Kabika v The People (HLA/162/73) [1973] ZMHC 162 (22 November 1973)

KABIKA v THE PEOPLE (1973) ZR 352 (HC) HIGH COURT SCOTT J 22nd NOVEMBER 1973. (Cause No. HLA/162/73) Flynote Criminal law 45 - Assault on police - Whether constable acting in the execution of his duty. ■ 1973 ZR p353 SCOTT J Criminal procedure - Magistrate stopping cross - examination of accused and commending a prosecution witness - Propriety of. Headnote The appellant was charged and convicted of assault on police and of conducting himself in a disorderly manner in the Mongu police station. The appellant was seen to be driving on the wrong side of a road and did not 5 stop when signalled to do so by a police vehicle. He turned off to a traditional village where he stopped. He walked a few yards from his car and was then stopped by a constable who requested him to come to the police station. This constable took hold of the appellant's arm whereupon the appellant punched him on the chest. The appellant was then forced into 10 the police vehicle and taken to the police ■ station. Held: I (i) The constable was not acting in the due execution of his duty when he asked the appellant to go to the police station. (ii) The magistrate should not have stopped the appellant's 15 cross - examination of certain ■ witnesses and should not have commended one of the prosecution witnesses on his help to the police and the court before he had heard the defence. Cases cited: I (1) Kenlin and Anr v Gardiner and Anr (1966) 3 All ER 931; 20 (2) Donnelly v Jackman (1970) 1 All ER 987; (3) R v Van Zyl and Ellis (1949 - 54) NR 227; (4) Christie and Anr v Leachinsky ( 1947) 1 All ER 567. Legislation referred to: I Roads and Road Traffic Act, Cap. 766, s. 196 (2); 25 Criminal Procedure Code, Cap. 160, s. 29 (1) and (4). M S Sifanu, Mwisiya Chongwe and Co., for the appellant. M K Achiume, State Advocate, for the respondent. Judgment Scott J: The appellant, Felix M. Kabika, appeared before the subordinate court of the first class for the Mongu district on two counts. 30 On the first count he was charged with assault ■ on Police contrary to section 250 (b) (d) of the Penal Code. I do not know why the prosecutor referred to paragraph (d) as well as (b) because (b) is the correct one and (d) is not applicable to this offence. The particulars read that the appellant on the 2nd day of September, 1973, at Mongu assaulted a police officer, 35 namely, No. 10669, Constable Hadyabantu. When Constable Hadyabantu, who was the second prosecution witness, gave his evidence he said that his name was Francis Moonga but another witness referred to him as Hadyabantu so it is clear that he is one and the same person. It would have been preferable if the name given in the particulars of offence had 40 been the name that the witness was going to describe himself by. ■ ■ SCOTT J 1973 ZR p354 I ■ ■ On the second count the appellant was charged with conducting himself In a disorderly manner in the Mongu police station contrary to section 60 (1) of the Zambia Police Act, Chapter 133. He was found guilty after a trial and sentenced to one month 5 imprisonment with hard labour on each of these counts to be served consecutively. He appeals to this Court against his convictions. The State supports these convictions. During the night of the 2nd September a police car patrol was out on 10 duty in Mongu with Constables Hadyabantu, Mabuku and Mutila, who was the driver, as well as Woman Constable Siabozu. In their company was a 14 - year - old boy called Kakwende who had been given a lift. A motor vehicle driven by the appellant was seen travelling on the wrong side of the road in front of them. Despite the sounding of the police siren the 15 appellant did not move to the left and the police overtook him on the near side. When signalled to stop the appellant did not do so or may have done so momentarily and then turned off on to another road leading to the traditional village where he finally stopped. The prosecution alleged that when Hadyabantu approached the 20 appellant, the appellant struck him. The defence case was that although the appellant resisted being taken to the police station he did not strike the police constable. Mr Sifanu submits that the evidence was insufficient to justify the magistrate's finding that the appellant assaulted the constable. He points 25 to the fact that it was dark and that at the time of the assault the other constables were still in the Land - Rover from which they may not have been able to see what happened. The magistrate correctly reminded himself of the burden of proof and having rejected the defence as lacking in plausibility accepted the evidence of the four police constables and the 30 boy that they actually saw the appellant hit Hadyabantu on the chest with one blow of his fist. The incident was near enough to the Land - Rover for them all to see and there was, contrary to learned counsel's submission and according to the boy's evidence, moonlight. In my opinion the magistrate who had the opportunity of hearing and seeing all the witnesses 35 including the appellant, had ample evidence on which to reach the finding that the appellant did assault the constable, and I see no ground for disturbing