Francis Lemmy Chichiku and 3 Ors v The People (Appeal 168-171/2018) [2019] ZMCA 446 (21 May 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL 168-171/2018 BETWEEN: FRANCIS LEMMY CHICHIKU MUBANGA CHANDA CHILESHr / RODGERS KAWANDA REAGAN KALUMBA AND THE PEOPLE ,.....-,rl-lUO~ I- '}..- ( "tr r r- -:AJ.1 ~ ctiURT OF As,1-,;. ;. J/4t '-. / r ~ __ _ ~ \ . ) ,q:i~ _ ,_ .. ..__ - ~~~~I_L REG10rn~1/ / ......._ . · .~.~i-'1 .,,./ ; ~ .. :, 2 1 M1-n LU ::J \\~ L _ ----~- 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT RESPONDENT CORAM: CHASHI, LENGALENGA AND SIAVWAPA, JJA On 23rd April and 21st May, 2019 FOR THE APPELLANTS: MR. M. MAKINKA OF LEGAL AID BOARD FOR THE RESPONDENT: MRS. A. KENNEDY MWANZA, NATIONAL PROSECUTION AUTHORITY JUDGMENT SIAVWAPA, JA, delivered the Judgment of the Court. Cases referred to: 1. Chigowe v The People ( 1977) ZR 21 2. Zonda (1963-64) Z & NRLR 94 (CA) This is an appeal against the Judgment of the High Court by which the Appellants were convicted of one count of Aggravated Robbery and two counts of murder and each sentenced to life imprisonment and death in respect of count 1 and counts 2 and 3 respectively. The brief facts before the trial Court were that on 22nd of January 2016, at Mkushi in the Mkushi District of the Central Province of the Republic of Zambia, the Appellants jointly and whilst acting together did employ violence to steal a laptop computer and cash from Mkushi Secondary School. That in the course of the robbery they did murder two named security guards. None of the prosecution witnesses witnessed the robbery and as such none could identify any of the Appellants. It was the evidence of PW5 which gives an insight into when and how the Appellants were apprehended. According to this witness, who is a police officer, he received a phone call from a member of the public on 1st February 2016 informing him that he had seen four people he strongly suspected to have been involved in the aggravated robbery and murder cases that had taken place in the area. The informer further told him that the four suspects were at Winston Bar where they had parked a blue Toyota Spacio Car with registration mark ADC 3914. J2 Acting on that report, he booked to the place in company of other police officers where they found the blue car parked outside while the suspects were drinking alcohol. He requested the suspects to accompany them to the police station but that they first resisted before they co-operated. Upon searching the car they recovered two T-bars, a crawl bar, 2 knives and a pick. During trial, PW8, a police officer, testified of how he was tasked to conduct a scene re-construction by the Appellants who were in custody. According to this witness, he verbally warned the Appellants who chose to lead him to the scene for re-construction one at a time and that each Appellant led him to the entry point and demonstrated how they committed the crime. The Defence objected to the voluntariness of the demonstration resulting in the holding of a trial within a trial. During the trial within a trial the Appellants alleged torture before being taken to the crime scene and exhibited medical reports of injuries and treatment. In his ruling exhibited at pages 190 to 191 volume one of the Record of Appeal, the learned trial Judge, held that the re construction of the crime scene was free and voluntary. J3 This is notwithstanding the medical reports which were issued about two weeks after the scene reconstruction. It is also not in dispute that the Appellants were only subjected to short verbal warn and caution statements on the day they were taken to the scene of the crime for reconstruction demonstrations. In his ruling, the learned Judge did not give the reason for rejecting or ignoring the evidence of torture. We will revisit the scene reconstruction evidence later in the Judgment as it has a huge bearing on the outcome of this appeal. Having admitted the scene reconstruction evidence, the learned Judge proceeded with the main trial with PW8 resuming the witness box. The rest of his evidence was to affirm the voluntariness of the reconstruction of the scene following verbal warn and caution statements extracted from the Appellants. PW9, the arresting officer's testimony was that upon rece1v1ng a report of the crimes, she and other police officers went to the scene. Thereafter, members of the public were placed on alert and to be on the lookout for suspects. On 1st February 2016, seven days after the offence, she received information from members of the public that four suspicious looking men were in town at Winston bar. She and other police officers went to the bar and apprehended the four men whom they found drinking alcohol outside the bar. The rest of the evidence relating to the arrest is already in this Judgment except to note that in the course of her testimony, the prosecution J4 did attempt to introduce confession statements thereby prompting an objection from the defence. Wishing to rely on the said confessions, the prosecution applied for a second trial within a trial. When the matter was called for the commencement of the trial within a trial, both parties submitted that they intended to rely on the evidence adduced in the first trial within a trial as the same had also covered the warn and caution statements the prosecution sought to introduce in the second trial within a trial. Both parties filed written submissions with the prosecution submitting that since the warn and caution statements sought to be introduced were taken on the same day as the scene reconstruction demonstrations were done, it followed that they too were free and voluntary in light of the court's finding in the first trial within a trial. The defence relied on the earlier arguments that the allegations of torture had barely been denied and not negatived beyond reasonable doubt as per the case of Chiqow e Vs The People1 . In his ruling exhibited at page 223 of the Record of Appeal, the learned trial Judge held that the prosecution had not adduced any evidence in the first trial within a trial to prove that statements were recorded from the Appellants. The intended confession statements were accordingly ruled inadmissible. J5 The rest of PW9 's evidence was about the scene reconstruction and the identification of the implements recovered from the car the Appellants were travelling in. The Appellants testified on their own behalf and called no witnesses. In their evidence they all admit being at Winston Bar on 1st February 2016 from where they were apprehended. They each denied having been in the company of the other Appellants whom they say they met in cells. All the Appellants said they were residents of Ndola having travelled to Mkushi on various business missions. They all denied being involved in the commission of the offence