Chisenga v People (Appeal 99 of 2017) [2018] ZMSC 600 (7 June 2018)

J1 Selected Judgment No. 17 of 2018 (667) IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APPEAL NO.99/2017 HN/33/2015 IN THE MATTER BETWEEN: ENERST CHISENGA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Hamaundu, Kaoma and Kajimanga, JJS On 10th April, 2018 and 7th June, 2018 For the Appellant : Mr A. Ngulube, Director of Legal Aid Board For the Respondent: Mrs M. K. Chitundu, Deputy Chief State Advocate JUDGMENT Hamaundu, JS delivered the Judgment of the court. Cases referred to: 1. Habeenzu v The People [2012] 3 ZR 327 2. Kombe v The People [2009] ZR 282 J 2 (668) 3. Katebe v The People [1975] ZR 13 4. Gift Mulonda v The People [2004] ZR 135 5. Phiri (Macheka) v The People [1973] ZR 6. Bento Sikazwe v The People - SCZ Appeal No.61/2009 7. Emmanuel Phiri v The People [1982] ZR 77 8. Nsofu v The People [1973] ZR 287 9. Ackson Zimba v The People [1980] ZR 259 10. Knight v R 50 Cr. App. Rep. 122 Legislation referred to: 1. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia, Sections 181 and 186 2. The Supreme Court Rules, Chapter 25 of the Laws of Zambia This appeal is against conviction and sentence. The appellant was charged with and convicted of the offence of defilement by the subordinate court of the first class at Mufulira. Upon committal to the High Court for sentence, he was sentenced to 30 years imprisonment with hard labour. The evidence adduced by the prosecution in the subordinate court was this: The victim, PW2, was the appellant’s step-daughter. On 31st January, 2011, during the night Doreen Mubanga, the victim’s mother, heard the victim scream. She went to the sitting room where the victim and her 7-year-old brother were sleeping to find out why the victim had screamed. The victim just said that she J 3 (669) would be better off dead. The following day the victim did not state why she had screamed. However, on the third day, the victim attempted to take her own life. She was rushed to hospital. It was there that she told hospital personnel that the reason why she had wanted to take her own life was because her step-father, the appellant, had defiled her. The matter was reported to the police. The victim was examined by a doctor who found that her hymen was absent, although he could not tell when it had broken. The appellant was apprehended and charged with defilement. With regard to the age of the victim, PW1, the mother stated that the victim was born on 11th April, 1994. The victim gave her date of birth as 11th May, 1994. In answer to a question by the court the victim maintained that she was born in 1994. In defence the appellant said that the victim was not below 16 years. He said that on 11th April, 2011 (a day that was yet to come) the victim would be turning 17 years old. In answer to a question by the court, he said that he had reduced the victims age when he J4 (670) enrolled her at school. He also said that the victim had been raped previously by some boy. This allegation was refuted by the appellant’s own witness, Tholani Phiri, a police officer who had dealt with the allegation. The police officer testified that the case was dropped because, upon examination, the victim was found to have had her hymen intact. This was in 2010. The appellant finally told the court that the victim was a problem child who merely wanted to falsely implicate him. The court found that the victim was actually aged 14 years old. To support that finding, the court relied on a purported report by a juvenile Inspector which based its finding on the register at the school where the victim was enrolled. We wish to point out here that the said report was not produced in the court below, and neither was the register of the school. No evidence was taken from the Juvenile Inspector to substantiate the report and avail himself for cross-examination by the defence. The court found also that the allegation that the victim was defiled was corroborated by medical evidence. As regards J 5 (671) corroboration for the identification of the appellant, the court observed that he was the only male adult in the house on that night and that there was no report that someone had broken into and entered the house. The court also found corroboration in the fact that there was no reason for the victim to falsely implicate her step­ father. When the matter went for sentence, the High Court took a very dim view of the appellant’s conduct, pointing out that the victim was as good as his daughter. Observing that defilement cases were not abating, the High Court decided to mete out a sentence that it hoped would be a deterrent. Hence it sentenced the appellant to 30 years imprisonment with hard labour. When the matter came up for hearing, the appellant had not yet filed his grounds of appeal and heads of argument as required by the rules. We granted the appellant leave to file his grounds of appeal and heads of argument out of time. He filed only the heads of argument; and slotted therein one ground of appeal. This was contrary to the provisions of Rule 25 of the Supreme Court Rules contained in the Supreme Court of Zambia Act, Chapter 25 of the J 6 (672) Laws of Zambia. However, we have decided to use our discretion under Rule 34 in the interest of doing substantial justice and shall proceed to determine the appeal on the merits. The sole ground of appeal advanced by the appellant states: “The trial court erred both in law and in fact when it convicted the appellant on a charge of defilement as there was no legal basis and/or factual basis to sustain the conviction.” On behalf of the appellant Mr Ngulube, the learned Director of Legal Aid, argued the appeal on two issues. The first issue was that the trial court’s finding that the victim was aged 14 years was flawed. Learned counsel argued that the finding was not supported by any reasoning. He submitted that in this case there was the evidence of the mother on one hand and the information in a school register which gave a date of birth different from that given by the victim’s mother. He argued that proof of age is given by either what the parent says or by a record such as a birth record card, birth certificate or an under-five clinic record card. Counsel argued that a school register cannot be used to refute what the