Mulundu v People (Appeal 74 of 2017) [2018] ZMSC 37 (29 May 2018)

. - , • • • • • Jl • • • SELECTED J UDGMENT NO . 18 OF 2018 IN THE SUPREME COURT OF ZAMBIA ' P .685 • APPEAL NO. 74 /201 7 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: EVARISTO MULUNDU I I APPELLANT I I ' vs THE PEOPLE RESPONDENT Coram • • Phiri, Mutuna and Chinyama, JJS on 8th May 2018 and 29th May 2018 For the Appellant For the Responde nt • • • • Mr. C. Siatwinda of Legal Aid Board Mrs. S . Chinyama - Kachaka, Senior State Advocate at the National Prosequtions Authority J U DG MEN T Mutuna, JS . delive r ed the ju d gm ent of the court. ' Cases refe rre d to: 1 ) David Dimuna v The People (1988/ 1989) ZR 199 2 ) Dor othy Mutale and Richard Phiri v The People ( 1977) SJ 51 3 ) Steven Nyoni v The People (1 987) ZR 99 - - -· • r • • • • J2 "' ' • ' P.686 Othe·r works referred to: I ' 1) Penal Code, Cap 87 2)· Juveniles Act, Cap 53 · ' Introduction 1) • T- -h. lS I appeal is against the sentence by the It Learned High Court Judge for robbery and murder of one Hatarnbu Harnbulo, (the deceased) .. 2) The appeal questions the d~etertnination n1ade by the Learned High Court Judge that the Appellant was not a juvenile at the time of con1111itting. the offences. 3) As such, it challenges the findings of fact and sentenc~ng of the Appellant by the Learned High Court Jud.ge. Backgroun.·d ,., _ I • I • ' J3 • • • ' 4) ,, The facts 6f this cas ~e reveal that the dece,ased was ~. lilUr·dered in .a gruesome n1anner during the execution of a robbery by the Appellant. The • surnn1ary is that th~e deceased who was an ~ernp1·oyee of Food Reserve Agency did not report for -work on 8th January, 2013. Since this was out of character, her worklllate was pro~n1pted to call her on her rnobile phone but the phone was off. 5) The workmate then contacted a friend to the deceased to find out if she knew the whereabouts of the deceased ,. The friend also tr1ed in vain to ·call the deceased. 6) Later the workmate infor1ned the deceased•s fath ~er who in turn requested the deceased's m.other t~o call at the ~deceased's ho · se and find O·Ut if all was well., ·• , •. • • J4 • • • 7) The ~ . deceased 'ls work1nate was ··· still worried ab·out the deceased's silence .s,o after le·aving wor.k sh·e drove to the d~eceased's house and rn.anaged to I , enter the Y,ard. She peeped through th ~e bedro~ ·otn . windo-w and noticed that the d~eceased's bed was still no~ t 01ade which was uncharacteristic of the deceased who v:as known t~o be neat and tidy. 8) The workmate th·en enquired from the neig.hbours if they k.new th~e where:abouts o~f the deceased and -was inforiTie:d that so111.etirne earlier that rr1orning they had hea.rd agonizin.g so·un.ds ~coiTiing fr·O'lll the deceased ''s house. 9') The polic:e later arrived a t the d~ec~eased ' s house in th~e cotnpany of the dece,as ·· d's rr1oth~er and irnn1ediately started con . uct1ng d .. inve·s.tigations aro~und th·e yar~d. T.heir attention was dr.awn to a • • ' • • JS • • • • P.689 head s.ock near the septic tank in the yard. Th·ey ' then opened the septic tank and found the d~ec~e .ased's naked body bound ar·ound the arms • and legs and gagged around the mouth with a ' towel and masking tape. I I 10) The police called in the Fire Brigade who re·trieved the body of the deceased and took it to the 11) Prior to this at about 6:30 hours, one Sharon Mutinta Chiy.am.bi, a wom.an sergeant stationed at Elllrnasdale Police Station, who testified as PW7, whilst driving along An1erican Embassy· roa·d, no·ticed a vehicle swerve from her left, cut across her path and land ·n a drainage ditch. In line with her duty as a traffic officer, she· approached th t j • t • • • , • ' J6 • I ,, vehicle and noticed the App~el~ant corning out of the vehicle clt1tching two, n1obile phones. 