Isaac Simfukwe v People (Appeal 142 of 2017) [2018] ZMSC 572 (12 June 2018)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No. 142/2017 BETWEEN: ISAAC SIMFUKWE APPELLANT AND THE PEOPLE RESPONDENT Coram: Phiri, Muyovwe and Chinyama, JJS on the 5th June and 12th June, 2018 For the Appellant: Ms. E. I. Banda, Senior Legal Aid Counsel For the Respondent: Mr. R. L. Masempela, Deputy Chief State Advocate JUDGMENT Muyovwe, JS, delivered the Judgment of the Court Cases referred to: 1. Muwowo vs. The People (1965) Z. R. 91 2. Edward Kunda vs. The People (1971) Z. R. 99 3*. Kashiba vs. Thd People (1971) Z. R. 95 4. David Zulu vs. The People (1977) Z. R. 151 5. Peter Yotamu Haamenda vs. The People (1977) Z. R. 184 6. Liswaniso vs. The People (1976) Z. R. 277 7. Lumangwe Wakilaba vs. The People (1979) Z. R. 74 8. David Dimuna vs. The People (1988-89) Z. R. 199 9. Mbinga Nyambe vs. The People SCZ judgment No. 5/2011 The appellant was tried and convicted of the murder of his wife Marianna Nayanda hereinafter referred to as "the deceased". The particulars of the offence alleged that the offence was committed on the 7th February, 2014 at Mbala in the Muchinga Province of the Republic of Zambia. At his first appearance before the High Court at Kasama on the 1st December, 2014 his lawyer had difficulties to obtain instructions and he applied that the appellant be medically examined in terms of Section 17 of the Criminal Procedure Code (CPC) to determine his mental state at the time of commission of the offence and whether he was fit to plead. The appellant was conveyed to Chainama Hills Hospital for psychiatric assessment. According to the report rendered by the Consultant Psychiatrist which was availed to the court and Counsel for the parties, the appellant was found fit to plead, stand trial and follow proceedings. On 12th January, 2016 the trial which is the subject of this appeal commenced and he was found guilty of the subject offence and • sentenced to death by hanging and has now appealed against • I I I conviction. The background to this tragic story is that the appellant in the company of his deceased wife sought the help of a traditional healer J2 of Tungwele Village in Mbala District over the stomach problems he had suffered over time. In fact, the visit was the second one. On the material day, the traditional healer and his wife left the appellant and the deceased at home as they went to the field in the morning. Upon their return, they found the appellant and his wife absent from the village. Shortly thereafter, when the traditional healer's wife went to the well to fetch water, she found the deceased had perished in the well and sounded alarm. The appellant was nowhere in sight and was after a search apprehended by the Community Crime Prevention Unit. The appellant was found covered in mud sitting in a hut warming himself by the fire. He offered no explanation regarding the death of his wife but when the police arrived at the scene and after interviewing him, he led them to the recovery of a small hoe in the nearby bush a few meters from the well. Counsel for the appellant in the court below argued that there Illi was no motive or opportunity for the appellant to commit the offence and that it was possible that someone else could have killed the deceased. That the appellant's defence that he did not kill his » » » J3 I '» wife and that he did not know who killed his wife or what happened to her should be accepted. The learned trial judge rejected the defence. She found that the evidence of the arresting officer that the appellant led the police to the recovery of the murder weapon, namely the small hoe was supported by PW4 an in-law to the appellant who saw him leading the police. The learned trial judge found odd coincidences in that the appellant was the last person in the company of the deceased at the village; he admitted going to the well with the deceased; he was seen going to the well alone around 10:00 hours and two hours later the body of the deceased was found in the well. Taking into account all the facts of this case, the learned trial judge concluded that the appellant had the opportunity to kill his wife at the time when he went to the well with her. According to the learned trial judge, 'the evidence strongly suggested the reasonable inference that something happened between the two of them in consequence of which the appellant assaulted the deceased with the hoe he was seen retrieving from the grass' a few metres from the deceased's body. She found him guilty as charged and convicted him. J4 She further addressed her mind to the non-availability of the defence of insanity. She noted that the appellant did not advance this defence and that it was only brought out by his Counsel in cross-examination. The learned trial judge found no extenuating circumstances in this case. At the hearing of this appeal, we granted leave to Ms. Banda learned Counsel for the appellant to file grounds of appeal and heads of argument out of time. In the first ground, she contended that the trial court misdirected itself when it admitted incriminating statements without holding a trial-within-a-trial. The second ground faults the learned trial judge for finding that the circumstantial evidence on record