Felix Muleba and Anor v The People (Appeals Nos: 23,24/04) [2005] ZMSC 56 (5 April 2005)

IN THE SUPREME COURT FOR ZAMBIA Appeal Nos: 23,24/04 HOLDEN AT K. ABWE (CRIMINAL JURISDICTION) BETWEEN: FELIX MULEBA SHARON MULEBA AND THE PEOPLE 1st Appellant 2nd Appellant Respondent \ Coram: Sakala, CJ., Silomba JS and Mushabati Acting JS 2nd November 2004 and 5th April 2005 For the appellants: Mr. K. F. Bwalya ofKBF and Partners and Mr. N. Chanda of Nicholas Chanda and Associates For the State: Mr. C. F. R. Mchenga, Chief State Advocate. JUDGMENT Sakala, CJ., delivered the Judgment of the Court The appellants, husband and wife, were sentenced to d~ath following upon their convictions for the offence of murder, contrary to Section 200 of the Penal Code, Cap. 87 of the Laws of Zambia. The particulars of the offence alleged that the first appellant, Felix Muleba, a Pastor and Sharon Muleba, the second appellant, on a date unknown but between 5th and 10th April 2000, at Lusaka in the Lusaka District of the . I ( I I I I Lusaka Province of the Republic of Zambia, jointly and whilst acting together, murdered Sarah Soko. The deceased was the appellants' live-in maid. The fact that the deceased disappeared and discovered dead in the bush on the 10th of April 2000 was not in dispute. There was, however, no direct evidence connecting the two appellants to the· death of the deceased. The prosecution's case centered on circumstantial evidence. In his defence, the first appellant elected to remain silent, which W1der our law, he was entitled to do. The second appellant gave evidence in her defence in which she totally denied that she and her husband had anything to do with the death of the deceased. The prosecution called nine witnesses in support of their case. The first of these witnesses was Mrs. Malina Mukuka, a Timekeeper/General . Services at the American Embassy Warehouse. Her job included monitoring the attendance of all employees at the Embassy Warehouse where she is based. She testified that the second appellant was one of the employees at the American Embassy. She explained that every employee at the Embassy had to sign the attendance sheet, when reporting for work and when knocking off. On 5th April 2000, she reported on duty at 0930 hours, as she had gone for a medical check up. The second appellant, who was supposed to report for duty at 0730 hours had, by 0930 hours, not signed the attendance sheet. Consequently, she, (PWl}, crossed out the space in the time column in respect of the second appellant. In cross-examination, she explained that the second appellant used to work down stairs and that it was possible for the second I ' appellant to have reported on duty down stairs and worked without coming upstairs to sign the attendance sheet. PW2, Sub-Inspector Dominic Nkandu, testified that on 5th April 2000, at 2130 hours, he received a report from the second appellant, who was in company of the first appellant, that her servant, by the name of Sarah Soko, had stolen several items from the house and disappeared. When he asked her to list the stolen items, the second appellant was not able to do so. He advised her, the second appellant, to return home and list the stolen items and give them the value and come back to the Police Station the same day. According to PW2's evidence, the second appellant did not return to the Police Station as advised, but only came back to the Police Station a few days later in company of the deceased's relatives. In cross-examination, he testified that he did not record a statement from the second appellant. He did not visit the scene. PW3, Sainess Nyirenda, the mother of the deceased, testified that on 8th April 2000, the first appellant brought the deceased's clothes in two plastic bags at 1700 hours, saying that property had missed from his home. He also said that meat and one chicken had missed from their fridge. The first appellant did not explain where the deceased was. In the plastic bag was a blood stained dress, which the first appellant said belonged to his wife. PW3 further testified that she refused to accept the deceased, s clothes because she wanted the clothes to come with her child. But the first appellant stated that they would solve the request later. She requested to accompany him. She went with him to his house in Libala. She found the second appellant seated in the sitting room. She had a discussion with the second appellant, who narrated how she found the house on the material date. PW3 asked both appellants why they reported to her on a Saturday when the deceased missed on a Wednesday. The explanation was that they thought the deceased was frightened and that she would show up later at PW3's house. According to PW3, she told her that they had taken the deceased without her consent and that they should now know where she was. PW3 also testified that she last saw her daughter on the 12th March 2000, when the first appellant took her. The next time she saw her body in the bush. PW 4, the grandfather to the deceased, testified that on the 9th April, he got a report from