this conclusion. I cannot say that for someone to strike a police officer is unusual, as Mr Sifanu advances, if that term is meant to suggest unlikely though I would agree that it is fortunately uncommon. nor can I 40 say that a difference in recollection as to which hand the appellant used, whether left or right, suggests that the evidence of there having been an assault was unreliable. Learned counsel for the appellant has further submitted that in any event Hadyabantu and his colleagues were not acting in the due execution 45 of their duty when Hadyabantu held the appellant by the arm and when they all pushed the appellant into the Land - Rover. Learned counsel for the State on the other hand submits that they were. Mr Sifanu argues ■ ■ ■ ■ ■ ■ 1973 ZR p355 I SCOTT J that the offence for which the appellant was forcibly put in the Land - Rover was not the alleged assault but a traffic offence and that he was not aware why he was being required to go to the police station. Counsel puts forward the contention that the interference with the appellant's liberty was unlawful and that the appellant was entitled to resist. He sites in 5 support of his argument Kenlin and Anr v Gardiner and Anr [1]. In that case the appellants were both schoolboys, aged fourteen, who were seen by two police officers in plain clothes going from house to house in a street. The officers became genuinely suspicious of their conduct, which, however, was in fact quite innocent. One of the officers went up to the 10 boys and said, "We are police officers, here is my warrant card. What are you calling at the houses for?" The boys, apparently, did not appreciate from the warrant card that the respondents were police officers and were frightened at being accosted by strange men. Accordingly, instead of replying, one of them tried to run away, was caught hold of by one of the 15respondents and struggled violently, hitting and kicking him. The other appellant started to run off, was caught and he too struggled and hit the officer. Both ■ I ■ ■ appellants were charged with assaulting the police in the execution of their duty contrary to section 51 of the Police Act, 1964. The magistrate found that the boys had technically assaulted the respondents 20 and convicted them, but granted them an absolute discharge. On appeal it was held that the police officers' acts in catching hold of the appellants were not done in the course of arresting either of the appellants, but for the purpose of detaining them in order to put questions to them, and thus the acts were technically assaults, accordingly the justification of 25 self-defence was open to the appellants in answer to charges based on such assaults, and, as it had not been found that the force used by the appellants in self-defence had been excessive, the convictions of the appellants would be quashed. The foregoing case was distinguished in Donnelly v Jackman [2] on 30 which the State relies, and in which the appellant had been walking along the pavement when a police officer in uniform came up to him with a view to making inquiries about an offence which the officer had cause to believe that the appellant might have committed. The appellant ignored the officer's repeated requests to stop and speak to him. At one stage the 35 officer tapped the appellant on the shoulder, and shortly after the appellant tapped the officer at the chest. It became apparent that the appellant had no intention of stopping. The officer then again touched the appellant on the shoulder with the intention of stopping him (but neither then nor previously had the officer any intention to arrest the appellant), 40 whereupon the appellant struck the officer with some force. The appellant was charged with and convicted of assaulting the officer in the execution of his duty. On appeal it was held that the touching of the appellant's shoulder was a trivial interference with his liberty and did not amount to a I course of conduct sufficient to be outside the course of the offlcer's duties. 45 Mr Sifanu submits that his client's case can be distinguished from Donnelly v Jackman [2] in that the constable actually held him by the arm. ■ ■ ■ 1973 ZR p356 I SCOTT J Learned counsel also places reliance on R v Van Zyl and Ellis [3]. Reading from the headnote of this case, the main facts were that the first accused, Van Zyl, was the occupier of a house in Ndola behind which ran the usual sanitary lane. Upon a Sunday in October, 1952, the young 5 daughter of this accused was in the bathroom completing her toilet when she saw an African peeping through the window. The daughter screamed and her father, who was in the house at the time, came to investigate and sent for the second accused, Mr Ellis, who was in his employ as a building foreman and who lived nearby. Both these accused then went into the 10 sanitary lane, where they found the complainant, an African called Njerisano, walking there. The first accused questioned the complainant who answered that he was looking for his brother, and being dissatisfied with his answers, the first accused told the complainant to accompany him to the charge office. The complainant refused, whereupon the first accused 15 seized him