Mumba v People (Appeal 50 of 2017) [2018] ZMSC 43 (5 June 2018)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) APPEAL NO. 50/2017 BETWEEN: GIDEON MUMBA APPELLANT AND THE PEOPLE RESPONDENT CORAM: MAMBILIMA CJ, WOOD AND MALILA JJS; On 10th April, 2018 and 5th June, 2018 For the Appellant : For the Respondent: Mr. C. Sia pinda, Legal Aid Counsel Legal Aid Board Mrs. R. N. Khuzwayo, Chief State Advocate JUDGMENT MAMBILIMA, CJ, delivered the judgment of the Court. CASES REFERRED TO: 1. BWALYA V THE PEOPLE (1975) ZR 227 2 . KATEBE V THE PEOPLE (1975) ZR 13 3 . EMMANUEL PHIRI V HE PEOPLE (1982) ZR 77 4. MACHIPISA KOMBE V THE PEOPLE (2009) ZR 282 5 . BWALYA V THE PEOPLE (1975) ZR 125 6 . SOLE SIKAONGA V THE PEOPLE (2009) ZR 192 LEGISLATION REFERRED TO: a) The Penal Code, Cap 87 as amended by Act No. 15 of 2005 and Act No.2of2011 b) The Criminal Procedure Code Cap 88 of the Laws of Zambia c) The Juveniles Act Cap 53 of the Laws of Zambia This is an a ppeal again s t a judgm ent of the High Court, upholding the d ecision of the Subordinate Court sitting a t Chingola, in which the Appellant wa s convicted of one count of defilement contrary to Section 13 8 (1) of THE PENAL CODEa1. Particulars of the offen ce wer e that the Appellant, on 6th of September, 2011 , jointly and whilst acting toge ther with p e r s ons unknown , unlawfully and carnally knew the prosecutrix, a child under the a ge of 16 years . The prosecution's cas e was solicited from five witne sses who included the prosecutrix, Pa tricia Mwila aged fifteen (PWl) a grade 8 pupil. She lived with h er a unt, Rosemary Chintu (PW3) at New Plots, Lulamb a in Chingola . Around 0600 hours on 6 th September , 2 011 , PWl wa s on h e r way to sc hool. Whe n she r eached a pla ce called Kankoko , she wa s tra pped by a rope on h er left leg as a result of whic h s h e was hois ted up and b ecame sus p ended upside d own . She allege d that the Appellant, in the company of two friends, came on the scen e and h elped h er down . Tha t for some unknown reason, they b egan to b eat h er. The beating wa s so severe that she lost consciousness. When she came round, she found herself in the hospital. She had been raped. Meanwhile, PW2, Brian Mwape, was tending to his plot in Kankoko when he got information that there was a dead person by the road side. He went to check, only to find that it was a school girl. She was half naked and without an underpant. Her school bag and books were strewn all over the scene. When he touched her, she produced a sound and he realised that she was still alive. With the h elp of other people, h e rushed her to the hospital. PW 3, who thought that h er niece was at school, got a message around 10.00 hours on the m aterial date, that h er niece was at the hospital. She rushed there only to find that her niece was seriously ill. She h ad been beaten and raped. She went to report the matter to Chiwempala Police Station. She was given a m edical report which was duly completed by the medical authorities. She told the trial Court that the prosecutrix was 15 years old, having been born on 6 th December 1995. PW 1 stayed in the hospital up to 19th September, 2011. On 22nd September, 201 1, PW 1 went to Lulamba market, in the company of h er father and PW 3. She saw the Appellant and identified him as one of the people who beat h er up on 6 th September 2011. She told the Court that she knew the Appellant very well as she used to see him around before the incident. A m e dical doctor , Kambidiki Mutombo (PW5) told the trial Court that PW 1 was brought to the hospital in an unconscious state around 1200 hours on 6 t h September 20 11. Her face, lips, tongue, n eck and lower jaw were swollen and she was bleeding from the mouth. She had bruises on her back and vagina and h e r hymen was broken by something that was forced into the vagina. She was bleeding, but not from m enstruation. H e concluded that PW 1 h ad been defiled. Upon being identified by PW 1, the Appellant was arrested and c harged with the offence of d efile m ent. Under warn and caution, h e d enied the charge. H e was tried and , upon the close of the prosecution's case, was found with a case to answer and put on his d efence, but elected to remain s ilent. He, however, called his father (DWl) and elde r sister (DW2) as his witnesses. Both testified that the Appellant was at h ome at the time that the alleged offence was committed. Upon evaluating the evidence that was before him, the learned trial Magistrate found as a fact that while PW 1 had been trapped and was hanging upside down , she clearly saw the three people who came to her r escue, but later beat h e r. That she contemporaneously pointed to one of the attackers when she saw him at the market. He ruled out the possibility of an honest mistake. He was satisfied that with the help of others unknown , the Appellant carried out the gruesome a ttack on PWl. The Court dismissed the Appellant's alibi as an afterthought in that it was n ever raised at the police station to enable the police to investigate it. Also, the trial Magistrate discarded the evidence of OW 1 and DW2 because , b eing the Appellant's relatives , th ey were witnesses with an interest to serve. The Appella nt was thus found guilty and convicted. The Appellant appealed to the High Court against his conviction. His contention, in the main , was that the trial Court disregarded his alibi. He argued that it was the prosecution's duty to negative the defence. The other issue was that the trial Court convicted him on the uncorroborated evidence of the prosecutrix, when there was n o evide n ce whatsoever to support PW 1 's identification of the Appe llant as the assailant. The learned Judge in the High Court held , among others, that although PW 1 was a single identifying witness, her evidence could be relied upon because she had known the Appellant prior to the a ttac k and that the incident happened at 06. 