Chimbi v People (SCZ 4 of 2005) [2005] ZMSC 46 (8 June 2005)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 110/2004 SCZ JUDGMENT NO. 4 OF 2005 (45) HOLDEN AT NDOLA (CRIMINAL JURISDICTION) HAGGAI CHIMBI AND THE PEOPLE APPELLANT RESPONDENT Coram: Sakala, CJ., Chibesakunda, JS., Munthali, AG. JS 7th December, 2004 and 8th June, 2005 For the Appellant: Mr. E. M. Sikazwe, Deputy Director of Legal Aid. For the Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions. JUDGMENT Sakala, CJ., delivered the Judgment of the Court. Case referred to:- 1. Zulu Vs The People(2) (1973) ZR 326 When we heard this appeal at Ndola, we allowed the appeal, acquitted the Appellant and indicated that we shall give our reasons in a written Judgment. We now give our reasons. The Appellant was convicted of defiling a girl under the age of 16 years, contrary to Section 138(1) of the Penal Code, Cap 87 of the Laws of Zambia by the Subordinate Court of the first Class holden at Ndola. (46) The particulars of the offence were that the Appellant, on 15th November, 2002, at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia, had unlawful carnal knowledge of a girl namely; Memory Mwape, under the age of 16 years. Upon his conviction, the Appellant was committed to the High Court for sentence. At committal, the Appellant was' sentenced to 15 years Imprisonment with Hard Labour. He appealed to this court against both the conviction and the sentence. The case for the prosecution centred on the evidence of PW2, and the unsworn statement of PW3, the prosecutrix herself. The evidence of PW2 was that on 17th November 2002, she went to Kansenshi Shopping Centre with PW3. As they walked, she noticed that PW3 had difficulties in walking as she was not opening her legs properly. PW3 did not agree that she was not walking properly. PW2 testified that at 18.00 hours, when she arrived home, PW3 told her that the Appellant had taken her to the Servant Quarters of the neighbour’s house where he tied a cloth on her mouth and had sexual intercourse with her. According to PW2, PW3 told her that she felt pains. PW3 also told her that the Appellant gave her K500.00. PW2 further testified that she took PW3 to the bathroom where she checked her private parts. She found that the opening was large. She saw bruises around the private parts. The matter was then reported to the police. PW3 was subsequently taken to the hospital. In cross-examination, PW2 testified that she was told of the incident on 17th November, 2002, while the incident happened on 15th November, 2002. PW3 was taken to the hospital on 18th November, 2002. (47) PW3 gave unsworn evidence after the court conducted a Voire Dire. In her unsworn evidence, she explained that it was on a Friday, 15 November, 2002, around 14.00 hours when the Appellant found her home. According to her evidence, he tied her mouth with his shirt. He pulled her to the neighbours where he took her in the bathroom. In the bathroom, he undressed her. According to her unsworn evidence, he got his thing on her. It was a big thing, like the handle of a pan. She felt pains. Then she saw blood and some white substance. She told the court that she did not tell anyone about it. But they discovered by how she was walking. PW4, a police officer, testified that he apprehended the Appellant while he was in company of the complainant and her mother. According to him, the complainant pointed at the Appellant as the person who had carnal knowledge with her. PW4 received the medical report which he produced in court. In his brief evidence in chief, the Appellant denied anything about the case. But in cross examination, he testified that he knew the complainant. She was 9 years then. The Appellant insisted that if he had defiled the complainant, he would not have reported for work. He testified that the complainant lied in court. On the evidence, the trial court found that the prosecutrix knew the Appellant very well; that the girl’s heymen was torn, indicating that the girl had sexual intercourse; that the wound in the vaginal of the (48) complainant was still painful, hence difficulties in walking; that the girl gave evidence in a straight manner; able to explain how she was defiled. The court accepted the complainant’s evidence as the truth and that the Appellant, who was present at the scene of the offence, had the opportunity to commit the offence. The court rejected the Appellant’s defence. The court found that the evidence of the prosecutrix was supported by PWsl and 2 and the medical report. The court concluded that it was the Appellant, who had carnal knowledge of the young girl, who was only aged 9 years. The court found the Appellant guilty and convicted him accordingly. On behalf of the Appellant, Mr. Sikazwe, the Deputy Director of Legal Aid, advanced one ground of appeal namely; that the learned trial Magistrate misdirected himself on corroboration. He submitted that while the learned trial Magistrate was correct that the medical report confirmed the commission of the offence, he erred in holding that the medical evidence meant that the Appellant committed the offence. Counsel argued that the court failed to look for corroboration of the identity of the alleged culprit. The learned counsel drew our attention to the proviso to Section 122(1) of the Juveniles Act, Cap 53, which requires that the evidence of a child of tender years must be corroborated by some other material evidence before an accused is convicted. Counsel also