Emphraim Mulambya v The People (Appeal No. 74/2001) [2002] ZMSC 164 (16 April 2002)

IN THE SUPREME COURT OF ZAMBIA -APPEAL NO. 74/2001 HOLDEN AT LUSAKA [CRIMINAL JURISDICTION] BETWEEN: EMPHRAIM MUI. AMBYA APPELLANT AND THE PEOPLE RESPONDENT CORAM: CHIRWA, JS; CHIBESAKUNDA JS, AND MAMBILIMA JS on the 16th October, 2001 and 16t h April 2002. For the Appellant: Mr. A. C. Nkausu, Legal Aid Counsel. For the Respondent: Mr. C. F. R. Mchenga, Principal State Advocate. JUDGMENT MAMBILIMA, JS, delivered the Judgment of the Court. Cases referred to: (1) R vs Baskerville [1916] KB 658 at 667. (2) Nsofu vs The People [1973) ZR 287. (3) Bernard Chisha vs The People [1980] 36 (4) Penias Tembo vs The People [1980) ZR 218 Legislation referred to: (1) The Juveniles Act, Chapter 53 of the Laws of Zambia. The Appellant was convicted in the Court below of one count of murder contrary to Section 200 of the Penal Code and sentenced to death. The particulars of the offence were that the Appellant, on the 15th day of August, 1998, at Lusaka, jointly and whilst acting together with others unknown, did murder one, Abel Chibinga. The evidence, which was adduced by the prosecution before the lower court, was that the deceased used to reside in Kanyama. On 15th August, 1998, the deceased, in the company of his 15 year old son (PW1), went to check for his daughter at the Ambassador Funeral Parlour but did not find her. On their way back home around 21.30 hours, they met a group of six men near a bar called Sandula in Kanyama. Five of these men stood in front while the sixth hid behind a shrub. This man came from behind and hit the deceased with a stone on the right side of his face. The deceased fell to the ground. PW1 testified that he recognized the man who hit his father. According to PW1, he used to see him at Kanyama bus stop because he worked as a mini bus conductor. PWl told the Court that he had a good opportunity to look at the man because the area where the incident happened was well lit with lights from the bar and security lights from the houses facing the road. When his father fell to the ground, PWl took to his heels as one of the assailants said "let us check for some money" and went to call for help. He returned to the scene in the company of two other people and they found the deceased still lying on the ground and unable to talk. They took him home and the following day conveyed him to the University Teaching Hospital where he died after a few days. The matter was reported to the Police where PW3, detective Constable Chrispin Maselino was assigned to investigate the case. He interviewed PW1 who told him that he was able to identify one of the assailants whose name he did not know but that he was a minibus conductor. PWl led him and other Police Officers to Kanyama bus stop and there he pointed at the Appellant who was in a minibus. PW3, together with other Police Officers boarded the bus and ordered the driver to proceed to the Police Station where the Appellant was apprehended. Upon being interviewed in connection with the offence, the Appellant denied the charge and stated that on the night of the crime, he was drinking Chibuku within Kanyama compound. PW3 investigated this report and found it to be false. He visited the scene of crime first during the day and later at night. This was to ascertain the visibility. When he visited the scene of crime at night, he found that it was well lit in that a nearby grocery had a fluorescent tube light while there was another big house which had light bulbs all round it. He also found some short shrubs along the road, some tins and a tree of about three meters in height. Other nearby houses also had some security lights. PW3 then made up his mind to arrest the Appellant for the subject offence. The Appellant upon being put on his defence denied the charge. His story was that he was a minibus conductor who operated at Kanya ma bus stop and town centre. On 21st August, 1998, while performing his duties as a minibus conductor, he was coming from town to Kanyama. At a bus Stop in Kanyama, three Police Officered boarded his bus. After the last bus stop, they ordered the driver to drive to the Police Station where he was charged with the offence of murdering the deceased. In denying the offence, the Appellant testified that he told the Police Officer that on the date when the offence was committed, he was at home with his wife after having knocked off around 1930 hours. He denied knowing PWl. In his testimony to the Court, the Appellant testified that 15th August 1998 was a Sunday and he did not go for work. He went on to state that from 1800 hours on this day up to 0600 hours the next day he was at home and did not go anywhere. According to the Appellant, on the previous day, which was a Saturday he had been at work from 04.00 hours until 19.30 hours when he went to his home. The Appellant called his wife as his witness. She testified that on 15th August, 1998, the Appellant was with her at home because their child was unwell. According to her, he reported for work the following morning. In evaluating the evidence which was before him, the learned trial Judge found that the only eye witness to the crime was PWl who is a son of the deceased and was at the time aged 15. This witness gave evidence on oath after a voire die. The trial Judge visited the scene of crime. He found that PWl gave a vivid and correct description of the scene where the crime was committed and the exact role played by the Appellant which is that he struck the deceased with a stone on his right side of the head near the face. The Judge found that PWl's evidence, to the effect that there was sufficient light at the scene to enable him recognize the Appellant even before he struck the deceased, was reliable. The scene was on a gravel road near a junction boarded with two buildings, one of which was Sandula bar. The bar had electricity bulbs which were visible from the road. There were scanty trees and short cactus shrubs through which one could see the surrounding dwelling houses and the two structures. The learned trial Judge concluded that if all the bulbs and fluorescent tubes were lit at night, visibility would be so good as to enable ~ne to recognize objects. He was satisfied that PWl had ample opportunity to observe. In considering whether PW1's evidence of identification was of good quality, the Judge found that PWl's evidence of identification was supported firstly by the