Emmerson Kanyengele v The People (003/2019) [2019] ZMCA 403 (26 June 2019)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA ( Criminal Jurisdiction) APPEAL NO. 003/2019 BETWEEN: ... J .1 EMMERSON KANYENGELE APPELLANT AND THE PEOPLE RESPONDENT Coram: Makungu, Sichinga, f,fgulube. J. J. A On 23rd April, 2019 and . ;;J..f;, ..... day of June, 2019 c l,,. For the Appellant: Mr. M. Mankinka - Legal Aid Counsel of Legal Aid Board For the Respondent: Mrs. M. Tembo Weza - Acting Senior State Advocate, National Prosecutions Authority JUDGMENT MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. David Zulu v. The People {1977) ZR 151 {SC) 2. Machipisha Kombe v. The People (2009) ZR 292 3. Musupi v. The People (1978)ZR 271 4. George Musongo v. The People (1978) ZR 266 5. Chansa v. The People (1975) ZR 136 {SC) 6. Kalebu Banda v. The People {1977) ZR 169 7. Wilson Mwenya v. The People (1990) SJ 8. Ndakala v. The People (1974) ZR 19 9. Khupe Kafunda v. The People (2005) ZR 31 1 0. Mkandawire v. The People SCZ Judgment No. 4 of 1978 11. 12. 13. Donald Fumbelo v. The People SCZ Judgment No. 4 76 of 2013 Chitalu Musonda v. The People -Appeal No. 134/2014 Chiyovu Kasu mu v. The People - SCZ Judgment No. 18 of 1982 14. Simon Miyoba v. The People (1977) ZR 292 15. William Muzala Chipango v. The People (1978) ZR 435 Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia The appellant, Emmerson Kanyengele, was convicted on one count of murder, contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. Particulars of the offence were that the appellant on 1st January, 2018 at Gwembe District of the Southern Province of the Republic of Zambia, did murder one Lawrence Kanyengele. Upon his conviction, he was sentenced to death. He is now appealing against both conviction and sentence. At trial, five prosecution witnesses were called. Their comprehensive evidence was to the effect that on 1st January, 2018, PWl (Elina Muleya) the daughter to the deceased left her village, Chilule, to celebrate New Year's Day at a nearby village, Namomba. On her return, she passed through a place called Nakaye where her father had gone merriment but he was not there. On her way back home, she found someone lying on the side of the road. It was raining at the time. When she arrived home, she asked her mother PW2 (Jennifer Haapenga) on the where abouts of her -J2- father. She was informed that he had not yet returned. She told the mother about the person she saw lying on the road and when asked what kind of clothes the person wore; she gave the description fitting the clothes her father wore when he left home. They immediately proceeded to view the body and discovered that it was indeed PW 1 's father who is ref erred to herein as the deceased. Later, PW2 reported the matter to the deceased's mother and the headman and they proceeded to the scene where the headman inspected the body and concluded that he was shot dead. The matter was then reported to the police. In addition, PWl heard the appellant confessing to killing her father at the meeting. PW2 also testified that she heard the appellant saying that he would kill the deceased before maize harvest time. Both PWl and PW2 stated that the appellant and the deceased were not on good terms. PW3, Phillip Kanimba Simasikili, a farmer and cousin to both the appellant and deceased testified that when he heard about the appellant's death, he proceeded to Chilule Village where he found the corpse outside the house. He then requested the headman to convene a meeting. The headman told him that the appellant had -J3- two days before the material date approached him and told him to wait and see what was going to happen in the village. Further that, he asked the appellant if he had killed the deceased following his earlier sentiments in 2016 that he would kill the deceased for bewitching him. The appellant then confessed to killing the deceased in the presence of a huge crowd and five headmen. The appellant led them to a nearby bush at the boundary of the appellant's kraal where a homemade gun was revealed under some big stones. At the time these revelations were made, the atmosphere was calm and friendly. Further evidence was that the appellant was a hunter and not a farmer . PW4, Ocean Mweene, a member of the neighbourhood watch was the one who apprehended the appellant after he confessed. PW5, Detective Inspector Oscar Sendo investigated the matter. He visited the crime scene and upon inspection of the corpse, he discovered that there were bullet wounds at the back of the body. He retrieved a homemade gun that allegedly belonged to the appellant. The gun and the four pellets were subjected to forensic ballistic examination. The Post mortem report, the home-made gun and the ballistic examination report were all produced in evidence . -J4- The appellant in his sworn evidence stated that on the material day (1 st January, 2018) he had gone to herd cattle in the bush from 09:00 hours to 17:00 hours away from the village. At about 19:00hrs~ his wife came back home from her New Year's Day celebration and he was not feeling well at the time. They retired to bed after the wife had dinner. After some time, he heard a loud bang on his door and upon inquiry, he realized that it was his daughter, Loiness Kanyengele who came bearing bad news that his brother Emmerson Kanyengele had been killed. The following day, he called for a meeting to establish how his late brother died. In the meeting, PW 1 mentioned that she knew the person who had killed her father but she refused to reveal the