Mumba v People (Appeal 191 of 2016) [2018] ZMCA 252 (26 June 2018)

IN THE COURT OF APPEAL FOR ZAMBIA CAZ APPEAL NO. 191/2016 J1 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) BETWEEN: GIFTMUMBA AND THE PEOPLE CORAM: Chashi, Siavwapa, Ngulube, JJA On 27th and 28th March, 2018 and 26th June 2018. For the Appellant: 0. Mudenda, Legal Aid Counsel, Legal Aid Board. RESPONDENT l I ' I For the Respondent: M. M. Bah Matandala, Deputy Chief State . . Advocate, National Prosecution Authority. JUDGMENT NGULUBE, JA, delivered the Judgment of the Court. Cases referred to: 1. Jutronich Schulte and Lukair vs. The People (1965) ZR l'Q (C. A) 2. Sikaonga vs. The People SCZ Number 20 of 2009 3. Partford Mwale vs. The People CAZ Appeal Number 8 of '<;JO 16 4. Richard Daka vs. The People SCZ Judgment Number 33 lof 2013 5. Modester Mulala vs. The People Appeal Number 51 of 2013 6. Phillip Mungala Mwanamumbi vs. The People (2013) SCZ Judgment I I Number 9 7. Emmanuel Phiri vs. The People (1982) ZR 77(S. C) 8. Zulu vs. The People (1973) ZR 326 (S .. C) 9. Sakala vs. The People (1980) ZR 205 (S. C) J2 10. 11. Gaba vs. The People (1966) ZR 113 Daka vs. The People Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Juvenile Act, Chapter 53 of the Laws of Zambia. The appellant was convicted of the offence of Indecent Assault on a female contrary to Section 137(1) of the Penal Code,1 by the Subordinate Court sitting at Lusaka. The particulars of the offence being that the accused (appellant) on the 3rd of November, 2015 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia unlawfully and indecently assaulted the Prosecutrix. On committal to the High Court for sentencing the appellant was sentenced to twenty-two years imprisonment with hard labour with effect from the date of his arrest. The case for the Prosecution centred on the evidence of five witnesses, PWl, the Prosecutrix, PW2 Michelle C:tiileshe, PW3, I ' Queen Mwamba, PW4, Rebecca Sianga, the Prosebutrix mother and PW5, Mercy Kabwiko, Inspector, the arresting o~ficer. J3 The evidence of PW 1, was that on a date that she could not remember in 2015, she was playing at her aunt Queen's house where she always played when she was called by Uncle Gift, the accused who took her in the house and locked the door. PWl testified that the accused took her to the bedroom where he covered her eyes with a cloth and took off her clothes. She stated that she felt something like a metal being inserted in her private parts and she screamed. PWl stated that when she screamed, the accused stopped what he was doing and told her to get dressed. He also threatened to cut off her head if she told anyone what had happened. PW 1 testified that after she left the accused's house, she was in pain but did not tell anyone about what happened for some time. Three days later, she told her Aunt Queen (PW3) what transpired and she was subsequently taken to the hospital where she was medically examined. PWl identified the accused in the dock as I the Uncle Gift that she had been referring to. PW2, a child aged 8 years testified that one day, she was playing with her friend PW 1 and Bridget when the accused sent Muzo to buy super dip. PW2 testified that the accused ulen took PWl into Muzo's house and soon thereafter, she heard PWl scream. I I I I I J4 PW2 stated that she informed PW3 about it but her aunt told her to forget about PW 1 's scream. PW3, aged 15 years testified that she noticed that PWl was limping one day and she. asked her what the problem was but PW 1 stated that there was nothing. PW3 further testified that PWl later told her that the accused had defiled her, but asked PW3 not to tell anyone about it because the accused had threatened to cut off her head. PW3 then informed the Prosecutrix's mother about· what she had been told earlier and they proceeded to report the matter to the Police in Garden Compound. PW3 identified the accused in the dock as the person who PWl stated had defiled her. She testified that before PWl was taken to the hospital, she examined her private parts and found some bruises and something that looked like semen. PW4, PWl 's mother testified that when she returned home from work one day, she was informed by PW 1 that thej accused had taken her into the house and did "bad manners" to her. PW4 testified that she reported the matter to the Police and was issued I with a medical report form. PWl was subsequentll examined by the doctor at the University Teaching Hospital and upori JS obtaining a medical report, she took it to Emmasdale Police Station. PW5, Mercy Kabwiko, Inspector, the arresting officer testified that she received a complaint from PW4 to the effect that her daughter ' ' I had been defiled. She interviewed the accused, who was already in Police custody, charged and arrested him for the offence of Indecent Assault contrary