PW3 that the deceased was missing. Upon receipt of the report, he went to the appellants' house in Libala. At the house, the second appellant confirmed that the deceased missed on Wednesday at 1200 hours. According to PW4, the second appellant explained how she went home at 1800 hours after work and foWld that the deceased had washed all the clothes and when she entered the house, she found the cooker overheated and the baby was on the chair with a cloth tied around the neck. In the bedroom, she found the washing basket near the door and her dress, which she had left at the bottom of the washing basket, was on top with bloodstains. According to PW4, the second appellant explained that she found a pressing iron, an empty carton for parking a fiidge, a chicken and meat missing. PW 4 stated that when he asked the second appellant how she knew that the deceased missed at 1200 hours, when she was herself at work, the second appellant retorted not to ask questions like a police officer. PW4 further explained that on 10th April 2000, in the company of the two brothers of the deceased and the appellants, met at Chelstone Police Station. At his request, he went with the appellants and the Soko Brothers to the appellants' house in Zambia Airways Compound, Chelstone. He checked outside the door. He saw bloodstains. According to PW4, when he asked about the bloodstains, the second appellant stated that it was floor polish. PW 4 checked the yard for footprints. There were none. Inquiries were made with the neighbours with no success. They went to the roadside. The Second appellant told them not to go towards the bush and that they should return back. PW 4 insisted that he would go to the place. He went into the bush with one of the Soko brothers. He noticed where people had passed. After walking five steps, he saw a fridge carton box. He lifted it and asked the first appellant if it was not the carton box that they were missing? The first appellant agreed that it was the carton box that they missed. But the second appellant denied that it was the one they were missing. But the first appellant insisted that the . number was the same. According to PW 4, they followed the track, which suggested that something had been pulled from where the carton box was found. Thereafter, they found a dead body in the thicket. This was the dead body of the deceased. The witness observed that the dead body was swollen with maggots coming from the mouth and from the cut on the forehead. The body was clad in a miniskirt and a waistcoat. He called the first appellant and asked him what the body was. The first appellant did not answer. The second appellant was at that time at the roadside. They all returned to Chelstone Police Station where he reported finding the deceased's dead body. Thereafter, they went to the scene with the Police. According to PW 4, the thicket where the deceased's body was found was about 30 yards from the houses. He also saw the dress which the second appellant said had bloodstains. The dress was yellow in colour. PW5, Paul Aaron Soko, the brother to the deceased, testified that on Friday 7th April 2000, he was working for Quick Save at Intercity Bus Terminal. He received a message through the Intercity Police Station that a lady had called from the American Embassy. He was given a telephone number to call. When he called the number in the afternoon, he got an answer from a machine. This witness explained that he had been told the name of the lady who had called as Sharon Muleba. The message was in connection with a burglary. When he went home, he informed his wife about a telephone call from the American Embassy. His wife explained that his sister Sarah Soko was working for Sharon Muleba who worked at the American Embassy. He sent his brother to Chelstone Police to verify. On Sunday, he went to the University Teaching Hospital to look for the deceased. On Monday, in company of PW4, he went to Chelstone Police where he met the appellants. From the Police, he went, in company of the others together with the appellants, to the house where the deceased used to stay with the appellants. At the appellants' house, he was shown a dress with bloodstains on the neck and on the knee. He went with the appellant to check with the neighbours while PW 4 and Kennedy Soko proceeded to the bush: While they were knocking at the neighbour's gate, PW4 called them and asked about the box, which they had been discussing. When they approached PW4, the first appellant stated that the box belonged to them, but the second appellant denied that it was not their box. The first appellant stated that the number on the box was the number on their fridge and that it was the box. According to this witness, PW 4 and Kennedy Soko went deep into the bush. After a short time, PW4 called him. When he went to where PW4 was, he saw the deceased's body lying face down with a hessian bag tied to the body. The body was clad in a skirt and waistcoat. The matter was then reported to the Police Station. The sixth witness, a Detective Superintendent,, testified