mother of the child has said J 7 (673) because some people give incorrect ages for the purpose of securing a place at a school. Flowing from the above argument, learned counsel submitted that should we agree with the argument then we must bear in mind that we cannot find the appellant guilty of the alternative offence of rape because neither of them is lesser than the other. We were referred to the case of Habeenzu v The People*11 in support of that argument. He went on to argue that there can only be an alternative conviction for a minor offence. He was quick, however, to argue that in this particular case there was no evidence to support a conviction for rape or indecent assault or other minor offence. That submission by counsel led to the second issue raised. On the second issue, the main argument by learned counsel was that the victim’s story was a concoction. He argued that there were a number of omissions that were odd in the victim’s conduct. He pointed out, for example, that the victim did not shout when she felt a man on top of her. He also pointed out that the victim did not immediately say that the appellant had defiled her. J 8 (674) On identification, counsel pointed out that there was no light in the room to enable the victim to identify the appellant; and that her evidence that there was moonlight was merely a ploy to fortify her purported identification. Counsel noted also that although the victim testified that her underwear was soiled, the same were not handed over to the police. Turning to the medical evidence, counsel argued that while the medical doctor who examined the victim came to the conclusion that she was no longer a virgin, he could not tell when the hymen was penetrated. He argued further that, in any case, in view of the allegation that the sex was forced, there should have been injuries and yet the medical examination did not reveal such injuries. With those observations counsel argued that the story of a sexual encounter on the material night was unsupported and that, consequently, the finding by the trial court that there was corroboration was unsound. We were then referred to our decision in Kombe v The People’2’ where we said that now there need not be a technical approach to J 9 (675) corroboration; and, that the evidence providing corroboration need not be conclusive in itself. Counsel submitted that in this case there was nothing in the form of “something more” that could have provided corroboration instead, there was evidence that the victim was a problem child whom the appellant was trying to put in line; and that this was sufficient motive for the victim to implicate the appellant. According to counsel, the trial court failed to address itself on that danger. In support of that submission we were referred to the case of Katebe v The People’3’. Counsel also pointed to the conflicting dates given by the prosecution witnesses regarding the dates on which the events occurred and argued that those were symptoms of a fabricated story. On those arguments we were urged to find that the conviction for defilement was flawed and that there was no evidence to secure a conviction for the minor offence of indecent assault: The consequence being that the appellant should be set at liberty. In response, Mrs Chitundu, the learned Deputy Chief State Advocate conceded that, on the evidence that was before the trial J 10 (676) court, the victim was above the age of 16 years at the time; and that the trial court did not address the evidence before it correctly. We were referred to the cases of Gift Mulonda v The People’4’ and Phiri (Macheka) v The People’5’ where we gave guidance regarding proof of age. Coming to the arguments as to the alternative verdict, learned counsel argued that Section 186 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia makes it very clear that a person charged with one sexual offence can be convicted of another sexual offence; and that the alternative offence need not be a minor one. We were referred to the case of Bento Sikazwe v The People’6’ as support for the argument. Responding to the appellant’s arguments on corroboration, counsel argued that there was sufficient corroboration of both the identity of the appellant as the perpetrator and the commission of the offence in this case. It was argued that there was the “something more” which satisfied our decision in the case of Emmanuel Phiri v The People*7’. Counsel submitted that corroboration was provided by J11 (677) the following circumstances; the appellant was the only elderly male person in the house and there was no evidence that the house had been broken into. According to counsel, the evidence showed that the appellant had opportunity to commit the offence. Counsel referred us to the case of Nsofu v The People’8’ and argued that the nature of the opportunity in this case provided further corroboration as to the appellant’s identity. We were urged to substitute a conviction for the offence of rape in place of that of defilement. We do not hesitate to find merit in the appellant’s argument that the trial court’s finding that the victim’s age was 14 years was wrong. We have already observed above that the trial court placed reliance on material which was not formally placed on record at all. Otherwise, on the evidence on record, the trial court had no reason to dispute the evidence of the victim’s mother on the age of the victim. Accordingly, we set aside the trial court’s finding on the age and substitute a finding that the victim was above the age of 16 years. J 12 (678) Coming to the alternative verdict, we wish to say that in the case of Habeenzu(1) which the appellant relies on, we were dealing with the provisions of Section 181 of the Criminal Procedure Code which empower a court to convict on minor offences that have been proved although an accused person may not have been charged with them. We did not deal with Section 186 of the Criminal Procedure Code, which deals specifically with sexual offences, at all. In Bento Sikazwe v The People*6’, referred to us by the State, we dealt with and approved of a conviction of indecent assault in place of the offence of rape that was charged. The question in this case, however, is whether a conviction for the offence of rape can be substituted for a conviction for