Hillary Phiri v The People (APPEAL NO. 33/2017) [2020] ZMSC 171 (22 December 2020)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) · .,.. APPEAL NO. 33/2017 BETWEEN: HILLARY PHIRI AND THE PEOPLE ( Coram: Phiri, Muyovwe and Chinyama, JJS on the 11 th November, 2017 and 22nd December, 2020 For the Appellant: Mr. S. Mweemba, Legal Aid Counsel For the Respondent: Mrs. R. N. Khuzwayo, Deputy Chief State Advocate JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court. Cases referred to: 1. Zulu vs. The People (1977) Z. R_- 151 2. Bwanausi vs. The People (1976) Z. R. 103 3. Dorothy Mutale and Another vs. The !P'eople (1995-1997)· Z. R. 227 4. Peter Kapindula vs. The People (1978) Z. R. 327 5. George Musupi vs. The People (1978) Z. R. 271 6. OPP vs. Kilbourne ( 1973) 1 All E R 440 7. Joseph Mulenga and Another vs . The Peopfo (2008) Z. R. 1 Vol. 2 8. Leslie Mutale vs. The People App. No. 187 /2017 9 . Wilson Mwenya and People (1990-1992) Z. R. 24 10. Tembo vs. The People (1972) Z. R. (1992) Z. R. 220 11. John Mkandawire vs. The People (1978) Z. R 46 \ 12. Attorney-General vs. Achiume (1983) Z. R. 1 13. Eddie Christopher Musonda vs. Lawrence Zimba SCZ Appeal No. 41 of 2012 When we heard this appeal ·we sat with Hon Mr. Justice G. S. Phiri who has since retired. Therefore, this is a judgment by majority. The appellant was convicted by the High Court sitting at ( Lusaka of the offence of murder contrary to Section 200 of the Penal Code. It was alleged that on the 4 th May, 2013 at Lusaka he murdered Bright Nkandu, hereinafter referred to as "the deceased". In his judgment, the learned trial judge (Hamaundu J, as he then was) found the following facts to be undisputed: 1. That on the 4 th May, the accused together with two of his friends named Albert Kaulu and Robson Halweembe, had come from drinking beer in the evening. 2. That the three of them went to Albert Kaulu's house where the accused had left his phone on a charger. 3. That at Albert Kaulu's house, the three discovered that Kaulu had misplaced the keys to his house. 4. That then Albert Kaulu entered the deceased's house from where he took a knife which he used to try and open his door. J2 5. That upon noticing that his door was open and that his knife had been taken from there, the deceased became upset that the three had entered his house without his permission. · 6. That a quarrel ensued. 7. That the same night, th~ deceased was reported to have been stabbed. 8. That the deceased was taken to the hospital where he was pronounced dead and; 9. That the following morning, the accused was apprehended and was subsequently charged for the murder of the deceased. The learned trial judge found that although no one witnessed the appellant stabbing the decea~ed, the testimony of PW2 (Robson Halwembe) to the effect that the appellant remained behind to fight the deceased and that of the arresting officer who found the blood- ( stained knife hidden in the appellant's bag complemented each other. The learned trial judge took the view that this was evidence given by two witnesses who were independent of each other and there was no evidence suggesting that there was a conspiracy between the arresting officer and PW2 to implicate the appellant. J3 He found that there was sufficient evidence to connect the appellant to the offence, convicted him and sentenced him to death. Before us, Mr. Mweemba advanced three grounds of appeal as follows: 1. The trial court misdirected itself in law and in fact in convicting the appellant on circumstantial evidence when the inference of guilty was not the only reasonable inference that could be drawn from the facts. 2. The trial court misdirected itself in fact when it convicted the appellant on the basis that the evidence of PW2 and that of PW3 complemented each other. 3. The trial court misdirected itself both in law and fact when it failed to treat PW2 as a suspect witness with an interest of his own to serve. In arguing ground one, it was submitted that this case was anchored on circumstantial evidence. Relying on the cases of Zulu (, vs. The People; 1 Bwanausi vs. The People2 and Dorothy Mutale and Another vs. The People3 Counsel argued that the inference of guilt was not the only inference that could be drawn from the evidence before the trial court taken as a whole. It was submitted that the trial court closed its mind to the fact that it was Albert Kaulu who had entered the deceased's house to get the knife which J4 he (Albert Kaulu) was using to open the door to his house. There was no evidence that the appellant got the knife from Albert Kaulu. It