12) Wh~en the Appellant noticed her, he attempted to • I• l run away but she apprehended him and detained him in the p~resence of· PW 1, for driving dangerously and without a licen~ce, at Wo~ odlands Police Station where she was stationed at the titne. She also arranged for the vehicle to be towe ~d to Woodlands Police Station. 13~ ) On gth J ,anuary 2013, following an in·vitation to Woodlands Police Station, the deceasedls father vvent and identified the v~ehicle as b ,elonging to· th ~e d ceased, thereby linking ·he Appellant to the • criiTle ,. 14) The Appellant was later charged and p ro s cut,ed on two counts of robb ~ery ,and Inurder. ,, j t • • • • • J7 • ( .. ' P.691 'Conte:ntions ··made by the . Appellant befor·e t.he Le·arned Hig·h Cou.rt Judge \ 15) During the trial., the Appellant contende ~d that at I · th~e titne of con11nission'' of the ·offenc~e he was a · - - - - - - - - - - - - - - - - juvenile. This caused the Learned High C·ourt Judge to conduct a det,aile ~d e.nquiry into his age. 16) A number of witnesses of fact and an ~exp· ert were called. 1 7) At the close· of the enquiry the Learned High Court Judge det~e.r·n1ined the Appellant's ag~e as being 22 years ·or at leas.t 21 years plus, at th~e titne ·of· con1:tnission. o~f the o~ffences. 18) After the trial · was con·clu~ded the Lear·ried High Court Judge fo.un~d the Ap~pellant guilty of robbery and tnurder and accordingly co nvict~ed him. ,, ' • • • • • • J8 • • • • • • P.6·92 ,, 19) ' Lat~er the Le.arned High · Court Judge sentenced · the Appellant to 14 years itnprisontnent on the ' murder ... I I • • Ground.s of app·eal to this Co·urt and argu.111.ents. 20) The d~ecis.ion of the Learned High Court Judge has aggrieved the App·ellant, p·rolllptin,g .hirr1 to launch this appeal on two gro·unds as follows: 20.1 The lower court fell in e.r.ror w.hen it p~.roceeded to p~ ass sentence on t.he Appellant without making a ruling and or det·erminati.o.n of the Appellant•s ag·e after holding a .n inqu.iry for age ~d·etermination .. 20 ... 2 T·he co~urt below erred both in law and fact when it failed to find that the Ap·petlant was a. juve:nile at the time ·of the ~offen·ce, therefore, entitled t ·o be s.enten·ced as a juvenile as. o·pposed _-o b·eing sentence ~d to· d.eath ... 21) At the hearin,g, we w~ere infor111ed by counsel for the . Appellant that h~ · h .ad abandon ·ed ground 1 of • ' ' • • • • • • • J9 • • P.693 the appeal. The reason for this was that couns ~el ., for the Appellant noted that the L arned High Co·urt Judge ·did infact r~ender her decision on the detern1ination of the Appellant's age. In any event, I· t I ~even assutning that she o111itted to ·do~ so, we would have been at large to conduct a hearing for purposes of determining the Ap·pellant's age. This is in accordance with what we did in the case ~of David Dirnuna v The People1 . As such, the only gro~und of app ~eal which stoo·d for detern1ination w-as ground 2. 22) Both parties filed heads o~f argument prior to the hearing. The gist of the arguments by the . Appellant under ground 2, was that the evide·nce· taken during the enquiry in to th ag . ~of the Appellant reveals that he was a juv nile at the II • • • • •. • • , JlO • • • P.6·94 • • I , ' tillle ~of co111tnission of the offence. Argu.