to Section 137(1) of the Penal Code 1. In his defence, the accused gave evidence on oatp and denied indecently assaulting PWl. He stated that PWl alcused him of indecently assaulting her because he is known as 'Uncle Gift by many children in the area. The accused called Matias Mumba, DW2 to further his defence. DW2 testified that on the 27th of October, 2015, his brother, the accused herein had gone to the Copperbelt and he was asked to look after his brother's house. However the trial Magistrate rejected DW2's evidence and ruled I that it be struck off the record, because it was allegedly full of inconsistencies. The Learned trial Magistrate after reviewing the evidence, was satisfied that it had been established and proied that the accused indecently assaulted PWl. The court foknd that the ' J6 evidence of PWl was corroborated by that of PW2, her friend. The court found that there was a clean thread of consistent evidence and further found that the medical case of indecent assault against the accused. proved the i repo'.rt I The court found that the accused did not tell the cchurt the truth ' I in his defence and concluded that the vital ingrl:'.dients of the offence of indecent assault had been established and proved by the Prosecution. The court found that the testimon~ of PWl was ' I corroborated by that of PW2. The court rejected the defence and the accused wa~ found guilty I as charged and convicted accordingly. On committal to the High I I Court for sentencing, the appellant was sentenced to twenty-two I years Imprisonment with hard labour, hence the appeal to this Court against conviction and sentence. On behalf of the appellant, Mr 0. Mudenda, filed two grounds of appeal as follows - i I . Legal Aid Counsel 1. The lower court erred in law and fact by sentencing the appellant to twenty-two years for the offenc1 of indecent assault, which sentence is above the maxijum sentence authorised by law. J7 2. The lower court erred in law and fact by not considering the fact that there was no evidence on record that proved that the Prosecutrix was indecently assaulted. Counsel filed written heads of argument based' on the two I grounds. The summary of the said arguments on ground one is that the appellant was convicted of the offencd of Indecent Assault on a female, contrary to Section 137(1) of The Penal Code 1 , and was sentenced to twenty-two years Imprisonment I with hard labour when Section 137(1) of The !Penal Code 1 I I , provides that the maximum sentence for the offence of indecent assault on a female is twenty years. The case of Jutronich Schulte and Lukair vs. The People1 where the court of Appeal held that- " In dealing with appeals against sentence, the appellate court should ask itself these questions - 1. Is the sentence wrong in principle? 2. Is the sentence so manifestly excessive as to induce a sense I of shock; and 3. Are there any exceptional circumstances which would render it an injustice if the sentence was not reduced?" JS The case of Sikaonga vs. The People2 , was cited where the Supreme Court gave guidelines for the approach to be taken when imposing sentences in defilement cases as follows - " an ordinary case of defilement will only attract the minimum sentence of 15 years imprisonment. However, where the accused is found to have infected the victim with a sexually transmitted disease, the sentence will certainly attract a more severe sentencing above the minimum sentence of 15 years." The appellant's Counsel urged the court to exercise leniency and reduce the sentence from that of twenty-two years to a more appropriate sentence supported by the law. In response to ground one, the Learned Deputy Chief State Advocate, Mrs Matandala on behalf of the People conceded that the sentence that the lower court imposed was above the mandatory maximum sentence and submitted that the sentence of twenty-two years is therefore wrong in principle. The Learned Deputy Chief State Advocate prayed that ground obe be allowed because it has merit. The arguments for the appellant on ground two le that there was no evidence to support the conviction. The Leatned Counsel ; I I I I ' ' i I J9 submitted that the voire dires that was conducted prior to the receipt of the evidence of PWl and PW2 individually were defective and further went on to state that this rendered the proceedings a nullity as there is no corroborative evidence connecting the appellant to the commission of the offence. The Learned Counsel stated that the court, in relation to PW 1 after purporting to conduct a voire dire stated that ~ " very clear, alert and sharp little girl" The Learned Legal Aid Counsel stated that there was no finding by the court in relation to the voire dire that was conducted in relation to PW2. The case of Partford Mwale vs. The People3, was cited where ' the court stated that the