was submitted that the quarrel should more likely have been between the deceased and Albert Kaulu who had entered into the deceased's house without authority. According to Counsel, there was no evidence to show that the appellant was in possession of the knife at the time PW2 allegedly left the scene. Further, that although PW3, the arresting officer, testified that a search at the appellant's house led to the recovery of a blood-stained knife inside the appellant's bag, there was no concrete evidence to show that the knife was the murder weapon or that it was the knife which Albert Kaulu had retrieved from the deceased's house. It was submitted that there were other inferences that could have been drawn from the facts of this case: The deceased could have been stabbed by Albert Kaulu who got the knife from inside the deceased's house and who is on the run; and the knife produced in court was not the one used to stab the deceased which should have been considered favourable to the appellant. It was submitted that all things considered, guilt on the part of the appellant was not the only reasonable inference in this case. JS Turning to ground two, Counsel attacked the finding by the learned trial judge that PW3 's evidence that he found a knife hidden . . in the appellant's bag complemented PW2's evidence. That in fact PW3 lied that PW2 told him that he saw the appellant stab the deceased yet PW2 did not say anything to this effect. Counsel argued that in view of this false evidence, the lower court should not have believed his evidence that he found a knife in the \.. . appellant's bag. That, therefore, the two pieces of evidence referred to by the trial court were totally different and could not complement each other. In support of ground three, it was submitted that the learned trial judge should have treated PW2 as a witness with an interest to s erve as h e h a d been d etained together with the appellant as a suspect in this m atter . Counsel argued that it is possible that PW2 '- was only released after implicating the appellant. In support of this argument, Counsel relied on the cases of Peter Kapindula vs. The People,4 George Musupi vs. The People, 5 and DPP vs. Kilbourne6 which give guidance on the issue of witnesses with an interest to serve. It was submitted that the_ trial judge fell into error when he J6 failed to deal with the evidence of PW2 with caution as clearly, he had a motive to exculpate himself. Counsel concluded that the prosecution failed to prove their case beyond reasonable doubt and the conviction should be quashed. Mrs. Khuzwayo supported the conviction. She responded to the grounds of appeal together. She argued that the circumstantial evidence on record against the appellant was cogent and the finding of guilt was the only irresistible conclusion. That the appellant was linked to the offence by PW2 who testified that after the quarrel ensued between the deceased and others, the appellant who remained at the scene caught up with him and informed him that he had beaten the deceased. Mrs. Khuzwayo argued that no questions were put to PW2 under cross-examination disputing the statement made by the appellant to PW2. Counsel for the State pointed out that the trial court believed the evidence of the prosecution witnesses. On the issue of the recovery of the knife, it was submitted that the appellant should have made his case during the prosecution J7 case instead of raising issue during his defence. It was contended that whatever the appellant sta~ed in his defence which was not raised in cross-examination was an afterthought. In relation to PW2 being a suspect witness, it was submitted that it was not raised in the court below. Counsel argued that PW2 and PW3 were not asked in cross examination whether PW2 had been detained. The issue was raised by the appellant in his defence, hence an afterthought. Mrs. Khuzwayo argued that the mere fact that PW2 was present at the scene before the stabbing did not make him an a ccomplice or a witness with an interest to serve. She urged us to uphold the lower court's decision. We have consider ed the evidence before the trial court, the judgment of the trial court and the arguments advanced before us by Counsel. We propose to d eal with the three grounds of appeal together. We begin with the argument by Mr. Mweemba that PW2 was a witness with an interest to serve on the ground that he was in custody together with the appellant for the subject offence adding that he was probably released after implicating the appellant. The J8 record shows that the allegation that PW2 