of going to the scene where she took photographs of the scene. These were produced in court as exhibits. PW8, Assistant Commissioner of Police and Head of the Forensic Department, testified that on 10th April 2000, upon receiving a report of the discovery of a body of a young girl near Zambia Airways Compound in Chelstone, she organized her Crime of Scenes Officers, Photographers and Pathologists. They all proceeded to the scene of the suspected murder. They found a body lying in a small bush near a dumping site. The bush was about 60 meters from the residential houses. The body was lying head down with arms straight and decomposing. The face could not be identified. It had maggots. The body was wearing a bra and a black pant. These were intact. Photographs were taken. The body was identified by PW4, the grandfather of the deceased. A postmortem examination was conducted at the scene. They collected blood samples of the deceased. The Pathologists took swabs from the deceased's vagina. According to PW8, the vagina was intact. ·n had no bruises or inflictions or tom tissues. PW8 further testified that the area where the body was lying did not show that people were struggling. PW8 further testified that from the scene, they proceeded to the house where the deceased lived. The house was adjacent to the scene. It was empty. All rooms were swept clean. In the house, PW8 saw a bloodstain on the side of the hand washbasin in the bathing room. She also saw a strip of bloodstain at the edge of the bath tab. She instructed the Scenes of a Crime Officers to swab the bloodstains, which they did. The blood taken from the deceased and the vaginal swab were taken by the Pathology Assistant to the University Teaching Hospital. PW8 herself took swabbing from the house to the Forensic Laboratory at the Service Headquarters. The next day, PW9 brought to her a string of a bag of mealie meal, collected from the scene, which had bloodstains, a face towel, a cap, a blue T-shirt and a yellow dress. These items, together with the swabs from the house, were taken to the University Teaching Hospital. • Subsequently, they were delivered to a Public Analyst. PW8 testified that she waited for four weeks for the results to come. She was later infonned that they could not cany out an analysis because they had no reagency. Consequently, on I st May 2000, in company of PW9, she delivered the exhibits to the South African Police Forensic Department in Pretoria. These exhibits were; a yellow dress, a face towel, a blue T-shirt, a string of a bag of mealie meal, the vaginal swab and the two swabs collected from the house. She also delivered to South Africa the blood samples of the mother of the deceased because the initial blood sample of the deceased went missing at the University Teaching Hospital. PW8 also testified that i,nitially, results received from South Africa were that the yellow dress had a DNA strain of the deceased's mother. To find the full DNA profile of the deceased, the body of the deceased was exhumed to obtain other samples. This was done on 8th August 2000. The Pathologist cut part of the feincer. This was taken to South Africa on 27th August 2000. She waited for the results. But later PW7, from South Africa, informed her that he could not still get the deceased's full profile from the sample provided. Further blood samples were taken from the deceased' s father and from the second appellant. These were also subsequently delivered to the Laboratory in South Africa on 30th August 2000. The swabs and blood samples remained in South Africa, while the other items were produced as exhibits. PW8 was not cross examined. The evidence of PW9, also a Police Officer, was substantially the same as that of PW8. He confirmed seeing bloodstains on the hand basin and on the edges of the bathtub at the house where the deceased and the appellants lived. PW7, a Principal Forensic Analyst, bas_ed at the Forensic Laboratory, Pretoria, South Afiica, explained his qualifications and the various training programmes he has undertaken including DNA analysis of exhibit. materials. He testified that on I 8th April 2000, he received some exhibits at the Laboratory for him to do a DNA analysis to detennine whether the blood of the deceased marched any of the samples taken from the house. After the analysis, he made a Report. He produced the Report in court. He explained in detail what DNA is all about and the procedure that is carried out in conducting a DNA analysis. PW7 testified that he did a DNA analysis on the swab but he could not get any conclusive DNA result. He explained that this could have been due to deterioration of the samples. He :further testified that the semen showed that there was a possibility of sexual intercourse. The swab outside the wall yielded nothing. He also testified that there was no conclusive DNA from the swab on the sink including from scraping. He also said there was no blood found on the mop. The grain bag was positive for presumed blood but no DNA was obtained from the sample. There was no blood found on the T-shirt. There