·· ... ~ing in th~e i I ' ' • ' alte· rnativ~e, the Appellant sub!llitted that s1nce there· ·was conflicting ~eviden ~ce in respect of the App ~ellant's age which raised doubt as t~o his, true 1: I I 'I' age, the conflict Inust b ~e resolved in his favour in accordance with our de ~cision in the case of Dorothy Muta ,le and Richard Phiri v The .23) The Appellant conclud~ed his sub~ Inissio~ n .s by urging us to follow ~our de·~cision in the ~case of Steven Nyoni v The, P~eopl~e3 where W ·e held that a person who~ is no longer a juv~enile who had COlllillitted an offenc.e whe·n he was a juvenile • tnu·st be tried as ,an adult in the app~ rop~riate ~court in a~ccord ,anc~e with the Juvenile Ac . but for ! , I • • • • • • • • Jll • • , purposes ·of sentencing, he should be treated. as a •I I 'I ' ' I ' juvenile. 2·4) In the viva voce arguments couns ~el for the Appellant, Mr. C. Siatwinda took issue with the I ' I L~earned Hig·h Court Judge's discounting: of the evidence by the . Appellant's mother as to his age. He argued that the evidence of a mother has always been accepted by Courts as to the age of a child. Further, the 1nother had produced in e.vidence a birth r~ecord card which was not challenged by the Respondent. It should, in the consequence, be de ·erne ~d. to have been a~drnitted. Counsel concluded that the findings of fact by the trial court were perverse and sh·ould be set asid~e. 25) In response, the Respondent argued that there was no doubt raised by the evidence tendered as • I • • I • I • I • t J12 • P.696 'I to the Appellantls ?ge which req:uired resolving in • • • I favour of the Appellant. Further, the c~ourt having det·errnined that the Appellant was not a juvenile, \ he was correctly sentenced as such by the • I • • Learned High Court Judge. Reason.ing and decision of t.his Co~ urt 2 ~6) We have considered the argutnents by counsel and the record of appeal.. The appeal challenges the findings of fact made by the Learned High Court Judge that the Appellant was not a juvenile at the tin1e of commission of th~e offence. It • IS contended th.at the fin.·dings ar~e pe:rverse and should thus, b e ·set asid·e. 27) It is in1p~ ortant t h a t we set out the fin dings m a de by the Learned High Court Judge and the basis of t he findings b e fo r e we determin e the appea l. , t • I • • • • ' • ' J13 • • • , The · Learned High Court Judge b ~egan ' by analyzing the evidence of the only expert witness, one Dr. V~eronica Sunkutu Sichizya. The fact that • . this vvas th~ only expert witness was noted by the . Learned High Court Judge. 29) The witness had b gan her deterinination o~f the Appellant's age by conducting an x-ray test which revealed that he w.as a juvenile. This w,as ba.sed on the x-ray results which suggested that ~certain bon~es in the Appellant's hand had not yet fused. She later suggeste·d an MRI scan to ~confirlll the x- ray findings. The scan revealed a scar where the x-ray results .had suggested s ~eparate . bones, llleaning that the bones were actually fused, which ren1ove ~d the Appellant fro1n th · realms of a • • I I ,Ill • I • J14 , • , • P .. 698. juvei)ile and she _accordingly determined his age t M f ' as. being above 18 years but below 2 ·4 years . 