Eugene Haminda v The People (Appeal · No 45/2021) [2022] ZMCA 120 (24 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Cr i mina l J u risdic ti on ) Appeal · No 45/2021 BETWEEN: EUGENE HAMINDA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Sichinga and Muzenga JJA On 18 th January 2022 and 24 th August 2022 For the Appellant : K . C . Bwalya, Legal Aid Counsel, Legal Aid Board For the Respondent : M. Tembo-Wedza , Acting Deputy Chief State Advocate, National Prosecution Authority ( JUDGMENT Mchenga DJP , delivered the judgment of the court. CASES REFERRED TO: 1 . Lumangwe Wakilaba v . Th e People [1974] Z. R. 7 4 2 . Harnmfuti v . The People [1972 ] Z. R. 2 40 3 . Nal umi no v . The People [1 986 ] Z. R. 106 4 . Zeka Chinyama and Others v . The People [1977] Z . R. 42 6 5 . Chiles h e v . The People [ 197 2 ] Z . R . 48. J2 6 - Kangachepe Mbao Zondo and Others v. The Queen [1963- 64 ] Z. and N. R. L. R 97 7 . Kalebu Banda v. The People [1977] Z. R. 169 8 . Peter Yotamu Hamenda v. The People [ 1977) Z. R. 184 9. David Zulu v. The People [1977) Z. R. 151 10. Saidi Banda v The Pe ople SCZ Appea l No. 114 of 2 015 11 . Machipisha Kombe v . The People [2009 ] Z. R. 282 LEGISLATION REFERRED TO: 1 . The Pe n a l Cod e , Cha pte r 87 o f the laws of Zambia 1. INTRODUCTION ( 1.1 . The appellan t a ppeared before the High Court ( Dr . Mwenda , J . ) , fa cing two counts of the o ffence o f murde r co n trar y to section 200 of The Penal Code. The allega tion was that on 6 t h August 20 17, in Lusaka, he mu r d ered Showi Lungu and Jack Siwo. 1.2 . He d e nied b o th c harg e s and the case proceeded to trial . J3 1.3. At the end of the trial, he was convicted for committing both offences, and condemned to suffer capital punishment. 1.4. He has appealed against his convictions. 2. CASE BEFORE THE TRIAL COURT 2.1. The prosecution evidence before the trial court was that on 16th August 2017, around midday, Brenda Matafwali was at home in Lusaka's John Laing Compound. The house where she l ived, was ve ry close to or neighbouring , the appe l lant's house . 2.2. Around 13 : 00 hours , she saw Showi Lungu and Jack Siwo , young boys who u sed to live with the appellant, heading home sayi ng that he had called them. Not long thereafter , she heard the two boys~ crying and sounds like they were being beaten . 2.3. She h eard a bang a nd one of the boys say "daddy you have killed me n. She then heard the same voice say "daddy you will kill me the way you have killed Jacku . She also heard the appellant, whose voice she wa s familiar with, ask th e boy if he was going to ' J4 reveal what had happened and the boy said he was not going to do so. 2.4. Around 15: 00 hours, the appellant knocked on Regina Nampasa' s door. She was his landlady. He informed her that he had beaten the two boys because they had stolen Kl00. He then left. 2.5. The appellant then approached Likulamo Likulamo, a friend, who also lived in the neighbourhood, and informed him that the boys had been electrocuted. Together they went to Chibolya Community Police Post , where the incident was reported. ( 2.6. They found Constable Chi temfuma at the front desk . The appel lant told him that he had whipped the boys after t h e y failed to explain what had become of the Kl00 tithe money he had given them. He to ld him that at some point, he went outside to get another whip and when he returned, he found that the boys had been e lectrocuted. 2. 7. The appellant th en led police officers to his house . They observed naked e le ctrical cables but JS decided to arrest the appellant for the of f ences of murder, when they noticed bruises on the boys bodies. ( .i 2.8. On 10 th August 20 17, Dr. Viktor Telen diy, a forensic patho l ogist , conducted a post-mortem examination on the bodies of the two boys . He found that Showi Lungu died after suffering blunt f orce hei:id inJury . He had also suffered multipl e blunt force injuries to his body. 2.9. In the case of Jack Siwo , he similarly found that he died due to blunt force head injury. He had also suffered multiple blunt force injuries to his body. 2.10. In his defence , the appellant denied assaulting the two boys . He said h e went to church on that day and on his return home , h e fou nd the children l ying on top of each other , ,near the stove. When he realised that they were dead, he.reported the matter to the police . 