Nyirenda v The People (SCZ Appeal 359 of 2013) [2014] ZMSC 33 (7 April 2014)

IN THE SUPREME COURT OF ZAMBIA 359/2013 HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ/APPEAL № BETWEEN: IGNATIOUS NYIRENDA Appellant AND THE PEOPLE Respondent CORAM: WANKI, JS, LISIMBA AND LENGALENGA, AG. JJS On 3rd December, 2013 and 8th April, 2014 For the Appellant Counsel – : Mr. K. Muzenga, Principal Legal Aid Legal Aid Board For the Respondent : Advocate – Miss N. T. Mumba, Senior State National Prosecutions Authority J U D G M E N T LENGALENGA, AG. JS, delivered the Judgment of the Court. Cases referred to: 1. EMMANUEL PHIRI v THE PEOPLE (1982) ZR 77 2. BERNARD CHISHA v THE PEOPLE (1980) ZR 36 3. EMMANUEL PHIRI & OTHERS v THE PEOPLE (1978) ZR 4. ZULU v THE PEOPLE (1973) ZR 326 5. GOBA v THE PEOPLE (1966) ZR 113 J2 6. KATEBE v THE PEOPLE (1975) ZR 13 7. MACHOBANE v THE PEOPLE (1972) ZR 101 The appellant was convicted of defilement contrary to section 138(1) of the Penal Code as read together with Act № 15 of 2005, Chapter 87 of the Laws of Zambia. The particulars of offence are that the appellant on 15th October, 2011 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, had unlawful carnal knowledge of a girl under the age of 16 years. The appellant was sentenced to twenty (20) years imprisonment with hard labour, effective from date of arrest, 22nd February, 2012. He now appeals against conviction and sentence. The prosecution case mainly rested on the evidence of five witnesses, namely PW1, Anita Lubasi, PW2, Tabo Lubasi, PW3, PW4, Mubita Sikeya, PW5, Lazarous Tembo and PW6, Silvester Mwamba. The brief facts were that on 17th October, 2011, when PW1, the mother to the victim who was 7 years 9 months old, was washing her daughter’s pants when she noticed blood. Then on 18th October, 2011, PW1 noticed that her daughter was not walking or sitting properly and she checked her private parts. J3 She discovered that there were bruises which appeared reddish and that the vagina was open. At the time she was checking the child’s private parts, PW1 was with PW2, an aunt to the child, who also testified to the same effect. Thereafter, they reported the matter to the police who referred them to the University Teaching Hospital (UTH) with a medical examination report for the victim to be examined at UTH. On the way back from the hospital, the child was reluctant to use the route by the shops but PW1 and PW2 forced her to use that route. As they passed by the shops, the child pointed at a man who was selling air time as the person who had sexual intercourse with her friend. PW1 and PW2 identified the appellant in court as the man who was pointed at by the child. PW3, a child witness testified on oath after a voire dire was conducted that on the material date at around 16:00 hours, she went to the victim’s house to collect her to buy sweets. On the way, they saw the appellant who was standing by the gate and he called them to go with him into the gate. They followed him and he closed the gate and took them into the house where they found another man. The appellant covered their mouths with a cloth and defiled the prosecutrix while the other man J4 defiled PW3. When they started bleeding from the vaginas, they were told to wash themselves. After washing they were threatened that they would be killed if they told anyone. They were released and they told their friend Chile. PW4, a police Sergeant confirmed that PW1 and PW2 reported the defilement of the prosecutrix who was with them. He also confirmed that the child identified a man who was selling talk time as the man who defiled her. PW4 later took the appellant to Stalilo Police Post. PW5, PW1’s neighbour, testified that on 22nd October, 2011 at about 19:00 hours, she reported to him that her child had been defiled. She claimed to know the suspect and asked him to apprehend him and he accompanied her, PW4 and the child to Hybrid Compound to the shops where the child pointed at the appellant who PW4 apprehended. The suspect was later taken to Stalilo Police Post where PW6, a Sub-Inspector, was allocated the docket. Under warn and caution, the appellant denied the charge of defilement. The appellant gave evidence on oath in his defence. He testified that in October the previous year at around 19:00 hours, J5 he was selling talk time in his booth. Then he was visited by his friend, Mubita who requested to talk to him and he told him that he was busy. However, he listened to him as he told him that someone broke into his house and stole. Mubita told the appellant that he suspected Sylvester and he told him that he did not know Sylvester. Thereafter, Mubita told him that Sylvester told the police that he got one of the stolen items, flash disc from (him). The appellant told him that he did not deal in flash discs and he told Mubita to pay him K50 000.00 for