Emmanuel Siluyele v People (APPEAL No. 150/2017) [2018] ZMCA 633 (22 February 2018)

IN THE COURT or APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: APPEAL No.150/2017 EMMANUEL SILUYELE APPELLANT AND THE PEOPLE RESPONDENT CORAM : Chisanga JP, Chishimba and Kondolo, JJA On 3 rd October, 2017 and 22 nd February, 2018 For the Appellant : Mr. S . Mwcemba - Legal Aid Counsel - Legal For the Respondent : Mrs. Khw~wayo - Chief State Advocate - NPA Aid Board JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. Nsofu Vs. The People ( 1973) ZR 287 (SC) 2. Gift Mulonda Vs. The People (2004) Z. R 135 (SC) 3. Martin Nc'ube Vs. The People Appeal No. 22 of 2017 (CAZ) 4. R. Vs. Coetzee (1943) 10 E. A. C. A. 56 LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Penal Code, Chapter 87 of the Laws of Zambia The Appellant was charged and convicted of the offence of defilement contrary to Section 138 ( 1) of the Penal Code, Chapter -J2- 87 of the Laws of Zambia . Th e particulars of the offence alleged that the Appellant between 1st Ma rch, 2014 and 31 st March, 2014 had unlawful carnal knowledge of a girl under the age of 16 . The evidence by the Prosecution was as follows, (PWl) J essy Mwape, the prosecutrix's mother testified that she queried h er daughter upon noticing that she was looking fat. At the hospital, it was established that the prosecutrix was pregnant. The prosecutrix informed her that the Appellant, Emmanuel Siluyele had impregnated her. The prosecutrix's father, Lazarous Mwape's (PW2) evidence was substantially the same as that tendered by PWl. Both parents testified that the prosecutrix was 15 years at the material time . Further, that there was no marriage subsis ting between the prosecutrix and the appellant. PW3 was the prosecutrix . She narrated to the Court that t h e Appellant defiled her twice on the same day in March, 2014 after h e called her on the pretext of informing her something about her father. Thereafter the appellant pushed her down, covered her mouth with his hand and had carnal knowledge of her. The prosecutrix stated further that she did not disclose to h er parents for fear of being beaten. She -J3- became pregnant as a result of the defilement. PW3 denied having been married to the Appellant. PW4 a teacher at Twikata ne School attended by the prosecut rix, testified that according to the class register tendered into evidence , th e prosecutrix was 15 years old at the time the offence was allegedly committed. PWl and PW2 both confirmed the prosecutrix's age, and that she was born in November , 1999. The arresting officer. Detective Constable Sikazwe testified that the Appellant had admitted h a ving had carnal knowledge of the girl after proposing marriage which was accepted. Further that he w as married to the prosecutrix. The prosecutrix's parents denied t h e existence of any marriage betw een the Appellant and the prosecutrix. PWS subsequently charged a n d arrested the Appellant. A medical Report as well as a School Register for Twikatane was produced in evidence . The crux of the Appellant's defence was that he was married to the prosecutrix and had actua lly paid dowry to her parents. He doe s not deny the fact that he had s exual intercourse with the prosecutrix . The Appellant further stated t h at the prosecutrix had in fact informed -J4- him that she was 21 years old . He added that the prosecutrix already had a child with a person named Chris. The trial Court found that there was no subsisting marnage between the Appellant and the prosecutrix. Further, the trial Magistrate, by ocular, observation noted that the prosecutrix looked young. The trial Court found that the Appellant had defiled the prosecutrix and convicted him. The Appellant to 15 years imprisonment. The Appellant being dissatisfied with the conviction and sentence, has appealed, advancing a sole ground of appeal that; "The trial court misdirected itself in law and in fact when it convicted the Appellant for the offence of Defilement without considering the Statutory Defence raised by the Appellant." The Appellant filed into court heads of arguments dated 3 rd August, 2017. It was argued that the Appellant had sufficiently raised the statutory defence under Section 138 (1) of the Penal Code, but the trial court in its judgment dwelt much on the issue of whether there was a marriage subsisting between the Appellant and the prosecutrix. The court neglected to address the issue of the statutory defence -JS- raised by the Appellant. Further, that the Appellant merely needed to prove the defence on a balance of probabilities. It was submitted that the trial Court fell in error when she failed to comment on the physical a ppearance of the prosecutrix. Further, that the conduct of the Appellant by proposing marriage to the prosecutrix; approaching the p r osecutrix's parents when he heard she was pregnant; and by explaining his intention to marry the prosecutrix to the arresting officer early enough, shows the Appellant believed that the prosecutrix