3. FINDINGS BY THE TRIAL JUDGE J6 3.1. The trial judge found that although there was no direct evidence , that the appellant caused the death of the two boys , he was incriminated by circums tantial evidence. 3 . 2. Brenda Matafawali had heard Showi Lungu telling the appellant that he would kill him the same way h e had killed Jack Siwo. She fou nd that Showi Lungu's statement was admissible in evidence as r e s gestae. 3. 3. She also found t hat the post -mortem findings that the boys died from trauma to the head, ruled ( out the possibility t hat they had been electrocuted. 3.4. Further , the trial judge found that the appellant was i n c riminated by his statements that he had beaten the boys . 4. GROUNDS OF APPEAL 4.1. Three grounds have been advanced in support of the appeal . 4 . 2. The first ground of appeal is that the trial judge erred in law and fact , when she allowed the J7 appellant ' s confession statement to be admitted into evidence without conducting a trial-within-a-tria l . 4.3 . The second ground of appeal, is that the trial ( __ ' judge erred in law and fact, when she convicted the appellant without due and proper investigations being carried out by the arresting officer . 4 . 4. The third ground of appeal is that the trial judge erred in law and fact , when she convicted the appellant on circumstantial evidence that did not take the case out of the realm of conjecture 5 . AUGMENTS IN SUPPORT OF THE 1 st GROUND OF APPEAL ( 5.1 . In support of the first ground of appeal , Mrs. Bwalya referr ed to t he cases of Lumangwe Wakilaba v The People 1 and Hamfuti v The People2 and submitted that even though there was no objection by the defence , the trial judge should not have allowed the appellant's confession to Constable Chitemfuma , that he had whipped the boys , to be produced into evidence . J8 G · RESPONDENT'S RESPONSE TO THE 1 st GROUND OF APPEAL 6.1. Mrs . Tembo-Wedza conceded that the appellant ' s confession should not have been admitted into evidence. She referred to the case of Charles Nalumino v The People 3 , in support of her position. 7. COURTS DECISION ON THE 1 st GROUND OF APPEAL 7.1. The law is settled, and there is a plethora of authorities that whenever a police officer or law enforcement officer , l S about to testify on incriminating evidence given by an accused person , such evidence should not be received without ( enquiring from the defence , whether they object to its produ ct ion or not . 7.2. Further , as indicated by both counsel , decided cases , which include the cases of Lumangwe Wakilaba v The People1 , Hamfuti v The People2 and Charles Nalumino v The People 3 , direct that where t here i s an objection to the production of incr iminating evidence on the ground that it was not obtained Jg freely and voluntarily, a trial-within-a-trial should be conducted to resolve the issue. 7.3. In the case of Zeka Chinyama and Others v. The People4 , the Supreme Court held as follows, on the admission of confession statements: (i) When dealing with an objection to the admission of an alleged confession the trial court must first satisfy itself that i t was freely and voluntarily made; if so satisfied, the court in a proper case must then consider whether the confession should in the exercise of its discretion be excluded, notwithstanding that i t was voluntary and therefore strictly speaking admissible, on the ground that in all the circumstances the strict application of the rules as to admissibility would operate unfairly against the accused. (ii) The court is not required in every case to make a decision whether or not in the exercise of its discretion to exclude a confession; where every circumstance which might conceivably be regarded as indicating unfairness has been considered in the very decision that the confession was voluntary the question of the exercise of the court's discretion does not arise. (iii) The question of the discretion to exclude a confession made to a police officer falls to be considered when such confession has been held to have been voluntarily made, but there has been a breach of the Judges' Rules or other unfair conduct surrounding ( JlO the making of the confession, either on the part of a police officer or of some other person, which might indicate to a judge that there is danger of unfairness . (iv) The circumstances in which the reception of evidence would operate unfairly against an accused will depend on the facts of the particular case and do not lend themselves to precise definition . The discretion ought to be exercised in favour of the accused where, but for the unfair or improper conduct complained of, the accused might not voluntarily have provided the evidence in question or the opportunity to obtain it . 