was also no DNA obtained on the pant samples. PW7 explained that he did not obtain a DNA result for the deceased herself to make a direct comparison with the blood sample on the dress. But he explained that after ruling out the possibility that the blood from the dress could have come from the suspect herself, he went on to do the parentage march. According to PW7, in order for the two samples to be marched, they had to have the same profile. Thus, when he looked at the profile of the dress and the control blood sample of the second appellant, they did not march. PW7 further stated that when one looked at the profile of the dress in contract parentage, whoever donated the blood on the dress must have been a child of the mother and the father of the deceased. The witness explained that I I the blood pattern on the dress showed that the blood was dropped on the dress and not that the dress was used to wipe the blood. This witness, too, was not cross-examined. According to the postmortem examination report, the deceased' s cause of death was mechanical asphyxia due to ligature strangulation, traumatic injuries of the right chest bleeding into pleural cavity and sexual assault. At the close of the prosecution case the court found that the appellants had a case to answer and put them on their defence. The first appellant elected to remain silent. The second appellant gave evidence on oath. In her evidence, she explained that on the 5th April 2000, she left home at 0640 hours. She reached the office at 0745 hours. She knocked off in the evening around 1700 hours. The second appellant testified that when she reported at work, she went straight to her office on the ground floor and immediately she was given some tasks to petform by her immediate supervisor. She confirmed that there was a time sheet at her working place to enter name, time reported, date and signature. This time sheet is kept up stairs. She testified that on that particular day, she did not sign the time sheet. She went straight to her office, expecting to sign in the course of the day. But because of the many tasks she was given, she did not manage to go up stairs to sign the time sheet. She explained that the procedure of signing the time sheet is a nonnal thing but that sometimes workers did not sign the time sheet. She further explained that on 5th April she did not go out of her office before knocking off. When she knocked off, she went home and arrived home around 1800 hours. At home she found her baby alone tied with a cloth around her neck. She found the kitchen door open and the household goods missing including kitchen utensils. In the deceased's bedroom items were scattered. In the other rooms items were missing. After 1 I seeing all this, she reported the matter to the Police. The second appellant explained that when she arrived home her husband, the first appellant was out. He catne around 1915 hours. She had not yet reported the matter to the Police. Both of them went to Police to report the matter. The report they made was the disappearance of the deceased and the missing items from the house and the blood stained dress found ~n top of the washing_ basket. According to her evidence, the Police told them to go and verify the items missing and then report back. The Police urged them to try to look around for the deceased. According to her evidence, the following day she informed the relatives about Sarah's missing. They followed up the matter with the relatives. On 9th April 2000, they went to the Police but Police advised them to look around. The second appellant explained that they shifted to Libala on 8th April 2000 because the Landlord wanted to renovate the house in Chelstone. According to her, the arrangements to shift were made a month before they shifted. She testified that one of the deceased's relatives found the deceased's body in the bush. The appellant explained that on Friday 14th April 2000, she was arrested for the murder of the deceased. She explained that she left home on 5th April 2000 at 0640 hours. She left her husband, the baby and the deceased at the house. The witness called on behalf of the appellants confinned that the second appellant was her workmate at the American Embassy. He confinned that the second appellant reported for duty on 5th April 2000. He gave her tasks to perform. She worked the whole day. On 6th April she reported for duty and I I I I' ii told her what happened, at her house. After a resume of the foregoing evidence, the learned trial Judge noted that there was only one critical issue in the case, namely: who killed Sarah Soko, the deceased? He further noted that the deceased was violently killed. He observed that there was no direct evidence that any of the two appellants was seen beating the deceased person to her death. He also observed that the prosecution case was based on circumstantial evidence. He then pointed out that in the face of the serious allegations, the first appellant, chose to exercise his constitutional right, to remain silent, while the second appellant testified that