Phiri v People (Appeal 150 of 1984) [1987] ZMSC 38 (17 November 1987)

in THE SUPREME COURT OF ZAMBIA Appeal Mo. 150 of 1984 HOLQEM AT LUSAKA (Criminal Jurisdiction) k r GIFT PHIRI v THE PEOPLE Appellant i Respondent / CORAM’ Sllungwe, 8. J., Mgulube. O. C. J, and Gardner, J. S., 17th1November. 1887 ..... V. Henriques. Senior Legal Aid Counsel, for the appellant K. C. Chanda. Senior State Advocate, for the respondent JUOGMEMT Sllungwe, C. J., delivered the judgment of the court. The appellant was charged with the murder of one Wanki MulopuKaurtv on $apt«Ur^;3« 1993. at Uscta, contrary to section 200 of the Penal Code. Cap. 146. At his trial, it transpired that the only evidence upon which he could be convicted was his alleged confession statement. He was in fact convicted and sentenced and given the mandatory sentence of death. The alleged confession statement was the subject of a trial within a trial. The appellant disputed the alleged confession statement as having been made voluntarily and stated: that he had been beaten to make him confess. This assertion by the appellant was rejected by the learned trial Judge who misdirected himself by placing the burden of proof on the appellant. It is not for the accused person to prove that he did not make a confession statement, or that the confession statement he made was involuntary^ On the contrary, it is for the prosecution to prove beyond a reasonable doubt that' the confession had been made voluntarily by the accused. Because of the misdirection In this case, which the learned senior State Advocate representing the People has properly conceded. It Is unsafe to allow tne conviction to stand. The appeal Is allowed, the conviction is 2/quashed quashed and the sentence is set aside. A. M. Silungwe CHIEF JUSTICE M. S. Mguiube g^UH CW justice 6. T. Gardner SUPREME COURT JUDGE