offence being that the Appellant and another on 23rd June 2000 at Ndola in the Ndola district of the Copperbelt Province of Zambia, jointly and whilst acting together with unknown persons did rob Julius LUNGU of one motor vehicle valued at Kl0,000,000.00 and at or immediately before or immediately after the time of such robbery, did use or threatened to use actual violence to the said Julius LUNGU in order to obtain or retain the said property. The evidence on record for the prosecution was that on 23rd June, 2000 the complainant said that he was working as a pirate taxi driver driving a Toyota sprinter bearing registration number ACE 4967 owned by one John KASONDE. As he was in the city centre at about 1830 hours opposite the Mulungushi bus station, he gave a lift to two men and a woman. One man sat in front of the vehicle with him and the other man sat directly behind him at the back with the woman. He drove along Independence Way and turned left at the golf course. He said that when they reached Kafubu Hotel, the passenger in front told him to go to Lubuto using the Kantolomba road and that he should stop at the fourth house after the tarmac. When he got to the fourth house and stopped, the man who was in front with him said that he was going to get his money from the house and that thereafter he would also like to go to Chibamba bar in Lubuto. When the man left, he reversed the car facing towards town and switched on the interior lights, and waited. He began to chat with the woman while the man behind appeared to be asleep with his hat covering his face. He said that when the man who had sat in front came back, he came from behind the vehicle, opened the door and got in and told him to drive to Chibamba bar. He recalled that as he tried to start the car, this man pulled his right hand and they faced each other and he saw that the man had a pistol and he was struck with the butt of the pistol on the left eye and the left collar bone. The man behind threw the safety belt around his neck and pulled him very tightly and squeezed the safety belt. Meanwhile the man in front came to open the door on the driver's side. The complainant then activated an anti theft device. The man who had opened the driver's door ordered him to do whatever he was told. This man then began to kick him while the man behind was still pulling the safety belt. As the men were attacking him, the woman pulled his penis, feeling great pain, he told them to take the vehicle and spare his life. After some time they managed to start the vehicle and he and the woman fell outside, he saw some people coming and the two men drove off leaving him holding the woman. He said that he got confused and the woman he was holding got out of his grip and ran away. He later reported the matter at Lubuto police post and was sent to the hospital with a medical report form for treatment. He said that the vehicle was later recovered. He later attended an identification parade where he identified the Appellant as the woman who was with the men who robbed him and who had pulled his penis. He said that on the day of the robbery the Appellant wore a velvet dress with a T-shirt and had given her description to the police as short, stout, with short hair and sharp eyes and a sharp voice. He also said after the identification parade the Appellant pleaded with him for forgiveness. The Appellant in her evidence in the court below testified that her co accused was her husband and that she was at home on the evening of 23 rd June, 2000. She denied being one of the passengers who had booked the complainant1s taxi from town to Lubuto. She denied struggling with the complainant and squeezing his penis. She said that on 2nd July, 2000 a police officer came to her home and found her husband, her co-accused in the court below, eating nshima and apprehended him. She agreed that she was put on an identification parade but said that nobody identified her. The learned trial Judge accepted the evidence of identification by the complainant and rejected the Appellant's evidence and convicted her, hence this appeal before us. Counsel for the Appellant has only advanced one ground of appeal and this relates to the identification of the Appellant by the complainant. In arguing this ground Counsel said that the Appellant was fully entitled to the same benefit accorded to her co-accused who was acquitted. He said that the learned trial Judge at page 39 of the record stated the reasons on which he relied in accepting the evidence of PW 4 the complainant. He said that the learned trial Judge accepted the evidence after properly warning himself in accordance with the decision of the court in NY AMBE VS THE PEOPLE, 1973, ZR, 228. He said that the main features of identification of the Appellant by PW 4 at the scene of the crime were:- 1. 2. 3. 