00 hours in the morning when visibility was good. That PWl, the refore, had an opportunity to see the Appellant when he came to h er rescue only to attack h er in the end. The Court held that the learned Magistrate correctly ruled out the possibility of an honest mistake on the ground that PW 1 clearly saw her assailants. That she was able to recognize the Appellant and d escribed what he wore on the m aterial day. At the end of the day, the learne d Judge upheld the conviction of the a ppellant by the trial Court and sentenced him to life impris onment with hard la bour. Aggrieved with this determination, the Appellant has now a ppealed to this Court against both conviction and sentence. He has a dvanced two grounds of a ppeal. The first ground of app eal is that his conviction is unsafe on account of the p ossibility of an honest mistake of identification by a sole identifying witness . The lea rned Counsel for the Appellant argued that PW 1 could not h ave known who defiled h er given th e traumatic circumstan ces of the attack and the fact that she was unconsc10us . He contended that in that state, the issu e of who d efiled h er is a m atter of s p ecula tion or circumstantial evide nce s ince anyon e could h ave raped her. He furthe r submitted that the Court, in ruling out the possibility of an h on est mistake, did not apply its mind to the circumstances in which observation of th e attackers was made. That in the case at hand, th e eviden ce of identification was fragile and therefore required som ething more, such as the Appellant b e ing seen by a third party in th e area where th e crime was committed or recovery of the work suit. Further, t h a t poss ibility of an honest mistake cannot be ruled out in the absen ce of som e connecting link between the Appellant and the d efilem e nt, which would h ave m a d e a mistaken ide ntification too m u ch of a coin cidence . To buttress his argument , Counsel relied on the case of BWALYA V THE PEOPLE1 in which we h eld th at usually, in th e case of an identification by a s ingle witn ess, th e pos sibility o f an h ones t mis take cann o t b e ruled out unles s ther e is a connecting link b e tween the a ccused and the offen ce . Counsel furth er s ubmitte d that in dismissing the Appellant's d efen ce of alibi a s an a fterthought, the trial Court did not a ddress its mind t o the onus on the prosecution to n egative the d efe n ce. He argued tha t the re was no onus on the Appe llant t o es tablish his alibi. For this submission , h e relied on the case of KATEBE V THE PEOPLE2 . Counsel further submitte d that the prosecution s hould have m a d e use of Section 2 10 of the CRIMINAL PROCEDURE CODE (CPC) CAP 88bl t o r ebut the eviden ce of an alibi . This Section reads a s follows: - "2 10. If the accused person adduces evidence in his defence the introducing new matter which prosecution could not by the exercise of reasonable diligence have foreseen , the Court may allow the advocate for the prosecution to adduce evidence in reply to contradict the said matter." the advocate for Coming to the second ground of a ppeal, the Appellant argues t h a t the sente n ce of life imprisonment imposed on him was excessive and wron g in principle . He argued tha t as a first offender , h e d eserve d lenien cy. At the hearing of the appeal, Mrs. Khuzwayo , Chief State Advocate , submitted that the State was not supporting the conviction in this case on the ground that the identity of the Appellant was not corroborated. That there was need for corroboration of both the sexual act and the identity of the Appellant. That only PWl places the Appellant at the scene and that this is the p erson she did not even know before. We h ave anxiously considered the evidence on record and the submissions of Counsel. The thrust of the Appellant's submission is that the identification evidence before the Court was fragile because the crime was committed in tra umatic circumstances s u ch that PW 1 could not clearly identify h er attackers . That the Court did not rule out the possibility of an honest mistake by applyin g its mind to the circumstances in which the observation of the attackers was made. According to the Appellant there was need for 'something more' to support identification. As stated above, the State did not support the conviction arguing that being a sexual offence, corroboration was required both as to the comm1ss1on of the