connected the appellant to the commission of the offence. In tackling ground one, Ms. Banda took us to the proceedings and pointed out Pages 31-32 of the record. We shall deal with this later on in'detail in this judgment as we intend to reproduce the relevant portions in the proceedings in order to show the actual content of the evidence in contention. J5 Ms. Banda contended that it was clear that the information that the arresting officer was leading in evidence was an alleged confession and it was the duty of the court to inquire into its voluntariness regardless of whether or not the defence had raised an objection to the evidence. Counsel found solace in the case of Muwowo vs. The People1 where we stated, inter alia, that: "An incriminating statement made by an accused person to a person in authority is not admissible in evidence unless it is proved beyond reasonable doubt to have been made by him voluntarily. In that context the words 'made voluntarily' do not mean volunteered but 'made in the exercise of a free choice to speak or to be silent." Counsel also relied on the cases of Edward Kunda vs. The People2 and Kashiba vs. The People3 in which this court further emphasised the importance of a trial court satisfying itself as to the voluntariness of an incriminating statement before admitting it in evidence. It was submitted that the court below recognised that verbal confessions were also open to questions of whether they were given voluntarily as she cited the case of Edward Kurada in her judgment. Counsel contended that there being no other evidence connecting the appellant to the offence, we should find the conviction unsafe and that on this ground the appeal should be allowed and the appellant set at liberty. J6 In arguing ground two, Ms. Banda argued, inter alia, that the prosecution failed to prove the case beyond reasonable doubt and that this case which was anchored on circumstantial evidence did not meet the threshold established in the celebrated case of David Zulu vs. The People.4 She argued that the fact that the appellant was allegedly the last person seen with the deceased is mere speculation and the court below should not have relied on it. It was submitted that the circumstantial evidence produced by the prosecution did not take the case out of the realm of conjecture and the conviction was not safe. Further, that the hoe which the police claimed was the murder weapon was not tested for fingerprints especially in light of the appellant's explanation that he did not know what happened to his wife and that two men had attacked him at the well. Counsel contended that it was a dereliction of duty on the part of the police as they failed to investigate this matter to connect the appellant to this serious • a a a a offence especially that no possible motive was offered. She emphasised that this was a case where no one actually saw the appellant commit the offence and the hoe was not found on his person but at a place where many had gathered to observe. J7 Counsel buttressed her argument with the case of Peter Yotamu Haamenda5 where we held that: (i) Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the Investigating Agency fails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the derelictions of duty. In response, Mr. Masempela the learned Deputy Chief State Advocate made viva voce submissions. In respect of ground one, he submitted that the trial court was on firm ground when it admitted the incriminating statements in view of the fact that the trial court had asked the defence Counsel if he had any objection to the nature of the evidence adduced and the defence waived their right to object. Counsel contended that according to the confession statement, a hoe was used in the murder. It was argued that while it is the duty of the court to guard against admitting confessions into evidence, the court could not usurp the choice of defence Counsel not to object to the line of questioning. J8 In the alternative, should this court find that the incriminating statements are inadmissible Mr. Masempela submitted that we should consider the principle enunciated in the case of Liswaniso vs. The People6 that illegally obtained evidence is admissible. Relying on the Liswaniso case, it was contended that in the case in casu, the evidence that the appellant led the police to the recovery of the hoe is admissible. Counsel submitted that the post-mortem report reveals that four deep cuts were found in the head of the deceased which is consistent with the use of the hoe. Counsel prayed that ground one fails. In response to ground two, it was submitted that the trial court was on firm ground as the circumstantial evidence was so strong and permitted only an inference of guilt. It was submitted that although no witness saw the appellant and the deceased at the well, Counsel opined that the appellant had the opportunity to commit the offence adding that the appellant led the police to the • a a i । recovery of the hoe which could have been the murder weapon looking at the injuries sustained by the deceased. It was submitted further that there is evidence from PW4 that he saw the appellant talking to the police officer after which the appellant went to the J9 nearby bush a few metres from the well and