trial court did not make a finding as to whether the witness understood the duty of speaking the truth. The case of Richard Daka vs The People4 in which the Court I stated that the requirements of the law under ~he Juveniles (Amendment) Act, 2011 is that the court should prlvide a proper I I voire dire in relation to a case where the court finds that the child understands the importance of temng t+ truth. The Learned Counsel submitted that since the voire dire conducted l JlO was defective, he urged the court to allow this ground of appeal. Learned Counsel cited the case of Philip Mungala Mwanamum.bi6 where the court gave guidelines on how not to conduct a defective voire dire. The Learned Counsel for the Appellant urged the Court to note that there were witnesses who have an interest to serve and further find that there were inconsistences in the manner in which the alleged assault was reported. Citing the case of ' Modester Mulala vs. The People5 , the court held that "the motive to give false evidence on the part of the witnesses must be a reasonable possibility that PW3 had the motive to give false evidence and that her testimony does not corroborate that of the prosecutrix on the indecent assault." The Learned Legal Aid Counsel submitted that since the voire dires that were conducted prior to the receipt of thd evidence and ! PW2 were found to be defective, there is no evidencJ to prove that it was the appellant who indecently assaulted PWl. He submitted that the Prosecution failed to establibh a link or . I identity of the person who allegedly indecently alsaulted PWl and submitted that there was no evidence on relord to prove I i I I I Jll beyond all reasonable doubt that the appellant indecently assaulted PWl. Counsel urged the Court to acquit the appellant accordingly. On ground two, the Learned Deputy Chief State Advocate submitted that the evidence before the trial court proved that PWl was indecently assaulted by the appellant. Counsel referred the Court to Section 122 of The Juveniles (Amendment) Act Number 3 of 2011 which provides that- "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 to speak the truth." Provided that - {b) where evidence admitted by virtue of this action is given on ' behalf of the Prosecutrix, the Accused shall not bf( liable to be convicted of the offence unless the evidence is coloborated by some other material evidence in support thereof implicating the I I accused" J12 The Learned Deputy Chief State Advocate submitted that the voire dire conducted in relation to the Prosecutrix was not defective as the lower court on page 6 of the record of appeal made a finding in accordance with the provisions of Section 122 of The Juveniles Act, as the court found that PW 1 :was ' I : "very clear, alert and sharp little girl." I i ! The Learned Deputy Chief State Advocate urged \the Court to accept the evidence of PW 1 as the voire dire that the trial Magistrate conducted was not defective. Counsel further submitted that the court did not rriake a finding in relation to the testimony of PW2 and concurred with the Learned Counsel for the appellant that the voire dire that was conducted in respect to PW2 was defective and that her evidence be disregarded as the voire dire that was conducted fell short of the standard provided for in Section 122 of The J~veniles Act. The Learned Deputy Chief State Advocate cited the base of Philip Mungala Mwanamumbi vs. The People6 on the issue of the defective voire dire. The Learned Deputy Chief S ate Advocate submitted that the evidence of PWl, PW2, PW4 and PW5 is sufficient to prove a case against the appellant that there is no J13 evidence on record that shows that PW2 and PW4 were witnesses who could have had a motive to falsely implicate the appellant. The Learned Deputy Chief State Advocate submitted that the evidence of PW3, PW4 and PW5 corroborates the evidence of PWl on the commission of the offence and the identity of the offender. i Counsel cited the case of Emmanuel Phiri vs. The People7 where the Supreme Court held that - "in a sexual offence, there must be I I I corroboratiorl. I I of both the commission of the offence and the identity of the offender in order to eliminate the danger of false implication." The Learned Deputy Chief State Advocate submitted that there is evidence on record warranting the conviction of the appellant as the identity of the appellant was established by PWl, PW3 and PW4 to whom the early complaint was made. The respondent submitted that their duty had been discharged and urged the court to uphold the conviction as the second grojnd of appeal had failed. We have carefully considered the evidence on record, the Judgment of the trial court and the submissions by both Learned I Counsel. i • i ' . I I ' I I I I J14 Although the first ground of appeal was argued first, we intend