7.4. In the cases we have ju s t s e t o ut, t h e te rm "confession" relates to incriminat i n g evidence give n by an accused person d u r ing the cou r s e of ( interrogations by a person wh ose ordinary course of work involves investi gations . 7.5 . To a large extent , the conduct of a tr i a l-with in - a-trial , considers whether the Judge ' s Rules were complied with when the suspect wa s be ing interrogated. 7. 6. In the case of Chileshe v. The People5 , it was pointed out that under the pre-1964 Judges ' Rules , which are applicable in Zambia , Rule number 3 requires that a person who is in custody , whether h e Jll has been d c arge h or not, must be "warned and cautioned" , that whatever he says may be used against him in court , before any interrog ation takes place. 7. 7. Further, in the case of Kangachepe Mbao Zondo and Others v. The Queen6 , the Court of Appeal of Zambia, the forerunner of the Supreme Court , said the followin g o n when a person is deemed to be custody : "Rule 3 of the Judges' Rules provides that persons in custody should not be questioned without the usual caution being administered . In explanation of their ( rules, the judges further advised that prima facie the expression " persons in custody " in rule 3 applies to persons arrested before they are confined in a police station or prison, but the rule applies equally to prisoners in the custody of a warder. The terms" persons in custody II and II prisoners II are therefore synonymous for the purposes of this rule . The first question, therefore, is whether the appellant was in custody when he was being questioned at the temporary police camp and at Fort Jameson police station prior to his being arrested on 18th January." 7. 8. From the foregoing , we surmise that the mandatory requirement t o "warn and caution" a J12 person, only arises when that person is in custody or at a point where a police officer questioning such a person, believes or concludes that he is a suspect . 7. 9 . The issue for determination in this case, is whether the incriminating statement the appellant gave to Constable Chitemfuma could have been subject to the Judge ' s Rules. Should the trial judge have asked the defence on whether they had any objection to its production, and if yes , should a trial within-a-trial have been held to determine its ( admissibility? 7 . 10. In this case , the evidence of Constable Chitemfuma and Likulamo Likulamo , was that the app e llant turned up at the police station , on his own , to make a report. At the time he was giving the incriminating evidence , he was not in police custody nor a suspect. ( ( J13 7 .11. Constable Chitemfuma's evidence is that it was only after he had seen the bodies of the two boys that he decided to arrest him . 7 .12. It is our view that there was no need for the trial judge to find out whether there was any objection to the incriminating evidence that the appellant gave to Constable Chitemfuma , before receiving it. That incriminat i ng evidence was not subject to the Judge ' s Rules as the appel l ant was neither a suspect nor a person in police custody. 7.13. The c ase would have been different had the incrimina ti ng statement been given after Constabl e Chitemfuma had decided to arrest him. At that point he was a suspect and was in police cus tody, whatever questioning that would have followed, would have required to have been under " warn a nd caution" . 7 .14. We note that in his defence , t h e appellant denied making the incriminating statement . The question whether the appellant made the statement or not , was correctly dealt with as a general issue , t h at is , J14 the trial judge deciding which one of the two positions was credible to her. 7.15. Notwithstanding that there was no requirement to ( ,. hold a trial-within-a-trial, it was within the trial judge's discretion to exclude the inc riminating statement if she found that its admission would operate unfairly against the appellant. 