by his tie and attempted to take him into custody; a struggle ensued, in which the second accused, Ellis, then joined. During the struggle an onlooker saw the African taking an object from his pocket, which later transpired to be a key, and shouted a warning. Ellis thought it was a knife, and accordingly struck the African a hard blow with his fist, as a 20 consequence of which he ruptured the African's left eye and blinded him. The two accused were accordingly charged with causing grievous bodily harm contrary to section 205 of the Penal Code. Having indicated that the arrest and detention by force of the boy was illegal Woodman, J, I went on at page 231: 25 ■ ■ ■ "This boy, Njerisano, was entitled to resist this illegal arrest up to a point, not to any extent, not to the extent of killing or maiming the people who were detaining him." The appellant's reaction, says his counsel in the case before me, was not disproportionate or I unreasonable. 30 This argument, I presume, is on the assumption that the appellant did in fact hit the constable, though this was not admitted in court, because there is no other evidence of assault by the appellant who was not charged with resisting the police. The magistrate specifically held that the constable was not engaged 35 in making an arrest ■ when he was struck by the appellant but was nevertheless acting in the due execution of his duty. He observed that the appellant by assaulting the constable committed an offence and must have known its general nature. Reliance was placed on Christie and Another v Leachinsky [4]. I agree that if the appellant unlawfully assaulted 40 the constable it was a logical and lawful consequence that he should be taken into custody immediately: explanation was unnecessary because it was apparent. Assault on a police officer is a cognizable offence under the Criminal Procedure Code, section 2 and the First Schedule thereto, for which arrest may be made without warrant. ■ 1973 ZR p357 SCOTT J It is necessary however to look closely at the evidence regarding the events once the appellant had stopped near the traditional village. The appellant himself said in the lower court: I ■ "From there we left the vehicle immediately and moved to his house (that is his relative's house). A few steps later after we left 5 the vehicle I saw the Land - Rover that had by-passed us stopping and from it I observed that there were three people inside and then immediately two of them came out and approached us. One of them whom I can't tell the name but I can identify him, and requested me to go to the police station. I asked him the reason why 10 he was requesting me. He told me I should not answer him in that way. I resisted there, then he could not tell me why he was inviting me to the police station. From there I told him it's all right although you don't tell me the reason. I'll go and drive my car myself; you drive your own police Land - Rover. He refused me 15 and instead ■ grabbed my hand, twisted me and snatched away the keys of my car from my right hand. Thereafter the other police officer in plain clothes grabbed hold of me together with him and forced me into the Land - Rover." In other words he refused to go to the police station because he was 20 given no reason. Under cross - examination he said, ■ "I came out of car on my own. I was just a few steps out of car." and a little later: "At first I resisted because I questioned them why I was being taken." 25 ■ His relative said: "Immediately the police arrived I came out of the police vehicle. Then they came to my young brother. Three in all two male constables and one female constable. They came to Kabika, 30 held him, said we have come to arrest you let's go to the police station. In reply he told them 'Why should I go to the police station?' After he had asked them the reason he said I can drive up to the police station. Upon this, he was manhandled and thrown into the police vehicle. " 35 ■ On the other hand Constable Hadyabantu had said: ■ "When he came out from his car he wanted to go to traditional village about a few yards away. I approached him. From there I said, 'I want to ask you.' He did not pay attention to what I said. I repeated it again but I continued walking. As I was near I caught 40 his right arm and said, 'Please, I want to ask you some.' He said, 'What do you want to ask me?' I said: 'Why were you driving on the right - hand side of the road?' He did not answer. He hit me with his fist on my chest. Constable Mabuku was near me, he had come out of ■ 1973 ZR p358 SCOTT J the Land - Rover. The driver Constable Mutila had come out and woman constable. I did not fall down when he hit me. I held him, when my friends saw him hit me, they came. We apprehended him." The two accounts were in agreement to the extent that the appellant 5 had left his car and gone a few yards or steps when the constable spoke to him but at variance in that the constable said he alone initially spoke to the appellant. Constable Hadyabantu also told the court that the appellant was warned at the scene that he would be charged for dangerous driving, though he didn't say at what point in time he 10 gave the warning. Constable Mabuku remembered the