the deceased was killed by strangers and denied that the two could have killed the deceased. The learned trial Judge, after taking and considering all the evidence together, accepted the prosecution's submissions that the appellants, while acting together must have killed the deceased. The court then set out the circumstances leading to his finding that the appellants killed the deceased. The whole appeal, which is based on five grounds, is a criticism of the findings of the trial judge based on circumstantial evidence. We shall allude to the specific passage containing the findings later in our judgment. The first ground of appeal is that the learned trial judge errered both in law and fact when he convicted and sentenced to death the duo based on circumstantial evidence, which evidence was speculative, and or too remote and which evidence did not take into account the connection between the DNA evidence and accused persons especially in light of PW7's evidence on semens The second ground is that the learned trial judge erred both in law and fact when he dealt with the 2 appellants together, which position prejudiced the • appellants considering that the evidence in issue was that of circumstantial evidence· as opposed to direct thereby leading into inference of guilty, especially in light of the trial judge's, findings that: The death would not have happened in the thicket .... I have no reason to resist the inference that the deceased must have had normal sexual intercourse with some man before she was killed by the accused persons" and also in light of the inconclusive DNA test with regard to semens which did not connect the male appellant. The third ground is that the learned trial judge further erred in law and facts by conclusively arriving at the inference of guilty to murder basing on presumptions, such as blood on dress, and failure to mention lost items in the house, without taking the case out of the realm of conjecture, and without addressing his mind to any other possible inference other than that of guilty, and especially that none of the prosecution witnesses in their evidence even suggested the time of death of the deceased; nor that the two accfused persons were together between 0640 hours when accused 2 left home to about 1915 hours when accused 1 came back home. The fourth ground is that the Learned Trial Judge further erred in law when he totally rejected the defence of ALIBI put up by A2, without justification and which defence was so strong and the prosecution had failed to shake it in cross-examination, thereby giving credence to its standing. The fifth ground is that the trial Judge's conclusion that "The evidence shows to me that the TWO ACCUSED persons intended to kill the deceased . . . . . . . . . That the TWO ACCUSED persons therefore, had malice afore thought as defined in Section 204 of the Penal Code Cap.87 of the Laws of Zambia" TOTALLY BEGS justification. On behalf of the appellants Mr. Bwalya filed written heads of arguments based on grounds 1, 2 and 3. Mr. Chanda too, on behalf of the appellants, filed written heads of argument based on grounds 4 and 5. Both counsel augmented their written heads of argument with oral submissions. The summary of the written and oral arguments on ground 1 by Mr. Bwalya is that the court having drawn the irresistible inference that the deceased must have had a normal sexual intercourse with some man before the appellants killed her, it is surprising that the court, having acknowledged this fact at the same time, denied the possibility that the unknown person could have killed the deceased. Mr. Bwalya submitted that there was still need to know the man who had sexual intercourse with the deceased and that if the llllknown man turns out to be unknown, then a reasonable doubt to the inference that appellants killed the deceased remains lingering. It was the contention of Mr. Bwalya that the DNA tests were not successfully done because the prosecution could not preserve and keep the evidence properly but that the failure to preserve and keep the evidence properly should not be turned into a disadvantage to the appellants' case. Mr. Bwalya vehemently argued that by the prosecution losing the samples of evidence and by letting samples sent to South Africa deteriorate, thereby failing to give conclusive results as to the donor of the semen found in the birth canal of the deceased, the appellants' evidence was greatly prejudiced. Counsel submitted that the conclusion by the trial judge that the only reasonable inference was that it is the appellants who killed the deceased cannot stand in law. Bwalya criticized the evidence of PW8, the Assistant Commissioner, that the killing could not have been in the thicket~ that the samples collected had bloodstains when the evidence of PW7 was that there was no conclusive DNA from the swabs. Mr. Bwalya pointed out that there was a contradiction between the evidence of PW s 8 and 5 as to what the deceased was wearing when the body was found whether she was wearing a bra and a black pant according to PW8 or a black