7.16 . We have examined the circumstances in which the incriminating evidence was given to the police, and we find no basis on which the trial judge could have excluded it on the ground that its reception would ( have operated unfairly against the appellant. 7.17. We find no merit in the first ground of appeal and we dismiss it . 8 . AUGMENTS IN SUPPORT OF THE 2 nd GROUND OF APPEAL 8 .1. In support of the second ground of appeal, Mrs . Bwalya referred cases of Kalebu Banda v The People7 and Peter Yotamu Hamenda v The People 8 , and submitted that the conviction be set aside because no proper investigations were carried out . JlS 8. 2. She argued that there was dereliction of duty when the police failed to involve an expert to investigate the appellant's allegation that the boys where electrocuted or to call an expert to give evidence on the issue. 9. ARGUMENTS AGAINST THE. 2 nd GROUND OF APPEAL 9.1. In response to the second ground of appeal, Mrs . Tembo-Wedza submitted that there was no dereliction of duty because the cause of death was known. She argued that involvemen t of an expert would have made no difference , given that the forensic pathologist ( found that they had bot h died from blunt force trauma to their heads . 10. COURTS DECISION ON THE 2 nd GROUND OF APPEAL 10.1. In the case of Peter Yotamu Hamenda v The People8 it was held , i n ter alia , that : "Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the Investigating Agency fails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been \ J16 favourable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result ; in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the derelictions of duty." 10. 2. Or di n arily , the appellan t' s c laim ·t h at the c h ildren had been electrocu ted warranted investigation . However , in the circumstances of th i s case , we agre e with Mrs . Tembo - Wedza that the f ai lu re to inve s t igat e did no t prejudice the a ppellant in anywa y . 10 . 3 . The medical evi de n c e , from the f orensic ( pathologist , conc lu s ive ly p r oved that t he boys di e d from being assaulted . 10. 4. Con sequently , we fin d n o me rit i n the se cond grou nd of appeal an d we dis mi ss i t. 11. AUGMENTS IN SUPPORT OF THE 3 r d GROUND OF APPEAL 11 . 1. Mrs . Bwalya ' s s ubm iss i o n , in suppo rt of t he t hi r d g round of a p peal , was th at a n in fere nc e that t h e a ppel l a n t mu r d ered t h e t wo b oys is n ot t h e onl y inference t h at co ul d h a v e drawn o n t h e evidence th a t was before the tr i a l jud g e . Sh e referred to t h e cases '\ ( ' . J17 of David Zulu v The People 9 and Saidi Banda v The People1 0 and argued that since many other inferences could have been drawn , a verdict of not guilty should have been entered by the trial judge . 11. 2 . She pointed out that it is possible that the boys were actually electrocuted . She also argued that Brenda Matafwali was not a credibl e witness . She was untruthful because she did not immediately report what she heard to anyone and i t is possible that she was mistake n of the voices she heard. 12. ARGUMENTS AGAINST THE 3 rd GROUND OF APPEAL C 1 2 . 1. Mrs . Tembo- Wedza 's res ponse to the third ground of appeal , was that the only inference that could have b een drawn on the eviden ce that was before the trial judge , was that the appellant murdered the boys. 12.2. The circumstantial evidence wa s overwhelming a nd st rong, it connected t h e appel lant to the death of the boys . \ J18 12 . 3 . She also referred to the case of Machipisha Kombe v The People1 0 a n d submitted that there where odd co i ncidences that incri minated the appellant. An examp l e being Brenda Matafwali ' s testimony that she heard the boys crying and say that the appellant would kill them was supported by the post-mortem reports . 13 . COURTS DECISION ON THE 3 rd GROUND OF APPEAL 13 . 1 . The starting point , is the eviden ce of Brenda Matafwali , which has been labelled as lacking credibility because she delayed reporting her claim ( that she had heard the appellant beat i ng the boys ·. 