Frederick Kabungo v People (APPEAL NO. 40/2019) [2019] ZMCA 424 (20 August 2019)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA ( Criminal Jurisdiction) APPEAL NO. 40/2019 BETWEEN: FREDERICK KABUNGO fJ AUG 2019 APPELLANT THE PEOPLE RESPONDENT Coram: Makungu, Mulongoti, Siavwapa. J. J. A On the 25th day of June, 2019 and 20th day of August, 2019 For the Appellant: Mrs. N. K. Liswaniso Legal Aid Counsel - Legal Aid Board For the Respondent: Mrs. F. Nyirenda - Tembo - National Prosecution Authority JUDGMENT MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. Kabala flung a & another v. The People ( 1981) ZR 1 02 2. George Musupi v. The People (1978) ZR 271 (SC) 3. D. P. P v. Kilbourne (1973) 1 ALL ER 440 4. Mwambona v. The People (1973) ZR 28 (C. A) 5. Green Musheke Kuyewa v. The People (1996) ZR 14 (C. A) 6. Chimbini v. The People (1973) ZR 191 7. Boniface Chanda Chola & 2 others v. The People SCJ No. 16 of 1989 8. Chitalu Musonda v. The People SCZAppeal No. 138 of2014 9. Webster Kay Lumbwe v. The People (1986) ZR 98 10. Noah Kabombe v. The People SCZ Judgment No. 11 of 2002 Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia 1.0 INTRODUCTION On 24 th May, 2018 the Hon. Madam Justice Y. Chem be of the High Court convicted the appellant of one count of murder, contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia and sentenced him to death. Particulars of the offence were that the appellant, on 25 th September, 2017 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia, did murder Lastone Kasanda Kabwe. This appeal is against both conviction and sentence. 2 .0 EVIDENCE ADDUCED IN THE COURT BELOW 2.1 PW2, Lazarus Mbulo in the company of PW3, Millard Chibuye Mboloma and the appellant were working at the coal yard of Neelkanth Lime Limited in Ndola on 25 th September, 2017. At about 11 :30hrs the appellant informed PW2 that he was going for lunch. PW2 and PW3 offloaded a truck and realized that the appellant had driven the Front End Loader to coal yard 3 and parked it at the corner. When PW3 went to coal yard 3, he saw the appellant scoop some coal with the machine twice and bury something that he was unable to see. Later, he saw the deceased who was -J2- wearing a reflector and a white helmet coming towards the JCB Truck, the Front End Loader. He then saw the deceased reach the point where the appellant had buried something. The deceased exhumed a black pipe which he lifted and thereafter bent down and started exhuming other things. PW3 then ran away and only returned about three minutes later, after being called by PW2 to go and see what had happened. He found that the appellant had pinned down the deceased using the metallic bucket of the Front End Loader. The Front End Loader was described as a robust heavy plant equipment mounted on four wheels of about 2 meters in diameter. The appellant chased them and went and parked the machine five meters away from them. He later told them that he had done something wrong and they should protect his job and life. The appellant threatened to kill them and commanded them to go for lunch as he went back in to the Front End Loader. 2.2 After lunch, PW3 went and reported the matter to PWl, Emmanuel Katongo, the Human Resource Administrative Manager. Later, PWl and PW3 in the company of some -J3- security officers proceeded to the site where they unearthed two 20 litre plastic containers, a hose pipe, a white dirty helmet and a black MTN cell phone. 2.3 The matter was reported to the police who found the Front End Loader parked in front of the workshop but the appellant was nowhere to be seen. The appellant was called on the phone by the workshop Manager Brivesh Shah and since the phone was on speaker, PW3 heard the appellant saying that he had gone to visit his sick mother. Later attempts to call him were futile as his phone was off. 2.4 Upon further investigations, the body of the deceased was found by the Excavator Operator PW 4 Teddy Nkandu Kabongo, in a sack, buried in lime powder at the waste lime dump. 2.5 PW2 and PW3 spent a night in police custody. 2.6 Later, PWl and PW6 Detective Chief Inspector Ericka Chingaipe and others were led by the appellant to the place where he had buried the body. 2.7 On 28 th September, 20 17, PWS, Humphrey Mwaba, the deceased's uncle and a certain police officer, witnessed the -J4- postmortem done on the body of the deceased at Ndola Central Hospital. The post mortem report showed that the deceased died of "severe multiple mechanical trauma to the body." PW6 produced all the exhibits identified by the prosecution witnesses. 