they were convicted of while alleging severe torture. After evaluating the evidence before him the learned Judge rendered a Judgment and convicted all the Appellants on all the counts and sentenced them to life imprisonment for Aggravated Robbery and death on each count of murder. The sole basis upon which the convictions are founded is the scene reconstruction evidence which was ruled admissible for being free and voluntary in the trial within a trial. In his Judgment, the learned Judge demonstrated his sole reliance on the scene re-construction evidence by re-producing his rulings in the trial within a trial and the aborted second trial within a trial. This was after he had, at page J 11 of the Judgment or page 319 of the Record of Appeal in lines 18 to 23, admitted that the only evidence before him was that of confessions. At page 313 of the Record of Appeal in the Judgment, lines 24 to 29, the trial Judge states as follows; "After learning the testimonies of PWB and Detective Sergeant Vera Mu.zyamba (PW9) and the testimonies of the accused person, I come to the conclusion that the reconstn.tction of the crime scene or demonstration, in which the accused persons were invited to participate and photographed accordingly after being warned and cautioned, was done freely and voluntarily and therefore admissible". We observe that in determining the voluntariness of the scene reconstruction evidence which amounts to confessions, the learned Judge focused on the verbal warn and caution statements that the Appellants gave to PW9, the arresting officer. It would seem to us that the learned Judge totally ignored the allegations of torture which were supported by medical reports obtained two weeks after the demonstrations. J7 The learned Judge, in affirming his reliance on his earlier ruling in the trial within a trial as to the voluntariness of the demonstrations also placed reliance on the evidence of PW4. It is however noted that PW 4, was a teacher who was found at the scene when the Appellant were performing the demonstrations. The learned Judge ignored the fact that no allegations of torture were made as being done during the demonstrations. The evidence adduced by Appellants is that they were subjected to torture from the date of their apprehension on 1st February 2016 until 6 th February 2016, the day they were taken for the scene re construction demonstrations. PW4 is therefore, not a witness as to whether or not the Appellants had been subjected to torture before they were taken to the school for demonstrations. We state as above in view of the following statement in lines 13 to 20 of the Judgment at age 322 of the Record of Appeal. "It is my considered opinion that the reconstruction of the scene of crime or demonstration by all the accused, one after the other was freely and voluntarily done as categorically stated by PWB and PW9, and independently confirmed by PW4, a teacher at Mkushi Secondary School who witnessed the demonstration. PW4 confirmed that none of the accused was beaten". Clearly the learned Judge erroneously placed the alleged torture at the scene of the crime during the demonstrations, which, is unlikely as no police officer would do that while members of the public are watching. They only do it in their secret chambers. It would also, in our view, be naive to place so much credibility on PW8 and PW9, who are the suspected perpetrators of the torture. It would also seem to us that in ignoring the torture allegations the learned Judge did not pay much attention to the high standard of proof placed on the prosecution to prove the voluntariness of a confession in a trial within a trial. The cases of Zonda (1963-64) Z & NRLR 94 (CA) 2 and Chigowe both speak to the above burden and standard of proof. Had the learned Judge addressed his mind to the above stated factors, we have no doubt that he would have found that the prosecution had not discharged its burden as to the allegations of torture prior to the demonstrations. With no other evidence connecting the Appellants to the Commission of the offence, it would appear that the learned trial Judge found an easy way by holding the scene-reconstruction as free and voluntary and therefore admissible. It is however, important to note that in the ruling on the aborted second trial within a trial, the learned Judge rejected the purported J9 confession statements on account that in the first trial within a trial, no evidence of warn and caution statements as having been obtained from the Appellant's had been adduced. This, is in sharp contradiction to the learned Judge's finding in his ruling on the first trial within a trial that there was evidence of verbal warn and caution statements having been made prior to the scene re-construction demonstrations. This is notwithstanding that the arresting officer, PW9 and the scenes of crime officer, PW8, had indicated that the warn and caution statements for the scene reconstruction and the ones intended to be introduced in the second trial within a trial had been taken at the same time. This is as recorded from page 230 line 2 3 to page 2 31 line 7 of the Record of Appeal Volume two as follows; Q. "Ok you can just continue from where you left off, starting your sentence afresh, of course. Starting the sentence afresh, maybe you can just start with the date when this was happening? The date of the warn and caution". A. (PW9) "It was on the 6 th February 2016 when the warn and caution was administrated from the no second accused, male Chanda Chileshe Mubanga. The accused person Chanda Chileshe Mubanga explained to me all what happened." In lines 16 to 24, the conversation continued as follows; Q. What date? A. The date was 6 th February Q. And what happened? A. I was doing the warn and caution statement Q. Who did you? A. I record from Chanda Mubanga Chileshe Q. Is it only from Chanda Mubanga Chileshe you recorded? A. And from the four The above extracts from the record clearly indicate that both sets of warn and caution statements relied upon in the trial within a trial ruling and those declared inadmissible in the aborted trial within a trial were administered on 6 th February 2016, the date the scene re construction demonstrations were done. In our view, this horrific cnme was poorly handled by the investigative agency of the state as a result of which the trial court had no option but to place reliance on evidence of scene reconstruction which, in the circumstances we find to have been erroneously admitted. Jl 1 In the view we take, this appeal is allowed. We accordingly quash the convictions and set aside the sentence . We further order that the Appella t liberty forthwith. J. CHASHI COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE ............... J ................... . M. J. SIAVWAPA COURT OF APPEAL JUDGE J12