was above the a ge of 16. It was contended that the Appellant had successfully pleaded the defence under the proviso. We were ref erred to the decision of the Supreme Court in the case of Nsofu Vs. The People f1J where the court discussed the circumstances under which the proviso to the offence of defilement may succeed. The Appellant urged the Court to find that the Appellant reasonably believed that the prosecutrix was above the age of 16 and quash his conviction. At the hearing Counsel for the Respondent, Mrs. Khuzwayo , made viva voce arguments in r e sponse. She argued that the trial court -J6- did not misdirect itself in law a nd fact when it convicted the Appellant for the subject offence. The Respondent submitted that the trial Court had considered the Appellant's defence that he was married to the prosecutrix. Further, that the trial court properly found that there was no marriage between the Appellant and the prosecutrix. With regards the issue o f the prosecutrix's age , the Respondent argued that the trial court considered the statutory defence raised by the Appellant when it made a n ocular observation of the prosecutrix and came to the conclusion tha t the child was below the age of 16. The Respondent urged the court to confirm the trial court's conviction. Counsel for the Appellant, Mr. Mweemba, made viva voce submissions in response. Counsel conceded that the issue regarding the marriage was sufficiently addressed by the trial court. However, it was the Appellant's contention that the statutory defence raised by the Appellant was not amply addre ssed by the court considering that the Appellant stated that the prosccutrix told him that she was 21 years old. Further, that the Appellan t knew of a man called Chris who has fathered a child with the prosccutrix. Counsel argued that these facts -J7- raised inferences that the Appellant reasonably believed that the prosecutrix was above the age of 16. The Court was therefore urged to quash the conviction. We have considered the appeal before us, the Judgment of the lower Court, the record of proceedings as well as the authorities cited and the submissions by both Pa rties. The offence of defilement under Section 138 ( 1) of the Penal Code as amended by Act No. 15 of 2005 and Act No. 2 of 2011 stipulates as follows; "Any person who unlawfully and carnally knows any child commits a felony and is liable, upon conviction, to a term of imprisonment of not less than fifteen years and may be liable to imprisonment for life." It is trite that the age of a victim is a cardinal ingredient of the offence of defilement. We refe r to the Supreme Court case of Gift Mulonda Vs. The People f2 J and our decision in Martin Nc'be Vs. The People f3J in which we stated that the age of a victim in defilement cases 1s crucial and a very essential ingredient of the charge. The proviso to Section 138 (1) of the Penal Code creates a statutory defence for the offence of defilement. An accused person may raise a defence that he had rea sonable belief that the prosecutrix was -J8- 1n fact above the age of 16. The proviso 1s couched 1n the fallowin g terms; "Provided that it shall be a defence for a person charged with the offence under this section to show that the person had reasonable cause to believe, and did i n fact believe, the child against whom the offence was committed was of, or above, the age of sixteen" In order for the statutory defence to succeed the accused p erson must have a reasonable cause to believe that the prosecutrix was in fact above the age of 16. The b elief is determined by having regard to all the circumstances of the case. A perusal of the record , specifically the Appellant's defence , reveals that the Appellant alleged that h e was under the impression that the prosecutrix was above the age of 16. The learned trial Magistrate w a s of the view that the prosecutrix was under the age of 16 . In the cas e of R. Vs. Coetzee r41 the Court of Appeal for Eastern Africa stated , at page 58, that; "A man who has carnal kno wledge of a young girl whose appearance suggests that she is of or a bout the age of consent runs a decided risk and it is his business to a d dress his mind to the question of age and assure himself on reasonab le grounds that he is not committing a breach of the law." The record will show that the Appellant in his defence stated t h at the prosecutrix was 21 years old. He added that he had intended to -J9- marry the prosecutrix. PWS, Sydney Sikaluzwe, the arresting officer confirmed that the Appellant h ad informed him that he intended to marry the prosecutrix. The prosecutrix denied being married to the Appellant. Her parents also denied that a marriage existed between the Appellant and the prosecutrix. The Appellant by stating that he was informed by the complainant that she was 21 years old and believed the same to b e true had raised the statutory defence under the proviso to Section 138 (1) of the Penal Code. Th e prosecutrix was 15 years old at the time the offence was