2.8 In defence, the appellant testified that on the material day, he was operating a Front End Loader at the coal yard at Neelkanth Lime Limited in Ndola. He was working with PW2 and PW3. He later went to coal yard 3 to offload some sacks. After a while, PW2 and PW3 went and joined him at coal yard 3. When they proceeded to get some sacks, he continued operating the machine and as he was reversing, he felt like the machine had tilted to one side. He stopped the machine to check what was causing the imbalance and it came to his attention that he had run over a person. He then called Ronald Ngolomina whom he used to call Kanono and explained to him that there was an accident. PW3 advised him to take the body to the dumpsite and run away. He acted accordingly. He stated that he was unable to report the matter because his boss was not there. -JS- 2.9 The appellant's fur ther evidence was that h e was called by Brigesh who asked him where h e was and h e informed him that h e had gone to visit his sick uncle. From there, h e proceeded to the farm on Chelengwa roa d where h e stayed with his uncle and told him about the accident. On 6 th October, 201 7 h e was a ppreh ended by the police at his mother's house and taken to Ndola Central Police station. When interrogated, he denied the allegation of murder. He later proceeded with the police officers to the site where the incident happened . Later, he led them to the place where he had buried the corpse. He denied th e allegations of having chased PW2 and PW3 and threatened them with death . He stated that he had seen the h elmet exhibited in court under the machine at the m aterial time. It was also his testimony th a t h e was trained to operate the m achine and in case of an accident, it was his duty to report the matter to anyon e in the vicinity . 3 .0 DECISION OF THE COURT BELOW 3. 1 Upon evalua tion of the evidence before her, the trial judge found that it was undisputed that the d eceased died of -J6- severe multiple mechanical trauma to the body, caused by the Front End Loader which was driven by the appellant. 3.2 On the issue of PW3 admitting to the arresting officer that he was told to falsely implicate the appellant, she did not agree with defence counsel that a person who has been told to lie and briefly detained by the police for questioning falls in the category of a witness with an interest of his own to serve. She was of the view that such a testimony would merely be rendered unreliable and that it would be different if the assertion was that he was an accomplice. 3.3 The learned trial judge further found that the fact that the appellant did not report himself to the police is a confirmation that the crush was not accidental. That there were odd coincidences which pointed to the appellants' motive. The Judge referred to the case of Kabala llunga & Another v . The People f1J on the principle that odd coincidences may be taken as evidence. The appellant ought to have known that running over a person with a Front End Loader would cause grievous harm and for that reason, he had malice afterthought. In the premise, she convicted him and sentenced him to death as earlier stated. -J7- 4 .0 THE APPEAL 4.1 The a p pellant has raised three grounds of appeal which are framed as follows: 1. The lower court erred in law and fact when it held that the prosecution had established malice aforethought and proved beyond reasonable doubt the case of murder against the appellant. 2. The lower court erred in law and fact when it held that PW2 and PW3 being briefly detained did not make them witnesses with interests of their own to serve. 3 . The lower court erred in fact and law when it held that the appellant's reaction did not measure up to the normal reaction of a person who had accidentally run over someone. 5 .0 THE ARGUMENTS 5.1 At the h earing of the appeal, counsel for the appellant, Mrs. Liswaniso relied on the written heads of argument. It was subm itted under ground one that to prove malice aforethought, the prosecution must show that the accused had the actual intention to kill or cause grievous harm or death to the deceased or knew th at his actions were likely to -JS- cause death or grievous harm to someone else. Counsel went on to state that it was disputed that the appellant knew that the deceased was near the Front End Loader and as such, malice aforethought was not proved. PWl described the Front End Loader as a h eavy machine and it was possible for the operator not to see a person near it if h e did not check in the mirror. On this basis, it was submitted that the appellant did not have clear sight of what was under the Front End Loader and it was possible for him to run over someone without seeing him. 5 .2 It was submitted further that the evidence before the lower court was inconclusive as to whether the appellant h ad the motive to harm the deceased. PW 1 stated that he was not aware of any quarrel between the appellant and the deceased. PW2, only saw the appellant burying something in the coal. The eviden ce of PW6 was unreliable because it based on what PW2 and PW3 told him that the deceased was attempting to syphon fuel from the Front End Loader. 5.3 In arguing ground two, it was submitted that PW2 and PW3 had a motive to lie because they did not want the company -J9- to compensate the estate of the deceased in the even t that the death was found to be accidental. PW2 and PW3 were both detained by the police as suspects in this case. In cross - examination, PW2 conceded that he would not like to be fired and would do his best to keep his j ob. Reference was made to the case of George Musupi v. The People f2J where the court stated as follows: " ... The tendency to use the expression 'witness with an interest (or purpose of his own to serve)'carries with it the danger of losing sight of the real issue. The critical consideration is not whether the witness does in fact have an interest or a purpose of his own to serve, but whether