suspect even after being pressed. Thereafter, people asked who the closest relative was and everyone pointed at the appellant. Consequently, he was apprehended and manhandled and the atmosphere was not good as people were forcing him to confess to the crime. He denied killing his brother. He stated that it was PW2 who revealed that he (appellant) was given a gun by his father. He was not in a position to lead the group to where the gun was because his hands and legs were tied with a metallic chain. It was his nephew who retrieved the gun from where it was hidden under a stone where -JS- the father used to keep it before he died. He stated that he was a farmer and not a hunter. That the prosecution witnesses lied when they stated that three days prior to the ordeal, he threatened to kill his brother. That all those that testified against him hated him and were jealous of him. Upon evaluating the evidence before him, the learned trial Judge found that Lawrence Kanyengele died on 1st January, 2018 and according to the Post Mortem Report, the cause of death was massive internal bleeding from gunshot wounds in the liver, stomach and intestines. The pellets that were removed from the deceased's body matched the homemade gun which belonged to the appellant. It was also the lower court's finding that there was no direct evidence connecting the appellant to the commission of the offence as there was no eye witness. He relied on the case of David Zulu v. The People 11J and the evidence of PWl, PW2 and PW3: The evidence of PWl and PW2 to the effect that the relationship between the appellant and the deceased was not good. PW3's evidence that he was told by the appellant in 2016 that he intended to kill the deceased for bewitching him. The court was of the view that the evidence of the threats to the deceased's life made by the -J6- appellant and the recovery of the home-made gun which was hidden by the appellant amounted to 'odd coincidences.' The Judge relied on the case of Machipisha Kombe v. The People. f2J on the principle that odd coincidences if unexplained could amount to evidence. On the issue whether PWl and PW2 were witnesses with interest of their own to serve, the lower court relied on the case of Musupi v. The People (3J and found that there was no reason why PWl, the niece to the appellant would be biased against him. That the appellant's defence as to why PWl hated him cannot be sustained. He also found that the evidence of PWl and PW2 was corroborated by an independent witness, PW3 and the odd coincidence that the deceased died from bullet wounds and the appellant was the one who led the family members and other mourners to the recovery of the homemade gun that fitted the pellets found in the deceased's body. The lower court also found that there was no need to discuss the issue of confession because of the circumstances under which they were obtained. On the issue of the alibi raised by the appellant, the trial court found that the same was only raised at trial and he -J7- considered it as an afterthought. The court was of the view that the appellant had the opportunity to meet and kill the deceased. In conclusion, the lower court took the position that the circumstantial evidence connected the accused to the commission of the offence and the only reasonable inference that could b e drawn was that of guilt. This appeal is based on two grounds couch ed as follows: 1. The learned trial court misdirected itself in law and in fact in convicting the appellant on circumstantial evidence when the inference of guilt was not the only reasonable inference that could be drawnfrom the/acts. 2. The trial court erred in law and fact when it refused the defence application to produce ID4 and IDS through the PWS, the arresting officer. At the hearing of the appeal, both Counsel relied on their written heads of argument. In his written arguments Mr. Mankinka in support of ground one argued that appellant was convicted on circumstantial evidence: that the appellant threatened the deceased prior to his demise, he led the family members and other mourners at the funeral to the recovery of the gun which was hidden under a big stone at a nearby bush from the appellant's -JS- village and house and the appellant and deceased were not on good terms. According to counsel, this evidence was not cogent enough to permit only an inference of guilt. On the issue of circumstantial evidence, he relied on the case of David Zulu v. The People. t1J Mr. Mankinka added that the alleged odd coincidences highlighted by the trial court were not properly analyzed. There was evidence to the effect that the appellant was coerced at the family meeting to reveal the gun. Even assuming that he confessed to murder to persons not in authority, the circumstances under which this was done was unfair as seen from the evidence on record. He on this regard relied on the case of George Musongo v. The People 141 wherein it was held among other things that: " .... The principles of fair conduct underlying the independently of those rules, and unfair or improper conduct on the part of the people other than police officers can equally lead to the exclusion of the evidence in the discretion of a court." In light of the foregoing, counsel stated that the court was on firm ground when it rejected the evidence of the alleged confession. With respect to the firearm used, it was submitted that there is no evidence to show beyond doubt that the firearm, exhibit Pl, was -J9- the one that was used to murder the deceased. The forensic ballistic