short and waistcoat according to PW 5. He submitted that this contradiction goes to show the possibility that the evidence was fabricated. Counsel submitted that all this was not taken into consideration but the court just believed the evidence of PW8 which evidence was speculative and too theoretical. Mr. Bwalya concluded his submission on ground I by pointing out that there was nothing in this case to exclude an inference favourable to the appellants as it is possible that the killing would not have happened in the house as can be seen from the evidence of PW7 since the person who had sexual intercourse with the deceased, whoever that is, had an opportunity to kill the deceased. Counsel cited a number of cases to this court on circumstantial evidence in support of ground one. The gravamen of the submission on ground two was that the trial judge erred when he dealt with the two appellants together, which position prejudiced the appellants considering that the evidence in issue was circumstantial as opposed to direct, especially in the light of the findings that death did not happen in the thicket; that the deceased must have had nonnal sexual intercourse with some man before she was killed and also in the light of the . inconclusive DNA test with regard to the semen which did not connect the male appellant. • It was Mr. Bwalya's argument that an analysis of the circumstances shows no direct or circwnstantial evidence that proves that the two acted together. Cowisel further argued that the trial judge did not indicate why he dealt with the two appellants together and if he indicated, he did not point at the evidence which proved that the two acted together or that that evidence proved the case beyond reasonable doubt that the two acted together. Cowisel submitted that this brings out another possibility, apart from the unknown man, that only one of the appellants could have killed the deceased, quickly dressed up the scene and sat to plan how to cover up this to the other appellant. Cowisel concluded his arguments on ground two by submitting that there was nothing in this case to exclude the inference that the two appellants might not have acted together in the commission of this offence and if at all, it is one of them who committed it but that in this case, there is total failure to prove that the two acted jointly and together. Counsel also made· references to some authorities in support of the arguments on growid two. On groWld three the argument centered on the inference of guilty of murder based on the bloodstain on the dress without mentioning the lost items in the house and without addressing other possible inferences, particularly that no prosecution witnesses suggested the time of the death of the deceased nor that the two appellants were together between 0640 hours, when the second appellant left home and 1915 hours when the first crune back home. Counsel argued that in a scenario of murder where appellants are said to have acted jointly together, the court must demonstrate by credible evidence that the two appellants had the same motive at the time of killing the deceased; that the two were at the scene of crime together and therefore had the opportunity of killing the deceased and that the two did commit the offence. It was counsel's submission on ground three that from the prosecution, no witness saw the appellants together between 0640 hours and 1915 hours and no witness stated the time of the death of the deceased. Counsel concluded the argument on ground three that the time of the death of the deceased was very crucial, yet the trial judge did not even attempt to analyze this anomaly which was too serious to be left hanging. The gist of Mr. Chanda's arguments and submissions on ground four was that the learned trial judge erred in rejecting the alibi of the 2nd appellant. He contended that the explanation of the 2nd appellant that she left home at 0640 hours and returned at 1915 hours should have been accepted, particularly there being only the circumstantial evidence. Mr. Chanda filed detailed written heads of argument on ground five based on malice aforethought, contending that the finding of guilty was erroneous. Both Mr. Bwalya and Mr. Chanda referred the Court to a number of authorities. Mr. Mchenga, on behalf of the State, supported the convictions. He submitted that unlike direct evidence of a witness, circumstantial evidence only proves facts relevant to a case and that it is proof of those facts that a Court makes an inference of the guilt of an accused. Mr. Mchenga further submitted that a conviction based on circumstantial evidence can be assailed either on many inferences being arrived at or evidence proving relevant facts being discredited and therefore relevant facts not established. Mr. Mchenga contended that the appellants had failed to show that there were many inferences or relevant facts discredited during trial. He submitted that due assessment of the facts of the case before Court can only lead to one conclusion that the two appellants murdered the deceased in this