he is a witness who, because of the category into which he falls or because of the particular circumstances of the case, may have a motive to give false evidence. Once in the circumstances of the case it is reasonably possible that the witness has motive to give false evidence, the danger of false implication is present and must be excluded before conviction can be held to be safe." -JlO- 5.4 Mrs Liswaniso, went on to refer us to the case of DPP v. Kilbourne 131 where it was stated a s follows: "The categories of suspect witnesses are not closed; for instance, today the same principles must be applied to the approach to a witness with a possible bias, such as a relative or an employee. " 5.5 Counsel also cit ed the case of Mwambona v. The People f4J wherein it was h eld among other things that: "A witness with a bias is not to be regarded as a witness with a purpose of his own to serve, but his evidence should be treated with caution and suspicion and failure to do so is a misdirection which m ight result in the conviction being quashed unless the court can apply the proviso." 5 .6 In arguing ground three, Mrs. Liswaniso stated that the lower court erred when it found th at the appellant was guilty because of his conduct aft er th e fact: n ot reporting the m atter to the police after th e body was dumpe d and fleeing the scene . That this was contrary to the case of Green Musheka Kuyewa v. The People f5J where it was -Jl 1- stated that an appellant taking to his heels when an innocent person would not do so, cannot be taken as conclusive evidence of his guilt. It was on this basis that counsel argued that the appellant's conduct was not short of a hypothetical reasonable man. 5. 7 In response, Counsel for the state, Mrs. Tembo argued grounds one and three together as follows: PW3 saw the appellant driving the Front End Loader and burying something in a heap of coal. The appellant was well aware of the materials that he was concealing. The appellant intentionally pinned the deceased down and this was supported by his own evidence appearing on page 33 of the record that; "You know how that man was." The fact that th e appellant was only apprehended three weeks after the ordeal is also corroborative evidence of his guilt. 5.8 Mrs. Tembo went on to refer us to section 204 of the Penal Code which provides for the elements that constitute malice aforethought. She accordingly submitted that the appellant ought to have known that death or grievous harm would result from pinning the deceased down with the bucket of -J12- the Fron t End Loader. The appellants' defence of "accident" cannot be accepted because if it were indeed an accident, he would h ave had no problem reporting the matter to his employer or the police. The only reasonable inference that can be drawn from the circumstances is that the appellant had malice aforethough t. To fortify th is argument, she relied on the case of Chimbini v. The People. f6J 5 . 9 In reaction to the second ground of the appeal, counsel submitted that the learned trial judge was on firm ground when sh e found that PW2 and PW3 had no interests of their own to serve. She relied on the case of Boniface Chanda Chola & 2 others v. The People f7J where it was held as fo llows: "A person is not to be treated as an accomplice unless he is participes criminis in respect of the actual crime charged. Prosecution witnesses are participes criminis in respect of the actual crime charged and, therefore, accomplices if, on any view, they are principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and -J13- abetting (in the case of misdemeanours). They also include receivers of stolen property and, generally, witnesses who took part in and were privy to the crime to which they depose against the accused." 5 . 10 According to Mrs. Tembo, PW2 and PW3 do not fall in any of the categories stated above. The assertion that both of them lied to protect their employer from incurring damages, is not supported by any evidence on record and is speculative. What is clear is th at they worked closely with the appellant and maintained their version of what transpired that day. 5.11 In the alternative, Mrs. Tembo argued that should the court find that the said prosecution witnesses had interests of their own to serve, it should also consider that their evidence was corroborated by PWl. The lower court was on firm ground when it found that there were odd coincidences that were not explained. The case of Kalaba llunga and Another v. The People f1J was relied upon. She therefore urged us to dismiss the appeal for lack of merit. 6 .0 QUESTIONS RAISED In this appeal we deal with the following questions: -J14- 1. Whether PW2 and PW3 were witnesses with an interest of their own to serve? 2 . Whether malice aforethought on the part of the appellant was established? 3. Whether the appellant conducted himself like an innocent and reasonable man after the alleged accident? 7 .0 DECISION OF THIS COURT 7 . 1 We have consider ed the record of appeal and the written heads of argument filed by counsel for both parties. The three gr ounds of appeal are interrelated and therefore we sh all address them collectively. 