examination fell short to prove that the pellets were actually discharged from the appellant's gun. The said gun is not the only one that can chamber cartridges of caliber 18.5 mm (12 bore). Furthermore, the pellets were never tendered in evidence in the lower court. The trial court could not see the various points on which the expert based his conclusions. He referred to the case of Chansa v. The People (5) where it was held: "In the present case the evidence makes it clear that there were photographs and other test material available to be placed before the court, and the failure to produce that material is fatal. The learned trialjudge should not therefore have accepted the opinion of the expert." In the case of Kalebu Banda v. The People (6J it was held as follows: "Where evidence available only to the police is not placed before the court, it must be assumed that, had it been produced, it would have been favourable to the accused." According to Mr. Mankinka, the evidence on record reveals that although the appellant was in the village, he was nowhere near the place where the deceased's body was found. Further, the failure on -JlO- the part of PW2 to report the threats made by the appellant makes her a suspect witness. In aid of his submissions, he relied on the case of Wilson Mwenya v. The People f7J where it was held as follows: "In our view, for the reason already stated, namely, failure to report the incident, PW3 was a witness with an interest of his own to serve. His evidence also require corroboration... " Mr. Mankinka submitted that the failure by the prosecution witness to report threats made to the deceased's life by the accused earlier must weigh heavily against them. In Ndakala v. The People f8J it was held as follows: "The corollary to the principle that evidence of early com.plaint is admissible to show consistency is that the failure to make an early complaint must be weighed in the scales against the prosecution case." On this basis, counsel argued that the odd coincidences were not strong enough to permit an inference of guilt. That the appellant gave a reasonable explanation of how he came in possession of the firearm and why he used to keep it 50 metres away from his home. Accordingly, the inference of guilt was not the only reasonable inference that could be drawn from the circumstances of the case. -Jll- In countering ground one of the appeal, Mrs. Tembo - Weza submitted that there was strong circumstantial evidence linking the appellant to the murder. She relied on the case of Khupe Kajunda v. The People. (9J She stated that this circumstantial evidence can be attributed to the appellants conduct before and after the demise of his brother. The evidence of PW l I PW2 and PW3 reveals that the relationship between the appellant and the deceased was bad. PW2 heard the appellant threaten the deceased. The appellant told Chief Chilule that he should wait and see what would happen in the village. That the only response by the appellant on these allegations was that the prosecution witnesses were lying against him. The appellant did not deny h aving gone to see the headman on the said date. Mrs. Weza went on to state that the appellant threatened to kill the deceased and subsequently, the deceased died. A day later, the appellant confessed to having murdered the deceased with a gun and led the mourners to the recovery of a gun. According to her, this was strong circumstantial evidence linking the appellant to the murder of the deceased. -J12- Counsel stated that it was odd that the four pellets removed from the deceased's body matched the size of the gun belonging to the appellant. The appellant was within the village where the deceased was shot dead and as such, he had an opportunity to commit the offence. She relied on the case of Mkandawire and Others v. The People f10J were it was held as follows: "Odd coincidences can, if unexplained, be supporling evidence." She was of the view that the only inference that could be drawn was that of guilt. In aid of this was the case of David Zulu v. The people. 111 She further argued that the appellant's contention that PW2 was a suspect witness because she hated the appellant and did not report him to the police for threatening the deceased was unfounded because PW2 was never questioned whether she hated the appellant. That the arguments advanced by the appellant that PW2 hated him because he was given the plough by his late father instead of her husband, was an afterthought. In this respect, reliance was made on the case of Donald Fumbelo v. The People t11J where it was held as follows: "In a case of a witness who is an accused person, it is indeed very important that he must cross - examine witnesses whose testimony contradicts his version on a particular issue. When an accused person raises his version for the first time only during his defence, it raises a very strong presumption that the version is an afterthought and therefore, less weight will be attached to such version." According to Mrs. Weza, it is normal practice in the village to report matters to the headman before involving the police. Going by the record, the appellant was once reported to the Headman Chilule regarding his threats to kill the appellant and after deliberations, the appellant and the deceased were commanded to raise the sum of Kl, 000. 