the offence of defilement. The appellant has argued that the substitution is not permitted because both offences are of the same weight, that is that neither is minor to the other. The State have argued that the substitution is permissible because under Section 186 of the Criminal Procedure Code a conviction for any sexual offence can be substituted for any other sexual offence. J 13 (679) The argument by the appellant is flawed to the extent that it places emphasis on whether or not one offence is minor to the other. Section 186 of the Criminal Procedure Code permits a court to convict for the offence of defilement even though the charge is for the offence of rape. Yet the two offences carry the same sentence and are, therefore, of the same weight. Section 186(1) provides: “When a person is charged with rape and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of sections one hundred and thirty-seven, one hundred and thirty-eight, one hundred and fourty-one and one hundred and fifty-nine of the Penal Code, he may be convicted of that offence although he was not charged with it.” Section one hundred and thirty-eight of the Penal Code creates the offence of defilement. The argument by the State is also flawed in so far as it proposes that convictions in sexual offences are interchangeable. While Section 186(1) provides for a conviction for defilement on a charge of rape, it does not state that the position is applicable vice-versa. But the Section goes on to specifically provide J 14 (680) in sub-section (3) as follows: “When a person is charged with defilement of a girl under the age of sixteen years and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under sub-section (1) or (3) of Section One hundred and thirty-seven of the Penal Code, he may be convicted of that offence although he was not charged with it” Section one hundred and thirty-seven of the Penal Code creates the offence of indecent assault. Sub-section (2) of section 186, for its part, provides that where a person is charged with incest under Section 159 of the Penal Code and the court is of the opinion that he is not guilt of incest but of either defilement generally under Section 138 of the Penal Code or defilement of an imbecile under Section 139 of the Penal Code, he may be convicted of that offence although he was not charged with it. It is clear, therefore, that Section 186 does not provide for a general interchange of convictions in sexual offences. It gives specific instances of the type of offences for which convictions can be substituted in each particular offence. In this case no provision has J 15 (681) been made for the substitution of a conviction for rape in place of a conviction for defilement. So, in this particular case, the conviction for defilement cannot be replaced by a conviction for rape. In this regard there is also merit in the appellant’s argument that the conviction for defilement can only be replaced by a conviction for a minor offence. We shall return to this point after we have dealt with the argument concerning corroboration. Coming to the argument regarding corroboration, we wish to state that in Kombe v The People*2’ one of our holdings was that corroboration is independent evidence which tends to confirm that the witness is telling the truth when he or she says that the offence was committed and that it was the accused who committed it. In this case the trial court took into account odd coincidences such as that the appellant was the only male adult in the house; and that there was no evidence that the house was broken into. Of course, the appellant argues that he was merely falsely implicated by the victim who had a motive to do so. In this case however, there is the further evidence of the victim’s re-action to the defilement. The evidence was J 16 that the victim was so indignant at what had happened that she (682) attempted to take her own life. In Ackson Zimba v The People’9’, we said that on the authority of Knight v R,10) the distress of the complainant can be regarded as corroboration. We hastened, however, to advise a trial court to warn itself that the evidence of distress may be simulated. In this case, we find the step that the victim took to express her indignation to be very severe. We do not think that a complainant who merely seeks to falsely implicate a person would go to such lengths. We are satisfied that the victim’s reaction to her indignation provided further corroboration to her testimony that the appellant had defiled her. We, therefore, find no merit in the argument on corroboration. We now come back to the issue of the alternative verdict. Indeed, we have found that, on the evidence on record, the victim was above the age of 16 years. Therefore, the conviction for defilement was wrong. The charge should have been for rape; or at least, at case to answer stage, the trial court should have substituted the charge of rape for that of defilement. We have also found that under the J 17 (683) provisions of the Criminal Procedure Code a conviction for rape cannot be substituted for a conviction for defilement. To this extent we allow the appeal. We have, however, shown that under Section 186(3) of the Criminal Procedure Code the court may, on a charge of defilement, convict for indecent assault. That is the route we now take. We hereby quash the conviction for defilement. In substitution therefor, we impose a conviction for indecent assault. It goes without saying that the sentence will have to be interfered with since the maximum sentence for indecent assault is less than the sentence that was meted out to the appellant. We hereby quash the sentence of 30 years imprisonment with hard labour. In arriving at a substitute sentence, we have taken into account the fact that this is not a typical case of indecent assault. The facts which were proved reveal a much more serious offence. The offence has been reduced to one of indecent assault merely on a legal technicality. For these reasons we have decided to impose the J 18 (684) maximum sentence provided by the law for the offence of indecent assault. In place of the sentence of 30 years imprisonment, we hereby impose a sentence of 20 years imprisonment with hard labour. E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE C. Kajimanga SUPREME COURT JUDGE