7.2 We note that th e lower cou rt did on page 14 of the judgment a ddress its mind to th e question whether PW2 and PW3 were suspect witnesses. The learned Judge acknowledged the fact that PW3 admitted that th e arresting officer told h im to falsely implicate the appellant. However, she was of the view that a person who has been told to lie does not fall in the category of witnesses with interests of their own to serve and that his testimony may just be rendered unreliable . She further found that the brief detention of -JlS- PW2 and PW3 by the police did not make them witnesses with an interest of their own to serve. 7.3 At page 15 of the Judgment the Judge stated as follows: "Further the evidence on record shows that PW3 is the one who actually reported the matter to PWl. The evidence does not show that he was implicated in any way in the killing of the deceased. The accused's own evidence was that he was working alone in the Front End Loader when the deceased was crushed. There was thus no reason for PW3 to falsely implicate the accused. From the evidence of PW2, during trial, he did not try to embellish his story which was corroborated by the accused himself concerning the fact that the accused had told PW2 and PW3 that what he had done was a mistake. . . . The version of events as seen by PW2 and PW3 were in material respects similar to the accused." 7.4 The above-mentioned findings were based on the evidence on record and therefor e the lower cou rt cannot be faulted. -J16- Both PW2 and PW3 were not participes cnminis or accomplices and we are fortified by the cases of Borniface Chanda Chola & 2 others v. The People supra and Chi ta lu Musonda v. The People. f8J 7.5 The lower Court at pages 16 and 17 of the judgment rightly found to the effect that the death of the deceased was not caused by an accident for the following reasons: Just after he h ad pinned down the deceased, he told PW2 and PW3 that he had done something wrong and they should keep it a secret so that his life and job could be safe. He also told them that they knew how the deceased was. The a ppellant's testimony was that the deceased was moving or gasping when he got to him and instead of getting h elp, he concluded that he was dead. The only inference that could be drawn from this behavior is that the appellant did not want the deceased to live. The appellant fled the scene after concealing the body in the lime dump and remained in hiding until he was apprehended about two weeks later. His behavior did not show that it was an accident. The two 20 litre containers and a hosepipe were also concealed in a heap of coal in the vicinity where the -Jl 7 - appellant was working and where the deceased was killed. This it was found, lent credence to the evidence that "the appellant intentionally killed the deceased because he was caught stealing diesel from his machine." 7.6 The foregoing findings were made on firm ground but there was no cogent evidence that the appellant was caught stealing diesel from the machine. We therefore set aside that particular finding as it was made under a misapprehension of the facts. However, the containers and horse pipe were buried under very suspicious circumstances. It seems to us that the appellant killed the deceased because he was about to unravel his unacceptable plans. 7.7 We dismiss the appellant's counsel's arguments that the appellant possibly did not have a clear sight of what was under the Front End Loader because he was able to drive the machine without a navigator to direct him and he was able to see the fuel containers, helmet and cell phone which he buried using the bucket of the same machine. -J18- 7.8 Our firm position 1s that malice aforethought was established beyond any r easonable doubt and therefore the lower court was on firm ground when it made that finding. 7. 9 Under the circu mstances, the lower court cannot be faulted for dismissing the appellant's explanation for being implausible and improbable. She also cannot b e faulted for finding PW2 and PW3 to be credible witnesses. We cannot interfere with her findings on credibility of the witnesses because she had the opportunity of seeing and hearing them, which we do not have. Furthermore, we are not convinced that h er findings on credibility were erroneous. We are fortified by the case of Webster Kay Lumbwe v. The People f9J where the Supreme Court held as follows: "An appellate court w i ll not i nterfere wit h a trial court's finding of fact on the issue of credibi lity unless it is clearly shown that the find ing was erroneous." 7.10 On the issue whether the sentence should be interfered with, the Supreme Court has in a number of authorities including the case of Noah Kabombe v. The People r10J h eld -J19- that: "A sentence can only be interfered with if it is w rong in principle and shocking to the court. " The capital punishment imposed on the appellant herein does not come to us with a sense of shock because there were no extenuating circumstances. A hypothetical reasonable man 1n employment or in the appellant's community would not have behaved in th e manner that the appellant did. 8.0 CONCLUSION 8.1 All in all, the appeal is devoid of merit and dismissed. Conviction and sentence are both upheld. C. K. MAKUNGU COURT OF APPEAL JUDGE ,,.... J .z. MULONG I M. J. SIAVWAPA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J20-