was also detained for the subject offence came from the· appellant who raised it in his defence. This case was anchored on the evidence of PW2 and PW3. It was, therefore important for the appellant's Counsel to raise all the issues in contention with the prosecution witnesses. As argued by Mrs. Khuzwayo, and the record is very clear, that this issue was not put to the prosecution witnesses in cross-examination. We stated in the case of Joseph Mulenga and Another vs. The Pea ple 7 that: "During trial, parties have the opportunity to challenge evidence by cross examining witnesses, cross examination must be done on every material particular of the case. When the prosecution witnesses are narrating actual occurrencest the accused persons must challenge those facts which are disputed ....... " In Leslie Mutale vs. The People8 we stated that: "It is trite that an accused person must lay his defence from the commencement of the trial up to his defence. It is not the duty of the court to establish the defence raised by an accused person." In this case, the fact that Counsel for the appellant in the court below did not cross-examine PW2 and PW3 on the issue of PW2's alleged detention for the subject offence means that it was an afterthought for the appellant to raise it in his defence. We are alive J9 to the case of Wilson Mwenya vs. The People9 where we guided that the evidence of any person detained in connection with the subject offence should be treated with caution. In the case in casu there was no evidence that PW2 was detained in connection with the murder of the deceased as alleged by the appellant in his defence. Mr. Mweemba's argument on this point cannot be sustained. In the same vein, as pointed out by Mrs. Khuzwayo, the record of proceedings reveals that the defence failed to challenge PW2 in cross-examination over his statement that when the appellant caught up with him, he told him that he had beaten the deceased. PW2 that night chose to leave the hostile environment while the appellant chose to remain and fight. We agree with Mrs. Khuzwayo that PW2 's initial presence at the scene did not make him a suspect witness and more so that his evidence was that he left the appellant and Albert Kaulu with the deceased. The learned trial judge accepted this as a fact. PW2 was clear that he did not know what happened behind when he left the trio. This brings us to the evidence by PW3 that PW2 told him that he saw the appellant stab the deceased yet PW2 was specific that he JlO I ' ,' \ . I did not witness the stabbing of the deceased as he had left the scene. Mr. Mweemba's argument is that PW3's evidence that he discovered a blood-stained knife. in the appellant's bag should be discounted in view of the fact that PW3 told a lie that PW2 told him that he witnessed the appellant stabbing the deceased. While we agree with Mr. Mweemba that the learned trial judge should have addressed his mind to the lie told by PW3 in his evidence, we do not agree that PW3 's evidence on the discovery of the blood-stained knife should have been discounted (or should be discounted) on this ground. In. the case of Tembo vs. The People 10 the Court of Appeal the forerunner of this court held, inter alia, that: (v) When a witness, and particularly an accused person, is proved to have lied in material respects, unless the untruthful portions of his evidence go to the root of the whole story to the extent that the remainder cannot stand alone, such remainder is entitled to due consideration. The weight of the remainder is affected by the fact that the witness has been shown to be capable of untruthfulness, but the remainder must still be considered to see whether it might reasonably be true; it cannot be rejected out of hand. And so, going by our holding in Tembo vs. The People the question is whether the lie told by PW3 went to the root of PW3 's evidence. PW3 was the investigations officer and he stated that in the course of his investigations h e found a blood-stained knife in Jli the appellant's bag. We take the view that although his statement that PW2 told him that he witnessed the stabbing was untruthful, this did not go to the root of his· evidence. The record shows that after the appellant indicated to PW2 that he wanted to fight the deceased, PW2 left the scene; the appellant followed him and told him he had beaten the deceased. It turned out that the deceased had been stabbed and the finding of the knife in the appellant's bag by PW3 cannot be a mere coincidence. We have no doubt that had the learned trial judge addressed his mind to this issue, he would