Sivaliano and Anor v People (Appeal 110 of 1986) [1987] ZMSC 55 (3 November 1987)

IN THE SUPREME COURT OF ZAMBIA Appeal Nos. 110 and 111 of 1986 HOLDEN AT LUSAKA (Criminal Jurisdiction) GINASIO SIVALIANO ALICK CHILEMBA Appellants v THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner, J. S., and Bweupe, Ag. J. S., C. P. Sakala, Director of Legal Aid for the appellants. K. C. Chanda, Senior State Advocate, for the respondent 3rd November, 1987 JUDGMENT Gardner, J. S., delivered the judgment of the court. Cases referred to: (1) Lajabu v The People (1973) Z. R. p.74 (2) Regina v Turnbull and Ors (1976) 3 A. E. R. p.445 The appellants were convicted of armed aggravated robbery‘s the particulars of the offence being that they while acting together on the 14th of March, 1986, in Petauke, being armed with an AK47 rifle, stole a quantity of goods together valued at K2,414.20n, being the property of Jonathan Mwanza and at the time of such stealing threatened to use violence against that man. The prosecution evidence was to the effect that two masked men came to the premises of Jonathan Mwanza and the house of PW.3 who lived next door to them. They brandished what appeared to be a machine gun and stole the goods referred to in the charge. There was further prosecution evidence that the first appellant 2/was was arrested in Mozambique and was found to be in possession of a gun which answered the description of the gun used in the robbery. Both - ■„ the appellants -were identified at an identification parade by the prosecution witnesses, and both appellants made confession statements. Mr. Sakala, the learned Director of Legal Aid on behalf of the appellants, has put forward grounds of appeal relating to the propriety of the identification, relating to the proof that a firearm was used in this robbery and relating to the admission of the alleged confession statements by the two appellants. We will deal first with the question of the cconfession statements because upon those depends the proof that a firearm was used in this robbery. When the prosecution indicated to the trial court that it was intending to put in the cconfession statements, defence counsel indicated that there would be an objection thereto on the grounds that these confession statements were obtained under duress. Tfte learned trial commissioner therefore very properly held a trial within a trial to decide the voluntariness of the statements. During the course of that trial within a trial both the appellants alleged in detail how they had been beaten by the police. The police witnesses denied that there had been any such assault. In his ruling, deciding the issue' of whether the confession statements should be admitted, the learned trial commissioner said these words "I do not think the two accused persons are telling the truth on this issue, I an rather inclined to accept the prosecution version. If the two accused were cooperative with the police in giving their statements! cannot imagine them rewarding this cooperation with violence against the accused person." With respect to the learned trial commissioner this argument is a non sequitur and it is not a proper way in which the question of voluntariness should be dealt with in a trial within a trial. It is always the duty of the prosecution to prove that statements taken from accused persons are voluntary. There is no onus whatsoever upon accusedsppersons to prove that statements taken were taken under duress. In the circumstances, these statements were wrongly admitted. We will now deal with the question of whether or? not it was proved in this case that these people were properly identified. Mr. Sakala 3/’ dfew . u..... - 3 - drew attention to the case af lajabu v The People (t). In that case a High Court judge ruled that tn all cases of identification it was essential that there should be evidence as to the physical attributed® of the people who were being Identified before they attended an identification parade. That judgment was delivered prior to the case of Regina y Turnbull and Others (2), In which pricfples were set out to govern cases of possible mistaken identity In identification cases. This court has approved that ruling, and that is the criterion by which identification cases should be judged in this country. We have made it r clear in this court that in the case of possible mistaken Identity account must be taken of the opportunity of identifying witnesses to observe the people whom.tney are identifying. We have said that where there Is ample opportunity to observe a court may accept Identification evidence from such witnesses. Where however, there 1$ only a fleeting glls^se a court must warn itself of the danger of mistaken Identity and should look for supporting evidence. On the facts of this case there was indeed ample opportunity for the prosecution witnesses to observe the people whom they subsequently Identified at an identification parade. We find that there was nothing wrong in the trial commissioner's dealing with this aspect of identification and despite the fact that there was an argument about whether a person was wearing a stolen shirt or not we regard that as unnecessary. The 1dentIf 1 cation cannot, he faulted. We wHi now deal with the question of whether or not it was proved that tn* gun used in the robbery was a firearm within the definition of the Fl rearms Act. In this respect there was evidence from the principal police witness that the gun that was sent to a ballistics expert to examine was of unknown origin, vie said:- "I do not know where this gun csess froo.” That sort of evidence in a case involving a capital charge is completely unacceptable. and in the whole of the evidence In this esse, although it was shown that when th® first appellant was arrested in Mozambique as a Hozawbiuquan soldier that he had a gun In Ms possession, that particular gun has never been proved to have been examined by a ballistics expert, nor was satisfactory evidence given that it was gun used In the robbery. For these reasons the appeals of both the appellants in respect of the capital charge of aggravated robbery with a firearm will be 4/allowed. allowed and the conviction for that offence will be quashed. In their place we substitute convictions of aggravated robbery without a firearm for which the mandatory sentence is fifteen years imprisonment with hard labour. We set aside the original sentences and substitute sentences of fifteen years imprisonment with hard labour for each of the appellants to take effect from the 8th of April, 1986. M. S. Ngulube, DEPUTY CHIEF JUSTICE B. T. Gardner, SUPREME COURT JUDGE B. K. Bweupe, ACTING SUPREME COURT JUDGE