30) Th·e Learned High ~Co·urt Jud.ge then exarr1ined the ' evidence of the school regist~ers from the schools • I I I the Appellant attended in 2007 and 2011 .. This evidence r·evealed that the Appellant was born in 1991 meaning that he was not a juvenile at the tin1e of cotnrnission of the offence. She then Ap~pellant beginning with the national registration ·Card (NRC). This evidence placed the Appellant's birthday at 16 h Dece1nber · 99·4. She discounted th~e reason given by the Appellant for • obtaining th . NRC and increasing his ag · which h . attributed to the deceasedrs n ed to have h·s contact d.etails because· in th ~e ju ~dge's view,. the • • .. , • ' • r JlS t I P.699 d ·eceased had nothing to g.ain fron1 the Appellant ~ J, f increasing his .age. It was the Learned H·gh Court \ Judge l's finding, in this r~egard, that the Appellant voluntarily and of his own volition stated his birth I I • I year as 19·94 when obtaining the NRC. This year, the Court found, resulted in a co·nflict in the Appellant's evidence because the arresting officer testified that at the time of his arrest he gave his age as 20 years old and handed the NRC, which placed hiiil at the material date at 19 years which was still outside the realtn of a juvenile. 31) Next, the Learned High Court Judge exarn ··ned the eviden.ce of the Appellant's mother wh1ch revealed that he was born in 1996. The evidence was in the form o:f a birth record card b~ earing the date s alllp of 2013 subs.equent to the co111rnission of the • t ' • • • • • • J16 P.700 • offence. She discount~ed this evidence because it ' wa.s unusual for· a child bo·rn in 1·996 t·o have a birth recor·d card with a date stamp of 2013 . She held the birth record card to be a fabrication. I t I I 32) La.st of all, the Learned High Court Judge· considered the accused's own ·evidence· that he -was born in 1998. She had n.o proble1n dismissing it becaus·e it conflicte·d with the evidence of the Appellants. ·own tnother. 33) Having dismissed the conflicting evidence, which was by and large led by the Appellant, the Learned Hi,gh Court Judge considered the evidence that was not co·nflicting and ·Concluded that the Ap·p llant was 22 years of age or at 1 ast 21 years p us at the tin1e of cOITllilission of the offence. ·This put the year of birth to 1991. • J17 • • • r P.701 ' .3 ~4) . Th~e SUTilinary w~e have given of the analysis o~f the evidence placed b ~efo~r~e the Learned High Co~urt --. Judge reveal's that she . Properly analyzed the eviden·ce 'by: cotnparing it and setting out the I conflicts,· ·dis. co~unting.·· the ~conflicting·.·· evidence and 'I ' I I giving reaso·ns; and setting out the evidence that was not conflicting and stating the reasons for accepting it. 3 .5) The Appellant has contended that the conclusion by the Learned High Co~ ur·t Judg~e was flawed b ~ec.ause it was perv~ers .e. W~e do not accep~t this . con t~en tion because in view of the analysis we have gi · · ... 1ven 1n ·· th .l· e p~ rece .. d. ~ Ing paragrap~. h th .·· e reaso~ning: by the Learn ~e ·d Hig·h C ~ourt Judge was sound and not at all flawed. Furth~er, the evidence led by the a~ccused wh n looked at in totality w_as all conflicting. Th~ere c~an, therefo~ re, be n~o question of r~es,~olving the c~o~ nflict in his fav~our· .. 36) On. the ~o~ther h.and th ~ evidence by the prosecution was in no way c~onflict ing save for th ~e • • , J18 • I • , P.702 differences in the x-r.ay and MRI scan which were ,, I II c I , verified and explained. We accordingly cannot fault the Learned High Court Judge for accepting it. Conclusion l I I l 37) The net result is. that the appeal collapses and we uphold the sentence by the Learned High Court Judge in respect of the two counts ~of robbery and murder. I • ••• •· •••••••••••• -. • • . • . rJ .. - ·~, , ~- -- • • \.!,. • • • •••••• G:-s. PHIRI SUP·REME COURT JUDGE •• ' I I - •••••••••••••••••••• ••••••••••••••••• N K. -M · -TUNA SUPR. E E CO· TA:JUDGE ~~ • . • • • · • • • 0 • • • • ·• 9 ' • • • • • ·• • • • • • • • · • • • • • • • • • • • • • • J - . - J. CHINYAM UPREMECOURTJUDGE