taking him to police. Thereafter, the appellant left his merchandise with a friend and Mubita hired a taxi and called a friend to escort him. They all boarded the taxi. The appellant testified further that at Stalilo Police Post, they found women who were related to the man they were with in the taxi. Then Mubita called the officer on duty but the appellant did not see Sylvester. When the appellant asked about him and why he was at the police, the duty officer told him that he was there for defilement. He was further told there was an allegation that he defiled a girl under 16 years. Later he was transferred to Ben Mwinga Police Post where he was detained. J6 The appellant testified further that the women he found at Stalilo followed him to Ben Mwinga Police Post where he was then detained. They claimed that he defiled two children and he denied the charge. The appellant further testified that he lived in Kaunda Square behind Ndanji Shopping Mall. He stated that he went to that house in June and that before he moved, he used to live near the shops. He said that he had never gone back to his former house which is fenced with a gate. He stated further that he came to know the mother to the prosecutrix who at one time asked for talk time from him on credit and she never paid for it. He confronted her and she promised to go and pay for it. Later she went back with K50 000.00 and he accepted his money for a recharge she got. He said that he told her that he had no change and that she could go and take back the money but she never took the money. He met her later and demanded for his money but she failed to pay. He said that she threatened to fix him and that he was surprised when she made allegations against him. In cross-examination the appellant confirmed that he was facing the charge of defiling a girl under sixteen (16) years. He also stated that two men apprehended him on 22nd October, J7 2011 at 19:00 hours. It was his defence that PW1 made the false allegation against him because of the money she owed him. He stated that among all the witnesses, he only differed with PW1. The appellant said that the friend to the prosecutrix said that he took them in the house where she saw him defile the prosecutrix. He said that he never differed with PW3. He also agreed that the description of the house he lived in according to PW3 was correct. In re-examination, the appellant stated that from the time he left he had no contact of the house. The appellant called one witness DW2, Phillimon Nomba who testified that in October, on unknown dates, he was apprehended by an officer who was with a small girl and her mother. He testified further to the effect that the girl was asked to point to the door where she was defiled but the girl kept quiet. The mother shouted at her and the girl pointed at three doors. DW2 was then asked if that was the door where accused lived and he answered in the affirmative. He said that the premises in question belong to his brother-in-law, Mr. Bookman. He said that he was a caretaker who looked after the same property. DW2 J8 stated that there were two tenants in the premises. He also said that he never allowed any one in the premises. Under cross-examination, DW2 stated that he looked after the same house. He stated further that the house has five doors inclusive of toilet door and that there are only two doors for tenants. He said that there are only five bedrooms and that the house has a wall fence around. This witness identified the accused in the dock as Ignatius, his former tenant. He said that he was his tenant for one year six months. DW2 said that the only problem he had with Ignatius was that he used to play music till late. He stated further that after accused left, he was not allowed to go in. DW2 said that he was the one who opened the gate for the police officer and prosecutrix when they went there. He further stated that he did not allow the accused to enter the premises. He however, stated that if accused went to the house he would not have chased him. Phillimon Nomba said that he was not aware that the prosecutrix were taken in the house where they were taken in one of the bedrooms and defiled. He said that he learnt about it when the police went there. He said that he was not the one who opened for the two young girls. DW2 said J9 that the tenants also had keys to the gate and that it was possible that the tenants could open for anyone who went there. He said that he was neither denying nor agreeing that the accused defiled the victim. The appellant was subsequently tried, convicted and sentenced. He now appeals against conviction. The appellant filed two grounds of appeal and they read as follows: 1. The learned trial court erred in law and in fact when it convicted the appellant in the absence of corroborative evidence. 