incident in these words: ■ I "Constable P. W.2 came out first at the traditional village. The accused came out from his (car), I identify him. They met. Accused grabbed him and hit him on the chest. We managed after a long time, as he was somewhat violent . . . P. W.2 did not fall down. It 15 was dark. I was still in vehicle about five yards away." ■ This witness knew the appellant before. He did not relate any words spoken by Constable Hadyabantu to the appellant. I Woman Constable Siabozu said: 20 "P. W.2 went to approach the driver. Went to apprehend him I saw the driver when he hit the constable with his fist on his chest. I was still in the car. When I saw driver hit him I came out. I observed this man closely, the accused. It was my first time to see accused person. He used his fist to hit P. W.2. The constable struggled with him. 25 We ■ forced him to get into Land - Rover. At first we told him to get into his vehicle but he refused." and under cross - examination she added: "When P. W.2 came out you also came out. You came out when you saw P. W.2 come out. He asked you why did not stop? 30 Instead of answering you hit him with your fist." The young boy's evidence was, ■ "I saw P. W.2 holding the arm of a man who was driving a car. Thereafter I saw the man hitting P. W.2 with his clenched fist on the chest. There was moonlight so I could see. I was able to see the 35 driver clearly. It was about three paces away." and under cross - examination he said, ■ "The police asked you to go to police station I think they asked you because your vehicle was moving from side to side of road on Senanga Road . . . P. W.2 asked you to go to police station. 40 You were refusing." Driver Constable Mutila narrated his version in these words: ■ "P. W.2 got out followed by Constable Mabuku. P. W.2 asked accused why he was driving in dangerous manner. He was asked to come out. I identify the accused, I did not know him 1973 ZR p359 SCOTT J before. When he came out he did not reply. He was asked to accompany us to the police station. The accused then hit P. W.2 with his fist and caught hold of P. W.2 by his left hand. We then all went to assist P. W.2. We pulled I accused into vehicle and took him to the police station." 5 Under cross - examination he said: "You were not touched. You touched P. W.2 first." It is apparent from these extracts that there were variations in the evidence of the prosecution witnesses. The magistrate dealt with the point, without going into detail, by saying that he considered that these 10 inconsistencies were not such as to go to the root of the evidence and make it so unreliable that it would be unsafe to base any assumptions on it. He went on: ■ "On the whole I think that the evidence of the prosecution has been given in a forthright and frank manner and is ■ ■ ■ that of 15 police officers recalling what they were doing and saw in circumstances which must have been somewhat unusual and trying. They had before them the Provincial Information Officer who was behaving in a childish and outrageous manner. Their evidence is consistent with all concerned doing their duty in a responsible and 20 competent manner." What he failed to observe was that substantially the same story was not told by the prosecution witnesses concerning the circumstances surrounding the assault which he found proved, and that two of the prosecution witnesses, the boy and the police driver, said that Hadyabantu 25 had asked the appellant to go to the police station. The boy obviously thought this was because of the way the appellant had been driving, not the assault, and the police driver said that the assault followed this request. There was therefore support for the defence that the appellant was resisting or refusing the request to go to the police station. If the learned 30 magistrate had directed his mind to this he might not have concluded that Hadyabantu's story was entirely correct. The conviction was justified if his story was correct but these other prosecution witnesses I have mentioned threw doubt on it by evidence factually favouring the defence. The benefit of this doubt should have been given to the appellant and if it 35 had been, then further questions would have arisen. Firstly, was the appellant justified in striking the constable as he did? I would say unhesitatingly no because on the totality of the evidence if the constable did touch him or hold him by the arm this was not an arrest intended or otherwise but only to restrain him from going away and 40 seems a reasonable thing to do in such circumstances, bearing in mind the other evidence that the appellant had failed to submit to the police officer's signals to stop. Following Donnelly v Jackman (2) I would say it was, in itself, a trivial interference with his liberty, and within the constable's duty to stop and speak to the appellant on account of what he 45 had seen the appellant do. ■ ■ ■ ■ 1973 ZR p360 I SCOTT J The assault was equally wrongful if the constable had merely made the request that the appellant should go to the police station. The appellant was within his rights to refuse but not to hit the constable. The prosecution evidence all pointed firmly to the fact that the blow was 5 struck before any attempt was made to put the appellant in the police Land - Rover. The blow was apparently struck as a result of what had been said to him, not done to him. I do not consider that there was any possibility that when the blow was struck the appellant I was lawfully resisting an unlawful arrest. 