referred us to some reported and unreported decisions of this court. Responding to the submissions by Mr. Sikazwe, the learned Director of Public Prosecutions informed the court that having perused the record and having addressed his mind to the question of corroboration, he agreed with the submissions on behalf of the Appellant. He told the court that he did not support the conviction because the evidence of the prosecutrix was not corroborated. (49) We have considered the evidence on record and the judgment of the learned trial Magistrate as well as the submissions on behalf of the Appellant. At the outset, we want to indicate that the learned Director of Public Prosecutions took the correct course of not supporting this conviction. A number of things made it unsafe to uphold this conviction of the Appellant. Firstly, the Voire Dire itself was defective and unsatisfactorily conducted. After the court was informed that the next witness was a small child, the court conducted a Voire Dire as follows:- "Court: Court: Child: Court: Child: Court: Child: Court: Child: Court: Child: Court: Child: Court: Child; Court: Child: What are your names? Memory Mwape. Do you go to school? Ido. What Grade? I am going into grade three. Do you go to church? I do. What church do you go to? Igo to U. C. Z. What will happen to people who tell lies? God will burn them. Do you like telling lies yourself? I do not tell lies. Why don’t you tell lies? I do not tell lies because I am afraid to being burn by God. RULING: The child is of sufficient evidence to give unsworn evidence. ”(sic) o This Voire Dire was defective and unsatisfactory. In the case of Ziilu Vs The Peoplefl), we pointed out the correct procedure Io be followed under section 1'2'2 of the Juveniles Act, now Cap 53. Tor the benefit of (he trial courts, wo reproduce what we said in that, case in relation to the correct procedure under section 1'2'2 of Cap 53. Wc held in the Zulu (50) case that::- “(1) the correct procedure under Section 122 of the Juvenile Act, Cap 17 (now Cap 53) is as follows:- (a) The court must first decide that the proposing witness is a child of tender years; if he is not, the section does not apply and the only manner in which the witness’s evidence can be received is on oath. (b) If the court decides that the witness is a child of tender years, it must then inquire whether the child understands the nature of an oath; if he does, he is sworn in the ordinary way and his evidence is received on the same basis as that of an adult witness. (c) If, having decided that the proposing witness is a child of tender years, the court is not satisfied that the child understands the nature of an oath, it must then satisfy itself that he is possessed of sufficient intelligence to Justify the reception of his evidence and that he understands the duty of speaking the truth; if the court is satisfied on both these matters then the child’s evidence may be received although not on oath, and in that event, in addition to any other cautionary rules relating to corroboration (for instance because the offence charged is a sexual one) there arises the statutory requirement of corroboration contained in the proviso to section 122(1). But if the court is not satisfied on either of the foregoing matters the child’s evidence may riot be received at all.” (51) As we said in the Zulu case “that not only must the record show that Voire Dire has been conducted, but also the questions asked, the answers received and above all the conclusions reached by the court must be shown.” In the present case, the Magistrate asked questions which gave the answers as follows: “I go to school. I am going into grade three. I go to U. C. Z. God will burn people who tell lies. I do not tell lies because I am afraid to being burnt by God.” The Magistrate then recorded this conclusion: “The child is of sufficient evidence to give unsworn evidence. ”(sic) The Magistrate confused the requirements and the tests. This is not the test for receiving unsworn evidence of a witness. The prosecutrix’s unsworn evidence can only be received when the court is satisfied not only that the witness understood the need to tell the truth; but also that the witness was possessed of sufficient intelligence to justify the reception of the evidence. Equally, the test for swearing a witness of tender years is that the court must be satisfied that the witness understands the nature of an oath. In the instant case, we were satisfied that the Voire Dire was defective. In a proper case, the court has power to order a retrial where an appeal is allowed because of a defective Voire Dire. But in the present case, Mr. Sikazwe has also raised the issue of corroboration of the evidence of identity of the perpetrator of the offence. He argued that in terms of the proviso to section 122(1) of the Juveniles Act, the evidence of the H Juvenile should have been corroborated. This point was well taken. The learned Director of Public Prosecutions properly conceded. (52) We considered this argument. Even accepting, on the evidence, that the prosecutrix was defiled, there is on record no corroborative evidence of the identity of the person who defiled the prosecutrix. The evidence of PWs 1 and 2 could not corroborate the evidence of identity because they were not at the scene. For the foregoing reasons, we allowed the appeal and acquitted the Appellant. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE S. K. Munthali SUPREME COURT JUDGE /rmc