case. Mr. Mchenga contended that in assessing whether the only inference is one of guilt, one must examine the following facts proved at trial: the blood on dress found in the appellants' house which blood according to DNA tests could only have been donated by a child of the deceased' s parents; the report that 2nd appellant made to the police in company of I st appellant; the report to PW2, the deceased' s mother; the dress was only mentioned when the 2nd appellant was taken to Police when interviewed by PW9 on 10th April, 2000; report to the relative by 2n~ appellant suggesting that the deceased had stolen and run away; no sign of struggle at the scene where the body was found; whilst searching for the deceased, the 2 nd appellant discouraged PW 4 from checking the thicket where the deceased' s body was found; and the appellants moving from the house they stayed after the deceased was reported to have run away. Mr. Mchenga pointed out that these facts looked at individually may only raise suspicion; but that when dealing with circumstantial evidence, we must look at them as a whole. He submitted that if all the facts are looked at as a whole; there is no doubt that the two appellants were responsible for the death of the deceased. We have considered the evidence on record, the judgment and the submissions by the parties. Our understanding of the gist of the detailed arguments and submissions on behalf of the appellants on all the five grounds of appeal is that the Court having drawn an inference that the deceased must have had normal sexual intercourse before her death, there was need to know the man who had sexual intercourse with her and if the man turns out to be unknown, then a reasonable doubt to the inference that the appellants killed the deceased remains lingering. Mr. Bwalya argued that the DNA tests were unsuccessful, the prosecution evidence was contradictory; that the trial judge seriously erred when he dealt with the two appellants together as there was no evidence that they acted together; raisins the possibility that only one of the appellants could have killed the deceased. Finally, Mr. Bwalya contended that time of death was very crucial but was left hanging. We have considered these arguments. In the absence of direct evidence, as to who caused the death of the deceased, it is irrelevant in our view whether the man who had sexual intercourse with her was or was not known. The reasons for the failed DNA tests were explained as deterioration of the specimens. The appellants were dealt together because the two of them lived with the deceased during the relevant period. What role each one played was a matter of inference from all the proven circumstances including their conduct when the deceased disappeared. Indeed, time was crucial, but the evidence established that they lived with the deceased during the period she disappeared. The 1st appellant in face of facts not in dispute elected to remain silent, which he was entitled. The bloodstains found in the house remained wiexplained. The appellants moved out of the house they lived with the deceased. The house was found clean. Whether the landlord gave them notice to move is a matter of credibility. We have also examined the submissions by Mr. Chanda on alibi and malice aforethought. We are satisfied that on the evidence, the issue of alibi did not arise because the allegation is that the death of the deceased occurred on a date unknown but between 5th and I 0th of April 2000. The arguments of Mr. Chanda on the other hand confine themselves to 5th April between 0640 hours - 1915 hours when the 2nd appellant was at work. As to malice aforethought, we are satisfied that whoever inflicted the injuries on the deceased, must have had malice aforethought. As there was no direct evidence to the killing of the deceased, the learned trial judge relied on circumstantial evidence. There is no magic formula or definition in the expression "Circumstantial evidence". Simply put, it is any fact (sometimes called an "evidentiary fact'' or fact relevant to the issue) from the existence of which a judge may infer a fact in issue. The question here as we see it is this: Can it be said that there existed such circumstances as rendered the killing of the deceased by the two appellants certain and left no room for a reasonable doubt? The learned trial judge answered the question in the affirmative. This is how he answered it: "Tliese are the circumstances which conclusively point to the inference tl,at the Accused killed the deceased. The deceased was the Accused persons live-in maid. On the fateful day the deceased disappeared According to DNA analysis the deceased blood was found on a dress which the second Accused in her own evidence admitted was her dress and was not worn by any other person than herself. After the incident the Accused persons went to report the matter to the Police Station, with the second Accused doing the talking like what happened in the court. In her report to the Police the second Accused made no mentio11 of the blood stained dress. The