Eugene Miyambo v the People (APPEAL NO. 107/2022) [2023] ZMCA 426 (24 February 2023)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL N0 . 107/2022 BETWEEN: EUGENE MIYAMBO AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP , Ngulube and Muzenga, JJA ON : 22nd February 2023 and 24 t h February 2023 For the Appellant : H. M. Mweemba , Acting Director , For the Respondent : D. Mbao , State Advocate , Legal Aid Board Nati onal Prose,cutions Authority JUDGMENT Mchenga DJP , delivered t h e judgment of t h e court . Cases referred to: l . Emmanuel Phiri v . The People [1982) Z . R. 77 2 . Shamwana and Others v . The People [1985] Z . R. 41 3 . Lupupa V . The People [1977] Z. R. 38 Legislation referred to: 1 . The Penal Code , Chapter 87 of The Laws of Zambia J2 1. INTRODUCTION 1 . 1. The appellant and another man , appeared before the Subord inate Court (Honourable N. V. Mu tutwa ) , on a cha rg e of rape, contrary to Sections 132 and 133 of The Penal Code. 1.2 . They both denied the charge , and the ma tter proceeded into trial. 1.3. At the end of the trial, they were both convicted and committed to the High Court for s ,entencing .. 1 . 4 . In the High Court (Mumba , J . ) , they were each sentenced to 15 years imprisonment, with hard l abour . 1.5. The appel l ant has appe al ed agai n st t h e conviction. 2 . CASE BEFORE THE TRIAL MAGI STRAT. E 2 . 1 . On the 26 th of September 2020, the prosecutrix exited Ka lunga Bar, in Mufulira ' s Mpatamatu Locat i on , at about 21 : 00 hours and started walking home. 2 . 2 . Before she could reach her h ouse, she was attacked by a gang of 7 men , who took turns in raping her. J3 2.3. The following morning, a young boy who was suspected of being part of the gang, was apprehended by members of the community crime prevention unit, and handed over to the police. 2.4. The young boy denied being part of the gang, but informed the police that he knew the persons who had committed the offence. He led the pol ice to the apprehension of the appellant's co-accused. 2.5. In turn, the appellant's co-accused incriminated the appellant, and led the police to his apprehension. 2.6. The prosecutrix was then invited to identify the appellant and his co-accused, from the police cell s at Mpatamatu Police Station, where they were detained. 2. 7. In court, the appellant's co-accused denied committing the offence or being with the appe ll ant at the time the offence was committed. 3. FINDINGS BY THE TRIAL MAGISTRATE J4 3 . 1 . The trial Magistrate found that the appellant was incriminated by the identification evidence from the prosecutrix . 3 . 2 . He also found that the appe l lant was further incriminated by the evidence his co-accused gave 1n court , that he was a part of the gang that raped the prosecutrix . 4. GROUND OF APPEAL AND ARGUMENTS IN SUPPORT 4 .1 . The sole ground of appeal is that the prosecutrix ' s evidence identifying the appellant as the offender , was not corroborated. 4. 2. In support of the sole ground of appea 1 , Mr . Mweemba referred to cases , including the case of Emmanuel Phiri v. The People 1 , and submitted that since the appellant was charged with a sexual offence , the prosecutrix ' s evidence identi f ying h i m as the of f ender requ i red corroborat ion . 4 . 3. He argued that s ince that evidence was not corroborated , the conviction cannot stand. JS 5 . ARGUMENTS IN RESPONSE TO THE SOLE GROUND OF APPEAL 5 . 1 . The State does not support the conviction. 5 . 2 . In addition to conceding that the prosecutrix's evidence was not corroborated, Mr. Mbao referred to the case of Shamwana and Others v. The: People 2 and submitted that in view of the fact that the appellant's co-accused's evidence incriminating the appellant was not repeated in court , the trial magistrate should not have relied on . 6. COURT'S CONSIDERATION of APPEAL AND DECISION 6.1. The first issue we will deal with , is the trial Magistrate 's finding that the appellant was incriminated by the testimony of hi s co-accused , that he was part of t he gang that raped the prosecutrix . 6.2. We have examined the record of appeal, and we have not come across such evidence. The only evidence by the appellant's co - accused, incrimina ti ng the appe ll ant, was the statement he gave to the police. 6.3. Given that the finding that the appellant was incriminated by the testimony of a co - accused is not JG supported by the evidence , we set i t aside in line with the decision in Lupupa v. The People3 • 6.4 . As correctly pointed out by Mr . Mbao, and in l ine with the decision in Shamwana and Others v . The People2 , since the incriminating out of court statement of the appellant's co- accused was not repeated or adopted in court , the trial magistrate should not have placed any reliance on it . 6 . 5 . With this finding , the only evidence against the appellant is the prosecutrix's uncorroborated poor quality identification evidence. 6 . 6 . We have classified the prosecutrix's identification evidence as ' poor quality' because the appellant was identified from police cells. In the circumstances of this case, an identification parade should have been conducted to ascerta i n whether the prosecutrix was capable of identifying the appellant . 6 . 7 . All in all, we find that the prosecution evidence fell short of evi dence that proved the charge of rape beyond all reasonable doubt. 1' ,. J7 6.8. Consequently, we find that the conviction is unsafe and we allow the appeal. 6 VERDICT 6.1 We set aside the conviction and quash the sentence. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT P. C . M. Ngulube COURT OF APPEAL JUDGE ........ ~ ~············· K. Muzenga COURT OF APPEAL JUDGE