13.2 . We do n ot think it is the case. The evidence shows that soo n after the beatings ended , the appellant reported to the land lady , Regina Nampasa and his frie nd , and in no ti me the police turned up. 13 . 3. In any case , Bre nda Mata f wali ' s testimony is corroborated by Regina Na mpasa ' s tes t imony that the appellant reported to h er that he had beaten the boys . ·• ( ( J19 13 - 4 - We therefore find no basis on which Brenda Matafwali' s evidence incriminating the appellant, can be labelled ~slacking credibility . 13 . 5. The evidence against appellant can be summarised as follows: he was heard beating the boys and telling one of them not to report what had happened. Moments later he reported to the land lady that he had beaten the boys. He also went to report to the police that he had beaten the boys. A post-mortem confirmed that they died from being beaten. 13.6. In the face of the appel lant's admission to the Regina Nampasa and Constable Chitemfuma, which we have already indicated , was right ly admitted, we find that the appella nt was in fact incriminated by direct evidence a n d not circumstantial evidence . 13.7. We take the vie w that an admission or confession by an of fender, that h e has done the act that constitutes the offence , can , as it was in this case , be direct evidence. ' I ( ( J20 l3.8. The appellant admitted beating the boys and the evidence from the forensic pathologist, that they died from blunt force trauma , in simple terms being beaten, is in our view direct evidence. Further, his admissions that he had beaten the boys is support ed by evidence of Brenda Matafwali, on what she heard, that is the appellant beating the boys. 13.9. In the fa c e of this evidence , there is no basis on whi c h an inference that the boys died from elect r ocution c o u l d hav e been drawn on the evidence that was before t h e trial judge . 13.10. While it is o ur view that the trial judge erred when she concl uded t hat the evidence against the a p p el l a n t was circumstantial , we are satisfied that he suf fe r ed n o pre judi ce . Had she found that the cas e again s t h i m was an c h o red on direct evidence, the outcome wo u l d still have be e n the same . 13.11. In th e c ircumstance s , we equally find no merit in t he third ground of appeal and we dismiss it. \ ' 14. VERDICT J21 ( ( 14.1. Ha ving di s missed the all the gro unds o f a p pea l, we find no meri t in thi s a ppe a l and we dismi ss i t. 14.2. The matter does n ot e nd t h ere . 14.3. Section 36 (a) of The Penal Code p r ovi des t h at : "With respect to cases where one act constitutes several crimes or where several acts are done in execution of one criminal purpose, the following provisions shall have effect, that is to say: {a) Where a person does several acts against or in respect of one person or thing, each of which acts is a crime but the whole of which acts are done in the execution of the same design and in the opinion of the court before which the person is tried form one continuous transaction, the person shall be punished for each act so charged as a separate crime and the court shall upon conviction award a separate punishment for each act. If the court orders imprisonment the order may be for concurrent or consecutive terms of imprisonment : " 14.4. The import of this provision , is t hat wh enever a per son is convicted of more than one offence , a sentence must be imposed for each offence. 14. 5. In this case , the appellant was convicted for two cou nts of the offe n ce of murder , bu t when J22 imposing the sentence, the trial judge stated as follows, "In the premises, I sentence Eugene Haminga to death, to be hanged by the neck until h e is dead. May God have mercy on his soul." 14 . 6. Since the appellant was convicted for committing two murders, the trial judge erred when she sentenced him in that manner. Having found that there were no extenuating circumstances , she should have impo s ed the death penalty on each count. 14.7. We according impose the death penalty on each of the two counts for which the appellant was convict e d . ·································································· C . F. R. Mchenga DEPUTY JUDGE PRESIDENT D. L . Y. Sichinga, SC COURT OF APPEAL JUDGE ................................................... K. Muzenga COURT OF APPEAL JUDGE