10 Secondly, was the constable acting in the due execution his duty in asking the appellant to go to the police station? Assuming that the constable had in mind to charge the appellant with dangerous driving, which is what he said, his powers were those contained in section 196 (2) of the Roads and I Road Traffic Act which reads: 15 "Any police officer may arrest without warrant the driver of any motor vehicle who commits or is reasonably suspected of committing an offence under this section within his view, if he refuses to give his name and address or if the police officer has reason to believe that the name or address so given is false, or if 20 the motor vehicle does not bear a registration mark." Only in those circumstances did the officer have power to detain. He had the right to ask him for his name and address: he had no right to ask him to go to the police station. A similar provision is contained in section 29 (1) of the Criminal Procedure Code which I reads: 25 ■ "When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on the demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer, in order that his name or 30 residence may be ascertained." Subsection 4 of the same section reads: ■ "Any police officer may arrest without a warrant any person who in his presence has committed a non-cognizable ■ offence, if reasonable grounds exist for believing that, except by the arrest of the person offending, he could not be found or made answerable to 35 justice." The constable, however, did not claim to have been acting under these powers. It seems to me that it was not the constable's duty to ask the appellant why he was driving dangerously or failed to stop: these were matters on which, the events having taken place 40 in his view he had to make up his own mind. He had the right and indeed duty to ascertain the appellant's name and address but only on refusal or disbelief of the reply to these questions had he the right to take the appellant to the police station. On the basis, therefore, of the account most favourable to the 45 appellant, the constable was not, in my opinion, acting in the due execution ■ ■ 1973 ZR p361 SCOTT J of his duty when he asked the appellant to go to the police station, instead of asking him his name and address. For these reasons his appeal on the first count is allowed to the extent that the finding of the magistrate it altered to the minor offence of common assault contrary I to section 247 of the Penal Code. 5 As far as the second count is concerned, the magistrate's decision that the appellant behaved in a disorderly manner at the police station was fully justified by the evidence presented to him. He was entitled to believe the prosecution witnesses and reject the defence that the appellant behaved properly and was himself assaulted. The doctor's evidence merely served 10 to confirm that the appellant had sustained a swelling on his forehead which could have been caused by any force including a bump against a window frame or a car door. In the circumstances the sustaining of the injury was not such as was bound to cause the magistrate to doubt the prosecution evidence. The appellant is described as a provincial 15 information officer: had he been kicked and beaten in the police station as he alleged he would assuredly have complained of such treatment to the officer in charge ■ ■ ■ whom he saw the following morning. He didn't: he merely said he was not feeling well but did not say what was wrong. I The appeal against conviction on count two is dismissed. 20 Although I am satisfied that there has been no miscarriage of justice, the learned magistrate should not have stopped the appellant's cross examination of certain witnesses and should not have commended one of the prosecution witnesses on his help to the police and the court before he had heard the defence, as such actions can easily give the impression that 25 the magistrate is leaning in favour of the prosecution and impartial justice must be seen to be done. There is no appeal on record against the sentence but under section 327 (1) (a) (ii) of the Criminal Procedure Code this court can, on an appeal against conviction, reduce or increase I the sentence. 30 In view of the alteration of the finding on the first count and the fact that the appellant was a first offender I have no hesitation in saying that a custodial sentence was inappropriate punishment for a single punch on the chest. Common assault is a misdemeanour. While his behaviour at the police station was deplorable, especially in view of his own position in the 35 civil service, I consider imprisonment with its possible consequences, was unduly ■ harsh. I shall therefore reduce the sentences on both counts as follows: Count 1 - A fine of K40, in default one month simple imprisonment I Count 2 - A fine of K30, in default one month simple imprisonment. 40 Cumulative. Order accordingly