offence and identity of the Appellant. In the case of MACHIPISA KOMBE V THE PEOPLE4 , we defined corroboration as independent evidence which tends to confirm that the witness is telling the truth w h en h e or she says that the offence was committed and it was the accused who committed it. The rationale for the principle is to eliminate the danger of false implication. The victim, in this case, was a child aged 15. Before 2011, the law, in Section 22 of the JUVENILES ACTci , r equired th at in criminal matters, any evidence of any child of tender years called as a witness should b e corrobor ated 'by some other material evidence implicating .. ' the accu sed. Corroboration was thus required as a matter of law. This Section was amended in April 201 1 to read:- "122. Where, in any criminal or civil proceedings against any person, a child below the age of fourteen is called as a witness, the Court, shall receive the evidence, on oath, of the child if, in the opinion of the Court, the child is possessed of sufficient intelligence to justify the reception of the child's evidence, on oath, and understands the duty of speaking the truth." (underlining ours) One of the provisos t o Section 122 states that if the evidence admitted by virtue of this Section is on behalf of the prosecution, then the accused shall not be lia ble to be convicted unless such evidence 1s corroborated by some other material evidence implicating th e accu sed. By this amendment, therefore, evidence of a child below the age of fourteen must be corroborated as a matter of law. When the prosecutrix gave evidence in this case, s h e was aged fifteen. In its s ubmission , not to support the conviction, the State appears to have glossed over the provisions of Sec tion 122 of the JUVENILES ACTcl. As a general rule , evidence of a prosecu trix in sexual offences also require s corroboration as a matter of practice. This is intended to guard against false implication. It is competent for a Court , on special and impelling grounds , to convict on uncorroborated evidence if it finds that the identification of the accused is reliable and the possibility of an honest mistake has b een ruled out. We h ave h eld , in a plethora of authoritie s tha t odd coincidences or an opportunity to commit the offen ce, among others , c an provide the r equired corrobora tion. In the 1975 case of KATEBE V THE PEOPLE2 we h eld that lack of a motive for a prosecutrix to d eliberately and dishonestly make a false allegation against an accused person can amount to a 'special and compelling ground' to justify a conviction on uncorroborated testimony. In 1983, we echoed this position in the case of EMMANUEL PHIRI V THE PEOPLE3 • We held inter alia, that:- " (ii) A conviction may be upheld in a proper case notwithstanding that no warning as to corroboration has been given if there is in fact exists in the case corroboration or that something more as excludes the dangers referred to (iii) It is a special and compelling ground, or that something more which would justify a conviction on uncorroborated evidence, where , in the particular circumstances of the case there can be no motive for a prosecutrix deliberately and dishonestly to make a false allegation against an accused." In the instant case, it is not in dispute that there was corroboration on the first elem e nt; that of th e commission of the offence. It is not in d ispute that PWl was sexually assaulted. There is evid e n ce of the doctor and the m edical report to prove that PW 1 was defiled. The contention however is on th e second elem ent; that of the ide ntity of the offender. It is a principle of law that where there is no corroboration, the Court ought to be cautious and warn itself of the danger of false implication. Failure to warn itself is not fatal. As stated above, a conviction can s till be sustained if there is 'something more' or 'a special and compelling ground' which excludes the danger of false implication. As alluded to above, 'a special and compelling ground' could b e where there can b e no motive for the prosecutrix to make a false a llegation against an accused . A p eru sal of the record shows that the learned trial Magistrate did warn himself of the danger of convicting the accused on the uncorroborated evidence of the Appellant. He stated, at page 20 of the record of appeal:- "From the onset, I remind myself that complainants in sexual cases particularly female complainants have been found by experience to be capable of giving false evidence purely to implicate the accused in a crime which did not occur. As a result of this, the rules of practice require that a Court warn itself against the danger of convicting an accused on the uncorroborated evidence of the complainant." Upon evalu ating the evidence, the trial Court found as a fact that PWl was trapped 'legs up and head down '. That she clearly saw the three p eople who came to h er rescue. The Court accepted the evidence of the doctor, PW4, that despite her ordeal, it was possible for PW l to identify h e r attackers even though she had been unconscious for som e time . The Court also relied on the evidence of PW2, the aunt to PW 1 that the