committed . We are of the decided view that once the statutory defence is raised, a trial court ought to make a determination of two cardinal issues namely; whether or not the accused had reasonable cause to believe that the victim was 16 years or over at the time ; and secondly whether the accused actually b elieved that this was so. The trial court in disproving the Appellant's defence stated the following at page J 11 of the judgment; -JlO- "It has been proved beyond doubt that the girl was 15 years of age at the time of the offence and she looked young and stopped School in Grade 7 for the foregoing reasons, I find that all the necessary ingredients of the offence have been proved .. . " The crucial question th at is raised at this point is what constitutes reasonable grounds for a belief that the prosecutrix is of or above the age of 16 years. We are of the view that the observation b y the trial Magistrate that the prosecutrix looked young was not sufficient to assess whether or not the Appellant had reasonable b elief that the prosecutrix was above the age of 16 given the circumstances of this case. The circumstances of this case are that, the prosecutrix told the Appellant that she was 21 years old. A fact not challenged in cross examination. Further, that the Appellant intended to marry her and had allegedly paid dowry alth ough the prosecutrix and her parents denied this fact. The Appellant further stated that he knew that the prosecutrix had a child with a person named Chris. This fact was also not disputed. Aside from the prosecutrix's physical appearance noted b y the trial Court, we are of the view that there were other factors that the trial magistrate ought to have considered in determining whether or -Jll- not the Appellant could have h ad reasonable cause to believe that the prosecutrix was above the a ge of 16. Factors such as that the complainant, had informed the Appellant that she was 21 years old. Further that she previously had a child with Chris . These factors would form reasonable cause to the appellant to believe that the girl was above 16 years old. Further there was a proposal of marriage. It is for the Court to decide whether or not the belief was reasonable . Once an accused raises sufficient evidence of his reasonable belief, it is for the prosecution to prove beyond reasonable doubt that the accused person did not reason ably believe that the prosecutrix was above 16 years old, it is further for the Court to critically examine the evidence adduced and satisfy itself that the appellant reasonably believed that the complainant w as above 16 years. We are of the view that th e accused person had good grounds for believing that the girl was above 16 years and in fact believed it. Having reasonable cause implies an objective standard, namely that ordinary reasonable persons in the position of the accused would have found on the circumstance of this case that the accused reasonably believed that the girl was of or a bove 16 years. -J12- Indeed it appears to us that the accused person had reasonable cause to believe the above. The lower court erred 1n law and fact by failing to make a determination on the issue of r easonable cause to believe that the girl was above 16 years old. The statutory defence und er Section 138 (1) of the Penal Code exonerates an accused person from criminal liability if the conditions necessary for establishing it are satisfied. It is the duty of the trial court to evaluate and assess t h e evidence that exists and to decide if such conditions are satisfied. While the burden to advance the d efence lies with the accused person , it is the duty of the Court to consider all the relevant circumstances of th e case . We are of the view from t h e evidence adduced in the lower court that serious doubts as to the g uilt of the appellant were raised and as such it would be unsafe to allow the conviction to stand. The burden of proof in criminal cases r ests on the prosecution and must b e discharged at all material times. We are of the further view that by failing to consider all the circumstances in light of the sta tutory defence raised by the Appellant, -J13- the trial Court misdirected itself. Given the circumstances of this case it is not farfetched that the App ellant had reasonably believed that the prosecutrix was above the age of 16 years. The trial Court ought to have considered the statutory defence raised by the Appellant. This was a serious misdirection on the part of the Court below; by shutting out the available defence by the Appellant. We find merit in the s ole ground of appeal raised by the appellant. We accordingly qu a sh the conviction and set aside the sentence passed by the lower Court and order that the appellant b e released forthwith. The appeal is accordingly allowed . . . . . . . . . . . . . . . . . . . . . . . . . . £ ................... . F. M Chisanga JUDGE PRESIDENT COURT OF APPEAL F . M. Chishimba COURT OF APPEAL JUDGE M. M. Kondolo, SC COURT OF APPEAL JUDGE ..................