2. The learned trial court erred when it accepted and considered the evidence of PW3, being a child of tender age, whose evidence was accepted after a defective voire dire was conducted. Counsel filed heads of arguments on which both the appellant and the respondent relied. In support of ground one, learned Counsel for the appellant, Mr. Muzenga submitted that the evidence against the appellant was given by PW3, a child of tender years. She claimed to have seen the prosecutrix being defiled by the appellant at the time she was also being defiled by another person. He submitted that the prosecutrix never gave evidence as she was found to be unfit J10 after a defective voire dire. Counsel for the appellant submitted further that no witness saw the appellant with the prosecutrix or PW3 leaving or going into the house on the material day. He relied on the case of EMMANUEL PHIRI v THE PEOPLE 1 in which this court held inter alia: “In a sexual offence there must be corroboration of both commission of the offence and the identity of the offender in order to eliminate the danger of false complaint and false implication. Failure by the court to warn itself is a misdirection.” Mr. Muzenga submitted that the foregoing is a rule of practice requiring corroboration in sexual offences in general. He submitted further that in the instant case, there is a further statutory requirement in section 122(1) of the Juveniles Act as amended by the Juveniles (Amendment) Act № 3 of 2011, for corroboration of the child’s evidence. He argued that this statutory requirement for corroboration cannot be satisfied by proof of evidence of something more. Learned Counsel for the appellant further relied on the case of BERNARD CHISHA v THE PEOPLE 2 in which this Court observed that a child due to immaturity of mind, is susceptible to J11 the influence by third persons and as such their evidence requires to be corroborated. He submitted that in any event, there is no evidence of something more on the record. Mr. Muzenga referred us to the case of EMMANUEL PHIRI & OTHERS v THE PEOPLE 3 in which this Court defined the something more as: “The “something more” must be circumstances which, though not constituting corroboration as a matter of strict law, yet satisfy the court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the accomplice implicating the accused. This is what is meant by ‘special and compelling’ grounds”………. ……………………………………………………………………………… In Zambia the test is: “Was there corroborative or supporting evidence of such weight that the conclusion is not to be resisted that any court behaving reasonably, moving from the undisputed facts and any findings of fact properly made by the trial court, would, directing itself properly, certainly have arrived at the same conclusion?” In this case, learned Counsel for the appellant argued that there is no corroboration for PW3’s allegation that it was the appellant who had sexual intercourse with her. He argued further that J12 there are also no special and compelling grounds to rule out inherent dangers of false implication. He therefore submitted that such doubt be resolved in the appellant’s favour. Learned Counsel for the appellant argued that in the circumstances of this case, the only irresistible conclusion is that the appellant is not guilty. Based on these submissions, he urged us to allow the appeal, quash the conviction, set aside the sentence and set the appellant at liberty. On ground two, Mr. Muzenga submitted that the learned trial court did state which law it applied when conducting the voire dires. He referred us to the voire dire in respect of PW3 at pages 5 and 6 of the record of appeal and that of PW4 at pages 8 and 9 of the same record. He submitted further that from its rulings, it appeared that the learned trial court applied section 122 of the Juveniles Act, Cap 53 of the Laws of Zambia, as it was before the 2011 amendment. Section 122 provides: “122 (1) Where, in any proceedings against any person for any offence or in any civil proceedings, any child of tender years called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received though not on oath, if, in the opinion of the Court, he is possessed of J13 sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth; and his evidence though not given on oath but otherwise taken and reduced into writing so as to comply with the requirements of any law in force for time being, shall be deemed to be a deposition within the meaning of any law so in force: Provided that 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 him. If any child whose evidence is received as (2) aforesaid wilfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be liable on conviction to be dealt with as if he had been convicted of an offence punishable in the case of an adult with imprisonment.” He referred us to the quoted ruling in respect of PW3 at page 6 of