moment PW 1 saw the Appellant, she contemporaneously pointed at him as the atta ck e r. The Court concluded that there was no possibility of an hone st mistake. In the High Court, before sentencing the Appellant, the learned Judge rightly observed that the identification of a single witness must be approached with caution and that such evidence must be weighed against o ther factors such as lighting and visibility. In the instant case, we note that the a ttack occurred around 06.00 hours when there was sufficient light for PWl to observe h er attackers even b efore she lost consciousness. The attackers approach ed as good Samaritans to h elp h er down the tree but only attack h e r when she was safely down . We agree that PWl h a d a good opportunity to s ee t h ese people. PW 1 told the Court that she knew the Appellant b efore. Also , it is on r ecord that when she saw the Appellant at the market, PW did not h esita te but contemporaneously pointed at him. There is , therefore, nothing in the circumstances of this case from w hich it can be infe rred that PWl falsely implicated the Appellant. In our view, this constituted 'a special and compelling ground' which entitled the trial Court to convict on the uncorroborated evidence of a single witness and discount fal se implication. The arguments by the Appellant that the trial Court e rred are , therefore , unsustainable. The Appellant has also argued that the trial Court did not address its mind to the onus on the prosecution to n egative a defence of alibi that wa s raised by the Appellant. The record, however, sh ows th at t h e t rial Court considered the d efence of alibi that was raised by t h e Appellant. It took guidance from our d ecision in th e case of KATEBE V THE PEOPLE 1 where we held that:- "Where a defence of alibi is set up and there is some evidence of such an alib i, it is for the prosecution to negative it . There is no onus on the accused person to establish his alibi. " The Court discounted the defence as an afterthought because it was never raised a t the Police Station to en able th e police to investigate it and the two witnesses calle d by the Appellant to support his alibi were his father and s ister, and according to the Court, th ey were relatives with a possible interest to serve . In the case in casu , the evidence of alibi was adduced from DWl and DW2 the Appellant's fathe r and sister. We agree with the trial Court that they were witnesses with an interest to serve. The defence of alibi was only raised when the Appellant was conducting his defence. We cannot fault the trial Court for concluding that the d efence was r aised as an afterthought. The Court correctly warned itself on the danger of relying on such evidence. As we s t ated in the case of BWALYA V THE PEOPLE1 ; simply sayin g "I was in Kabwe at the time" d oes n ot p lace a duty on the police to investigate an alibi. In the cir cumstances, Section 210 of the Criminal Procedure Code cannot be relied upon. From the foregoing, we find no merit in the first ground of appeal. It is dismissed. The appe al against conviction is hereby dismissed. The second ground of appeal is against sentence. The Appellant has argued that the sentence of life imprisonment imposed on him was excessive and wrong in principle in that the Appellant was a first offender who deserved lenience. This Court has , in a plethora of cases, held that an Appellate Court will not lightly interfere with the discre tion of the trial Court on sentence, unless t h e sentence comes to it with a sense of shock. In the instant case, the Appellant was given th e maximum s entence of life imprisonment. In the learn ed Judge's view, the Appellant, although a first offender , did not d eserve leniency because , according to the Judge, the facts of the case were "too ghastly and the Appellant was callous and unsympathetic in his attack on the defenceless girl". In the case of SOLE SIKAONGA V THE PEOPLE6 we explained the rationale of the minimum sentence of 15 years and maximum of life imprisonment for defilement in the amended • Section 138 of the PENAL COD E al. We h eld that the legislature had given th e Court the freedom to impose different sentences according to the facts of each case. The facts , in this case, show that the prosecutrix was brutally and savagely beaten. This is evident from the testimony of PW 2, who told the trial Court t hat when he was informed that there was a d ead body by the roadside, it was only when he touched the body that he discovered that there was still some life in the body of the girl. She had been raped and left for d ead. PW4 , the doctor , told the Court that PWl was a dmitted to the hos pital in an 'unconscious state. ' These facts are gruesome and show that the girl was left for d ead. Against these grizzly facts, the sentence of life imprisonment does not come to us with a sense of shock. We h a ve n ot been persuaded to interfere with the sentence imposed by the High Court. The a ppeal against sentence fails. We find this entire a ppeal to h ave no m erit . It is dismissed. ~----..::::- ~ .. ~ LC. Mambilima CHIEF JUSTICE AM.~ SUPREME COURT JUDGE M. Malila ~SUPREME COURT JUDGE 17