4. that he switched on the interior light that he chatted with the Appellant while waiting for her co accused - for how long or time not stated that she wore a velvet dress with a T-shirt described to the police as short, short hair, sharp eyes and voice, fat and stout 5. body contact. He said that in his judgment the learned trial Judge correctly pointed out that apart from the identification, nothing else connected the Appellant to the offence and that this was the first time that the complainant had met the Appellant. He said that he was in some difficulty in that he had not seen the depositions of PW 4 the complainant, to ascertain whether the description given by the complainant is also contained in the statement that he made to the police. He said that if the deposition did not contain the description of short, with short hair, stout, sharp voice and eyes, he would have urged the court to ignore the description and treat it is an endeavor to polish or cement weaknesses of identification. Counsel further said that the learned trial Judge in his judgment had implied that PW 4 switched on the interior lights so that he could see who he was chatting with and that this is not what PW 4 said in his evidence. Further that PW 4 did not say in his evidence that when he was chatting with the Appellant he was face to face with her. That there was a possibility that PW 4 could have been facing in front whilst chatting with the Appellant who was seated in the back seat. He further said that the 11body contact11 with the Appellant was limited to the time when initially he was ordered to face down, his fore head was on the lap of the other man and his buttocks were facing the woman who later pulled his penis. He said that in this situation, the penis could only have been pulled from behind. That the other body contact must have been when he apprehended the woman outside the car, where it was dark and that PW 4 had stated in his evidence that he was in a confused state. Counsel also pointed out the fact that the learned trial Judge accepted the evidence of PW 4 that at Peter SINGOGO police camp after the identification parade the Appellant had pleaded with PW 4 to forgive her. But that the court did not accept the evidence of PW 4 that the Appellant's co-accused who was acquitted had also pleaded with PW 4 to forgive him. Further that the learned trial Judge had acquitted the Appellant's co-accused because PW 4 did not identify him at the identification -oarade. He said that the failure to identify the Appellant's co-accused at the parade by PW 4 goes a lot to his credibility as PW 4 had said in his evidence that he had seen him on a previous occasion when the co-accused had booked him with three girls to take them to Elisam bar. Further that when the co-accused came from where he had gone to collect money, he had sat in front with PW 4 whilst the interior light was on. That later he pulled PW 4 1s hand and faced him before hitting him on the face with the butt of a pistol. He pointed out that the court below doubted the valiility of the Appellant's co-accused and used its discretion to exclude the warn and caution statement which it had admitted in evidence and acquitted him. He submitted that more doubt should have been given to the Appellant than her co-accused in the circumstances and urged us to do so and acquit the Appellant. Counsel then went on to criticize the manner in which PW 1 conducted the identification parade. That the Appellant was taken from the cells whilst the other women who were put on the parade were sweepers employed by the City Council who were likely to have been dressed in uniforms. He also bemoaned the fact that the photographs which were said to have been taken at the parade were not produced in evidence. He said that this was a dereliction of duty on the part of the prosecution. In reply Counsel for the Respondent said that he supported the conviction and referred us to the evidence of PW 1 and PW 4 which deals with the identification of the Appellant. He said that PW 4 gave a detailed description of the Appellant and had a lot of opportunity to observe her in the car. As to the manner in which the identification parade was conducted, he pointed to the evidence of PW 1 who had, asked the Appellant after the parade if she had any complaints, and she said that she had none. He urged us to dismiss the appeal. We have considered the submissions of Counsel for the Appellant and the Respondent as well as the evidence on record. As has been pointed out by Counsel for the Appellant, the only evidence linking the Appellant to the commission of the offence is her identification ·by PW 4. The learned trial Judge in his judgment considered the opportunity that PW 4 had to observe the Appellant and was also alive to the possibility of an honest but mistaken identification. He made reference to the fact that PW 4 gave a detailed and graphic description of the Appellant and accepted PW 4's evidence that the Appellant had pleaded with him for forgiveness after the identification parade and satisfied himself that the possibility of an honest but mistaken identification did not exist. From the evidence on record, we are unable to say that the learned trial Judge was not entitled to arrive at the conclusion that he did. Counsel for the Appellant contrasted the acquittal of the Appellant1s co-accused with the conviction of the Appellant and requested us to grant the same benefit to the Appellant that was given to her co-accused by the learned trial Judge. We are unable to accede to that request and the only comment we would make is that the Appellant's co-accused was fortunate in his judgment. For the reasons that we have given, we find no merit in this appeal against conviction which we dismiss accordingly. As the Appellant was sentenced to the minimum statutory term of imprisonment for aggravated robbery, we cannot interfere with the sentence. D . L. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE S. S. K. Munthali SUPREME COURT JUDGE 9