to consider the second ground of appeal first for the reason that it is the evidence of PW 1, the prosecutrix which is most crucial and needs to be corroborated. The Learned Legal Aid Counsel's submissions i:h support of I I I ground two were based on The Juveniles (Amendment) Act . Number 3 of 2011 which deals with the evidence of a child of tender years. Section 122 of Act Number 3 of 2o 11 provides that- .1 "122. Where in any criminal or case proceedings against any person, a child below the age of fourteen is called as a witness, the court shall receive evidence, on oath, of the child if, in the opinion of the court the child is possessed of sufficient intelligence to justify the reception for the child's evidence on oath, and understands the duty of speaking the truth; Provided that - (a)Jf, in the opinion of the court, the child is not possessed of sufficient intelligence to justify the reception lf the child's evidence, on oath and does not understand the duty of ' JlS speaking the truth the court shall not receive the evidence, and (b) Where evidence admitted by virtue of this Section is given on behalf of the Prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating the accused." The above-captioned section provides that a child of tender years is one that is below the age of fourteen years and can only give evidence on oath if the court is satisfied that the child is possessed of sufficient intelligence to justify the reception of the child's evidence. The child must, in the opinion of the court, understand the duty of speaking he truth. The evidence of a child of tender years also requires corroboration by some other material evidence in support thereof implicating .the accused. I The case of Zulu vs. The People8 is still good law oh the issue of ' ! courts conducting a voire dire to the acceptable stEindard. The case sets out the correct procedure of how to conduct a voire dire. In the case of Sakala vs. The People, the sypreme Court stressed that not only must the record show that a voire dire has I I J16 been conducted but also the questions asked, the answers received and the conclusions reached by the court. The means of arriving at a ruling in a voire dire and the conduction itself are important. In the case of Goba vs. The People 10 , the Supreme held that - " .... Where no proper voire dire is carried out, the eiYidence of the witness should be discounted entirely." In the present case, the Learned trial Magistrate did not record the questions when he conducted the voire dire in !respect PW 1. Further, the court omitted to state its full bnding after conducting the voire dire. . The voire dire in this case is found at page 6 of ~he record of I I I i I ! I I I I I appeal. The court then stated that the child was - "very clear alert and sharp little girl." Clearly, the trial court did not make a finding as to whether PWl understood the duty to speak the truth. In the case of Richard Daka vs. The People 11 , the Supreme Court adequatbly addressed the amendment and we are satisfied that the voire :dire that was I conducted in this case was defective. It follows thaJ the evidence J17 of PWl was not evidence against the appellant. The evidence of PW 1 shall be totally discounted because it was received without conducting a proper voire dire. The evidence of PW2 also a child was received after the court conducted a voire dire but did not l indicate the questions nor the answers that were received during the conducting of the voire dire and no conclusion was arrived at. Since the voire dire that was conducted is defective, PW2's I I evidence is also discounted and cannot corroborate! that of PW!. The appellant was convicted based on the evidenc~ of PWl and I that of PW2, another child witness. PWl and PW2's evidence has , I been discounted and no other evidence was led which can secure a conviction in this matter. There being no eviden2e against the I appellant, we allow ground two of the appeal. On ground one, it is evident that the court that I I ' I I ! sentenced the ' ' appellant misdirected itself by sentencing the a~pellant to a sentence above the prescribed mandatory maximum sentence. It is worth mentioning that the Learned High Colrt Judge in sentencing the appellant went beyond the maximunt sentence for indecent assault which is twenty years imprisonmept. with hard ! • J18 labour which was wrong as it was above the maximum mandatory sentence for the said offence. In conclusion, the appellant having succeeded on both grounds of the appeal, the total effect is that the entire appeal succeeds. The conviction is accordingly qua and set aside and the appellant J. CHASHI COURT OF APPEAL JUDGE •••..........•••••....... . •••.........•••....... J. M. SIAVWAPA COURT OF APPEAL JUDGE .........•••.•...........•••..........•••••.. P. C. M. NGULUBE COURT OF APPEAL JUDGE