independent medical evidence as contained in the post-mortem report. PWl had stated in his evidence that his father was hit with a stone to the right side of his head near the face. The post-mortem report revealed that the deceased had stitched incision approximately 10cm long on the right parietal region and his skull was damaged on the same area. The trial Judge found, secondly, that PW1 had told the court that he used to see the Appellant operating as a mini bus conductor at Kanyama bus stop before the incident. The Appellant's testimony was that he was a bus conductor who used to operate at Kanyama bus stop and town center. This was confirmed by the Appellant's wife. Thirdly, the trial Judge found that PWl gave his evidence in a very composed state and never hesitated in his answers when he was being examined by Counsel. He concluded from the manner PW1 gave the evidence and the nature of the evidence which he gave that PWl was a truthful and reliable witness. He found as a fact that it was the Appellant who struck the deceased with the fatal blow on the night of 15th August, 1998 from which the deceased died five days later at the University Teaching Hospital and convicted him of the offence of murder. After finding that the deceased was brutally assaulted without any provocation but in a bid to steal his money, the Judge found no extenuating circumstances and imposed the sentence of death. Before us, the Appellant has advanced one ground of appeal, which is that the learned trial Judge erred in law and in fact when he convicted the Appellant on a charge of murder on the uncorroborated evidence of a 15 year old boy. In his heads of argument, Mr. Nkausu, for the Appellant pointed out that the learned trial Judge treated the evidence in the Pathologist's report as being corroborative of the child's evidence. He has referred us to the Judgment of Lord Reading in the case of R vs Baskerville (1) in which he defined corroborative evidence as ".... Independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it may be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime was committed, but also that the Prisoner committed it." Mr. Nkausu has also referred us to our decisions in various cases including Nsofu vs The People (2) in which we held that " ... for evidence to be corroborative as a matter of law it must not only tend to confirm that the offence had been committed, but must tend to confirm that it was the accused who committed it." Mr. Nkausu submits, on the strength of these . authorities that the Pathologist report which was admitted in evidence confirmed that the offence was committed but did not confirm that it was the Appellant who committed it. He states further that there were other leads which were not investigated which would have thrown some light as to who assaulted the deceased. Relying on our decisions in Bernard Chisha vs The People (3) and Penias Tembo vs The People ( 4), Mr. Nkausu submits that the evidence of PW1, who is a child needed to be corroborated and there is no such corroboration. Mr. Mchenga for the state supported conviction. He submitted that had the witness been a child of tender age, corroboration would have been needed. He went on to state that the trial Judge correctly treated the evidence of PWl. He exercised extreme caution when receiving it and found the Appellant to have been correctly identified. An honest but mistaken identity was ruled out. We have carefully and anxiously considered the evidence which was before the lower Court and the submission by the Counsels before us. The Juveniles Act, (1) in section 2(1) defines a child as a person who has not yet attained the age of 16. The evidence on record is that PW1, was aged 15. The trial Judge allowed him to testify on oath after conducting a voire dire. As a matter of practice, the sworn evidence of a child requires corroboration. The position at law is as was stated by Silungwe Chief Justice, as he then was in the case of Bernard Chisha vs The People (3), when he said: ''It is well-established that as a matter of law, the sworn evidence of a child, in criminal cases, does not require corroboration, but that the Court should warn itself that there is a risk in acting on the uncorroborated evidence of young boys and girls; ...... As it is necessary to heed the warning, corroboration of the sworn evidence of a child is, in practice usually looked for. There need not be a technical approach to corroboration: evidence of 'something more' suffices." As properly observed by Mr. Mchenga, the witness in this case was not a child of tender years, but a boy aged 15. The Judgment of the Court below shows that the Judge was alive to the requirement that he should treat the evidence of PW1 with caution. He observed in his Judgment that this evidence, if not corroborated should at least be supported by some other evidence. He found after visiting the scene of crime that PWl had correctly described it. The lighting on the adjacent building was such that PW1 had a good opportunity to observe what happened that night. The Judge also found that the Pathologist's report supported PWl's evidence that the deceased was hit on the right side of his face; and that PWl' knew the Appellant before the incident. He described him as a mini bus conductor who operated from Kanyama Bus Stop. The Appellant in his evidence described himself as a minibus conductor who operated from Kanyama bus stop and town center and this was confirmed by his wife. The trial Judge was also satisfied with the demeanor of PWl. It is on record that PWl struck him as a truthful and reliable witness who did not hesitate to answer questions put to him. The evidence of PW1 who was not a child of tender years, was very congent and was ably supported by the other evidence before the Court. From the foregoing, we are unable to fault the Judge in the way he treated the evidence of PW!. Consequently, this appeal is dismissed. On sentence, we find that the trial Judge properly found that there were no extenuating circumstances. The brutal assault was committed in the course of trying to steal from the deceased. There is no evidence of provocation, drunkenness or mental incapacity. The appeal against sentence also stands dismissed. ___________ a ________________ _ D. C. K. Chirwa SUPREME COURT JUDGE ------------~~ . --------------- L. P. Chibesakunda SUPREME COURT JUDGE ------ 0 ------------~-----=-~--- I. C. M. Mambilima SUPREME COURT JUDGE 12