have rightly accepted PW3 's evidence on this aspect. In fact, the record shows that after the stabbing incident, the appellant disappeared. According to PW3, he was infonned by the uncle to the deceased that the appellant had reappeared on the 5th May, 2013 the day after the killing of the deceased. It was on that same day the blood-stain ed knife was discovered in the appellant's bag. In John Mkandawire vs. The People 11 we held, inter alia, that: (v) The evidence of the discovery of a pistol and rounds of ammunition hidden in the room of two of the accused persons would not, standing alone, have constituted a sufficient link, but when considered in the light of all the other evidence it constitutes J12 an item of evidence which cannot be ignored and which goes to support the other evidence. In Machipisha Kombe vs. The People we held, inter alia, that odd coincidences if unexplained can amount to supporting evidence or something more. In this case, it is an odd coincidence that a blood-stained knife can be found in the bag of the appellant who was one of the persons left at the scene quarrelling with the deceased; who later ran after PW2 and stated that he had beaten the deceased who was later found dead with a stab wound. The learned trial judge summed up the evidence as follows (and this is the paragraph Mr. Mweemba cited in his submission): "None of the witnesses who testified said that they saw the accused stab the deceased. However, there are two pieces of evidence which connect the accused to this offence. The first is the testimony of his own friend Robson Halweembe. The testimony was that when the quarrel started, the witness had told the accused that they should leave Albert Kaulu's house and further testimony was that the accused later caught up with the witness and told him that he had beaten the deceased. The second piece of evidence is the knife that was said to have been found in the accused's house. The accused denied any knowledge of the knife. In fact, he said that the knife was not recovered from his house. In my view the two pieces of evidence complement each other in that they were given by two witnesses who are independent of each other. There was no evidence suggesting that there was a conspiracy between the arresting officer and Robson Halwembe to implicate the accused. It is therefore too much of a coincidence that Robson Halwembe would implicate the accused by what the accused is Jl3 alleged to have said and also the arresting officer would implicate the accused by evidence of a knife having been found hidden in a bag in the accused's house. Therefore, I am satisfied and I further find as a fact: . · ··· · · . (a) That the accused remained behind to fight the deceased; (b) That the accused later caught up with Robson Halwembe, (c) That upon searching the accused's house, a knife stained with blood was found hidden in a bag. From the overall findings of fact, I am satisfied that the accused fought with the deceased and stabbed him with the knife. The postmortem examination shows that the deceased died of a stab wound. Therefore, I am satisfied that the accused killed the deceased". From the excerpt above and considering the evidence before the trial court, we agree with the learned trial judge that the evidence of PW2 and PW3 complemented each other as each one was an independent witness. The evidence before the court below met the threshold set in the case of David Zulu vs. The People as the circumstantial evidence was cogent and took the case out of the • realm of conjecture such that the trial court could only arrive at an inference of guilt on the part of the appellant. Looking at the facts of this case, we find no other inference that can be drawn from the facts as we guided in the case of . Dorothy Mutate and Another vs. The People. The learned trial judge believed the evidence of the prosecution witnesses as against that of the appellant. Jl4 We stated in the case of Eddie Christ\Cpher Musonda vs. Lawrence Zimba 13 that: It is weU esta.bllished. Jpllriimcipfo tlln~t the learned trial judge as a trier of facts, has the acil.wam.tage of olli>se:rvm.g the demeanour of witnesses to determine as to who was teRnftng the trath in the trial. Bearing that in mind, we cannot upset his fnrullm.gs. On the fact s of this case, we find that we cannot fault the trial judge as the prosecution proved its case beyond reasonable doubt. We find no merit in the three grounds of appeal. We uphold the conviction by the lov.rer cour t and the appeal is dismissed accordingly . •· JE. W. C. M1UYOJVWE SUPREME COURT JUDGE J15