the record which reads as follows: “Child possesses the intelligence of telling the truth and the purpose of taking oath.” The ruling in respect of PW4 at page 9 reads as follows: “Child understands the purpose the nature of telling the truth but does not understand or appreciate the purpose of taking an oath.” J14 Learned Counsel for the appellant submitted that inspite of the ruling in respect of PW4, the evidence was never received. He further submitted that it seemed that the trial court was not aware of the amendment of section 122 of the Juveniles Act. The gist of his submission on the two rulings is that the learned trial court focused on the issue of appreciating the purpose of taking an oath. This was to determine whether a child’s evidence could 4 be received on oath or not. In the case of ZULU v THE PEOPLE this Court set out the guidelines when considering section 122 before the amendment. Mr. Muzenga submitted that the offences in this case allegedly occurred on 15th October, 2011 after the coming into effect of the Juveniles (Amendment) Act № 3 of 2011 on 15th April, 2011. He stated that therefore, the applicable section is as provided for in the amended Act. Learned Counsel for the appellant submitted further that the amended section 122 introduces an age limit for a voire dire and also changes the requirement from “understanding the nature of an oath” to possessing sufficient intelligence to “justify the J15 reception of the child’s evidence on oath and understanding the duty of speaking the truth.” He concluded that, therefore, the voire dires conducted by the learned trial court were defective. He relied on the case of GOBA v THE PEOPLE 5 in which this Court held inter alia: “…when no proper voire dire is carried out, the evidence of the witness should be discounted entirely.” In the present case, Mr. Muzenga argued that since the evidence against the appellant largely rested on PW3’s testimony which was improperly obtained, his conviction cannot be upheld. He urged this Court to allow the appeal, quash the conviction and set aside the sentence. He also asked the Court to set the appellant at liberty. With respect to ground one, Miss Mumba, Counsel for the respondent conceded that there was no corroboration on the identity of the offender. She submitted that PW3’s evidence required corroboration as she was a child of tender years. She acknowledged that there is a plethora of cases where this Court has held that a trial court can convict on the uncorroborated evidence of a single witness. She cited the cases of KATEBE v J16 THE PEOPLE 6 and MACHOBANE v THE PEOPLE 7 . Miss Mumba submitted that in this case it would be unsafe to rely only on the evidence of PW3 to sustain the appellant’s conviction. She, therefore, submitted that the State does not support the conviction. On ground two, Miss Mumba also conceded that it appears from the record that the learned trial court’s conduct of PW3’s voire dire was in line with the repealed law. In the circumstances she submitted that this is a proper case for retrial as this would not prejudice the appellant. We have considered the grounds of the appeal, submissions by both learned Counsel and have examined the evidence on record. We observed that the medical examination report produced to support the prosecution case corroborated the evidence by the prosecutrix that she was defiled. From the submissions by Counsel, it is not disputed that PW3’s evidence lacked corroboration. We, therefore, accept Counsel’s submission that it would be unsafe for this court to uphold the conviction in the absence of corroboration of the child’s evidence. We further J17 accept learned Counsel for the respondent’s position not to support conviction. We agree with principles of the law and authorities relied on by Counsel. Lack of corroboration of PW3’s evidence was fatal to the prosecution case in the absence of independent evidence to support the defilement. We, accordingly, allow this ground of appeal. With respect to ground two, we accept the submissions advanced by Counsel. We find that the misapplication of section 122 of the Juveniles (Amendment) Act, № 3 of 2011 by the learned trial court was a misdirection on the court’s part. We also accept that the voire dires conducted by the trial court were defective. As such PW3’s evidence against the appellant cannot be relied on to support the appellant’s conviction. We, therefore, allow this ground of appeal. In conclusion, the appellant having succeeded on both grounds, succeeds on the whole appeal. We, accordingly, allow the appeal, quash the conviction, set aside the sentence and set the appellant at liberty forthwith. …………………………………………………. J18 M. E. Wanki SUPREME COURT JUDGE ……………………………………………………….. M. Lisimba ACTING SUPREME COURT JUDGE ………………………………………………………… F. M. Lengalenga ACTING SUPREME COURT JUDGE