00 for a witch finder. She argued that none of the prosecution witnesses had any motive to falsely implicate the appellant and as such, they were not suspect witnesses. We have taken into consideration the record of appeal and the heads of argument filed by both advocates. With respect to the first ground of appeal, the position we take is that there were a number of other reasonable inferences that could be drawn from the evidence led by the prosecution witnesses than that the appellant was guilty. We say so for the following reasons: .. Jl4- The lower court placed heavy reliance on the evidence of PW 1, PW2 and PW3. One can discern from the evidence of the three witnesses that the relationship between the deceased and the appellant was bad. This was contrary to the evidence of the appellant that he was on good terms with his brother. PWl and PW3 also stated that they were informed by the village headman that the appellant had a few days prior to the demise of the deceased told him that they should not be shocked by the events that would follow in the village. We hasten to state that this was inadmissible hearsay evidence and therefore unreliable. We are also of the view that other than the sentiments expressed by the appellant in 2016 when he accused the deceased of bewitching him, the record does not indicate exactly when the other threats to the deceased's life were made and therefore we cannot tell the proximity between the threats and the killing, except that the 2016 threats were made about two years before the killing and the period was too long to take the circumstantial evidence out of the realm of conjecture. PWl and PW2 were the deceased's daughter and wife respectively. However, the court misdirected itself by stating that they had -J15- interests of their own to serve and that their evidence therefore required corroboration because their evidence only required circumspection. The Judge in essence did warn himself of the dangers of false implication and that was proper and sufficient. The case of Chitalu Musonda v. The people '121 refers. The learned trial Judge had this to say about the alleged confession on J26: "The accused having denied that he made any confessions that he is the one who killed the deceased, there is nothing to discuss at law in respect of confession obtained under the circumstances the accused described.» Our understanding is that the lower court accepted the accused's evidence to the effect that the confession was obtained under duress and therefore the alleged confession h a d to be rejected. In the case of George Musongo v. The People supra, the Supreme Court expounded the principles of fair conduct underlying the Judges Rules. It is clear from that case that unfair or improper conduct by people who are not in authority can lead t o the exclusion of evidence of a confession in the discretion of the court. The Supreme Court held in the same case that: -J16- "In all cases, the issue must always be whether the accused was so unfairly or improperly treated in all the circumstances that the evidence ought to be rejected." We cannot temper with the finding of the lower court on the alleged confessions because that court had the opportunity to see the witnesses as they testified and to determine what weight to attach to their evidence which opportunity we do not have. Although the appellant was in the village at the material time, it was not ascertained whether he was anywhere near the place where the body was found. We are of the view that the appellant gave a reasonable explanation as to why the gun was kept hidden in the bush. A perusal of the Forensic Ballistic Examination Report shows that the home made gun was designed to chamber cartridges of caliber 18.5mm (12 bore) and that the four deformed pellets were components of a cartridge of 18.5 mm. It also states that, the deformed characteristic on the pellets indicates that they hit a hard target upon being fired at a terrific speed and as such, the diameter could not be determined. -J17- The position we take is that the report was not conclusive as to whether the pellets were fired from the appellant's gun. We find that the totality of the circumstantial evidence did not take the case out of the realm of conjecture and as such, the court should not have convicted the appellant. The first ground of appeal therefore succeeds. In arguing ground two, Counsel Mr. Mankinka submitted that the trial court should not have rejected the application by the defence to produce the written statements made to the police by one Phillip Simasikili who was called as PWS and Bathromel Jampota who was not called as a witness by the prosecution. Counsel relied on the case of Chiyovu Kasumu v. The People (i 3J where it was held as follows: "A previous statement may be introduced not only by the maker but also by the person to whom it was made." "In these circumstances, it was entirely proper for Mr. Kawanambulu to seek to introduce as an exhibit the previous statement made by PWl; this was not being done in order to challenge the evidence of PWS but simply in order to provide the basis for a challenge of the credibility of PWl." -J18- According to Counsel, Bartholomew Jampota's written statement was vital for the defence as it showed that he told the police that the appellant was pressured to confess. This is contrary to other witnesses who claimed that the appellant was not mistreated or forced to give the statement at all. Counsel went on to state that the reason why the defence sought to have the statement of Phillip Simasikili produced was to impugn his credibility. The defence also had a choice to call Bartholomew J ampota or to have his statement favourable to the appellant produced in evidence. Therefore, the court