Accused persons did not mention to tl1e Police the alleged stolen items. WJ1en told to go back to their house to make the list for the allegedly stolen items and bring it to the Police the Accused did not return to the Police l until taken there by the anxious relatives of the deceased some three or four days later. In the meantime, the Accused persons hastily shifted from the house they lived with tl1e deceased in Che/stone to a11other house not in the same township but to an entirely different township called Libala. The explanation for the shifting was that Landlord wanted to renovate the house. Although the second Accused found it necessary to call a witness to say that she was at work during the day on s'h April, 2000 she did not find it necessary to call the Landlord to tell the Court of the renovation story. The Accused persons did not tell the deceased's mother about lier disappearance until after 3 days. Contrary to what Mr. Kearnis submitted, the Accused persons were not in the forefront of going to the Police to urge them to look for tl,e deceased the deceased having disappeared from their house after allegedly stealing their property. The deceased who is alleged to have stolen and ran away in fact left her own clothing in the Accused's house. It is not normal that the deceased having stolen would run away without carrying her own property. The deceased's body was found in a thicket near the Accused's house. As Mr. Mchenga rigl,tly submitted it is beyond reasonable doubt that the deceased was killed in tl1e house because someone could not have killed the deceased outside and take blood stained dress back i11 the house. The bloodstains on tl,e dress do not suggest that the deceased was wearing the second Accused's dress. The theory by Mr. Kearnis that the deceased could 1 have cut herself with a razor blade and her blood dropped on the dress is far fetched Again as Mr. Mclienga rightly submitted the injuries the deceased suffered clearly show to me that the deceased was badly beaten by more than one perso11. I visited the scene where the deceased body was found and the house where the Accused persons used to live with the deceased. The area is highly built up area and the deceased could not have been beaten to death in the bush some 60 or 70 metres from the houses in broad daylight without attracting people's attention. In my judgment all these facts point to the inescapable inference that the two Accused persons, for whatever offence the deceased committed in the house, beat up the deceased and strangled her u11til she died and under cover of darkness dumped the deceased's body in the nearby thicket, dressed the scene and sat to plan on how to cover up this heinous crime. The evidence of semen in deceased's birth canal does not suggest to me that the person who deposited the semen in her birth canal killed her in the thicket Indeed, there is evidence from Assistant Commissioner Nancy Kaona Chingaipe that the place where the body was shoveled, no evidence of a struggle having taken place there. There is also evidence from the Assistant Commissioner that the deceased's vagina was intact Even the postmortem report does not say that the deceased's vagina had injuries. On the evidence I have no reason to resist the inference that the deceased must had a normal sexual intercourse with some man before she was killed by tl,e accused persons. The evidence shows to me that the two Accused persons intended to kill the deceased The injuries clearly show that-the two Accused persons intended to cause the deceased grievous /,arm. The two Accused persons therefore, had malice aforethought as defined in Section 204 of the Penal Code Cap 87 of the Laws of Zambia. I am satisfied that the prosecution have proved tl,eir case beyond all reasonable doubt In the result, I find each accused guilty of murder and convict him as charged. We agree with Mr. Mchenga that the circumstances must not be looked at in isolation but as a whole. The deceased was a live-in maid. Bloodstains were seen by prosecution witnesses in a house the appellants lived with the deceased. There was no explanation how blood should have been found in this house where the two appellants lived together with the deceased. Indeed, they hurriedly moved from the house after the deceased disappeared. The 1st nd appellant, who appellant in the face of all this elected to remain silent. The 2 was allegedly at work th~ whole of the 5th April, did the reporting and did all the talking at the Police station and in Court. We accept that the circumstantial evidence implicating the appellants with the killing of Sarah was overwhelming. They had the opportunity. The circumstantial evidence was so strong that the only irresistible and inescapable inference was that the two appellants, for whatever reason murdered Sarah. We find no merit in their appeals against convictions. We therefore dismiss their appeals . ........ . ~ ............... .. E. L. Sakala CHIEF JUSTICE ........ ~ ............ . S. S. Silomba SUPREME COURT JUDGE C. S. Mushabati ACTING SUPREME COURT JUDGE