erred by refusing the defence application to produce ID4 and IDS. In countering ground two, Mrs. Weza submitted that the trial court was on firm ground when it refused t he application by the defence to tender ID4 and IDS in evidence through PW5 as there was no basis to produce them. Counsel conceded that the position in the Chiyovu Kasumu case l13J was sound but stated that the right procedure must be followed. She stated that in the Chiyovu case, the case of Simon Miyoba v. The People f14J was referred to, where guidance was given as to the procedure to be followed: "Counsel should first direct the witness' mind to the occasion when the previous statement was made and ask him whether on that occasion, he did not say so and so. If -J19- the witness agrees, the previous statement, either in question and answer form or at least in narrative, is then in or on the record. The witness may explain the discrepancy, and the explanation is a matter for the court to consider in assessing his credibility, or the court may regard the discrepancy as by comparison minor. II, on the other hand, the witness denies that he said what has been attributed to him (and it ts in these circumstances that the error is almost invariably made), counsel must then either read verbatim into the record the relevant portion of the previous statement or put the whole of it to the witness and apply to have it introduced through him as an exhibit; (in the unlikely event of the witness denying his signature or thumb print it will be necessary to introduce the statement by the evidence of the person to whom it was made, or in the case of a deposition in terms of the relevant section of the C. P. C.). Of these two methods probably the more satisfactory in most cases is the introduction of the whole deposition or statement as an exhibit; counsel will then be in a position to deal more expeditiously and neatly with the particular inconsistency alleged and, if they are thought to exist, others also. " Mrs. Weza's argument was that with respect to ID4 (statement of Phillip Simasikili) although he was called as a witness and shown parts of his statement, that statement was not marked for identification. It is not sufficient to show that the statement was made but to also show the basis upon which counsel intends to -J20- have s uch a statem ent admitted into eviden ce. As regards th e statement of Jampota, he was n ever called as a witness and a s such it wa s impossible to impu gn his credib ility. Cou nsel also argued that t he relevance of a document must be shown to the court before the documen t is tendered into evidence. In conclusion it was submitted that the lower court was on firm ground when it rejected the a pplication to admit b oth statemen ts. It was coun sel's position that the conviction was s afe and she urged us to uphold it and dismiss the appeal. We h ave considered the subm issions made on ground two by both counsel. Our views are as fallows: In the case of William Muzala Chipango and Others v. The People, f15l at page 4 48 the Supreme Court stated as follows: "It was submitted that this court had an inherent Jurisdiction to see that justice prevailed and that in the exceptional circumstances of this case we should regard ourselves as at liberty to look at the statements of the witnesses in question to ascertain whether or not evidence favourable to the appellants or unfavourable to the prosecution had not been presented to the trial court and which, if presented, might have affected the outcome. We cannot accede to this proposition. We have made it clear in a number of cases (see for instance, Mtyoba v. The People) that this court cannot and will not look at depositions on the statements supplied under the summary committal procedure or indeed any other statement alleged to have been made by a witness at some -J21- other time unless that statement has been properly introduced into the record. It would be improper and a dangerous precedent for this court to take into account anything which was not properly before the trial court as evidence." It follows th at wh ere the s tatement h as not been properly introduced into the record it is n ot part of the evidence on record b efore the court, and any u se of su ch statement as evidence would be s erious m isdirection. Both st atemen ts were n ot properly introduced and the lower court was on firm grou nd in refusing the a pplication t o a dmit them. We are fortified by the case of Simon Miyoba v. The People t1 4l supra where it was held fur t h er that: "Neither the depositions taken at a preliminary inquiry nor statements to the police, which in summary committal proceedings are furnished to the court and the defence, are formally before the court and the court is not entttled to have regard to the contents of such depositions or statements. " "Unless the previous statement has been made part of the record in one or other of the methods available, an .. J22- appellate court has no basis on which to assess how serious the alleged discrepancies are and what weight to attach to the evidence of the witness. ,, It follows that the secon d ground of appeal h a s n o merit and it is dismis sed . All in all, the appeal succeeds on the first ground of appeal. The conviction was not s afe and it is quashed. Th e appella nt is acquit ted and set free forthwith . k\-1 ~ \.'"- ~ .. .. .... ~ ........ . 7 . . ....... . C. K. MAKUNGU COURT OF APPEAL JUDGE . . . . D. . COURT . . .. DGE RL-D~ ......•..•...•........••••••........ P. C. M. NGULUBE COURT OF APPEAL JUDGE -J23-