retrieved the hoe, the possible murder weapon. Mr. Masempela prayed that the appeal be dismissed. In reply, Ms. Banda submitted in relation to ground one that there is no evidence on record that the defence Counsel in the court below waived the right to object. She maintained that the trial court had a duty to ensure that the confession or any incriminating statement was voluntary. However, in this case the trial court shifted the duty to the defence Counsel. It was submitted that in his defence, the appellant stated that he was beaten while at the well and according to Counsel, even at this stage and after the defence closed its case, the court had a duty to inquire into the voluntariness of any incriminating evidence alluded to by holding a trial-within-a trial. In support of her argument, Counsel referred us to the case of Lumangwe Wakilaba vs. The People7 in which we held that: • I I • I (i) It is the duty of a court to inquire, where a point is reached at which a witness is about to depose as to the contents of a statement, whether the defence has any objection to that evidence being led; (ii) It was mandatory for the trial magistrate after the issue of voluntariness had been raised to conduct a trial within a trial J10 notwithstanding that the prosecution had already closed its case. Ms. Banda argued that there was no evidence on record that the appellant admitted to killing his wife. It was Counsel’s view that even though no statement was attempted to be produced, failure by the trial court to conduct a trial-within-a trial was a misdirection. Counsel submitted that the totality of the evidence was inconsistent as some witnesses stated that the appellant led the police officer to the recovery of the hoe while PW3 stated that the hoe and buckets were found at the well. She argued that there was no evidence that the hoe connected the appellant to the deceased's death or that the hoe was the murder weapon. Counsel contended that the prosecution should have called the medical doctor to give evidence as there is a great possibility that the deceased could have fallen into the well and injured herself in the process. In relation to ground two, it was submitted that there is no evidence that the hoe caused the injury on the deceased. The medical doctor was not called as a witness to give possible causes. In conclusion, Counsel prayed that the appeal be allowed and we set the appellant at liberty. JU We have considered the evidence on record, the judgment of the lower court and the submissions by Counsel for the parties. The gist of Ms. Banda's argument in ground one, is that the self-incriminating statements should not have been admitted without the trial court holding a trial-within-a-trial to establish the voluntariness of the statements which amounted to confessions. That although the defence counsel in the court below abdicated his duty to object to the incriminating evidence by the arresting officer, which the learned trial judge noted, the burden remained on the trial judge to ensure that the voluntariness of the confession or incriminating statements were tested through a trial-within-a-trial. Mr. Masempela argued that the defence Counsel waived his right to object as he did not object when called upon by the trial court to do so and in the alternative he urged us to allow the evidence to stand as illegally obtained evidence is admissible going by decided authorities cited above. We have perused the record and we have found that the appellant did not make a confession or incriminating statement per se but the alleged confession is imputed from the evidence of the J12 arresting officer who stated the following at Pages 31-32 (referred to us by Ms. Banda): "A........ The report was that female Mariana Nayanda aged 42 of Zambia compound in Mbala was murdered by the husband by the name of Isaac Simfukwe aged 50 of the same address, and that the deceased sustained injuries on the head and a small hoe was used. Upon receiving the same report, I and other police officers went to the scene of crime. When we arrived at the scene, we found the body was already retrieved from the water. I checked the body and I found that the body had five (5) deep cuts. Q. On which parts of the body did you discover those cuts? A. There were on the head. A. After that I asked the accused person where the sharp instrument he used was. Q. Before that what did you do? Court: Defence, do you have any objection to this line of testimony? Mr. Zulu: At some stage we are ready to object my lady. A. Then after that I verbally warned and cautioned Isaac Simfukwe in Bemba language and I asked him where the sharp instrument he used was. Q. After that interview with Isaac Simfukwe what did you discover? A. I asked him to lead me to where he had put the sharp instrument which he had used to injure the deceased person. And later on he led me to a place where the hoe which was about four meters away from the scene where the body was found". From the above excerpt the fact emerges that in the court below although defence Counsel indicated that he would 'object at J13 some stage' he completely forgot to do so and the record speaks for itself. It is the position of the law that since defence counsel failed to object, the evidence was admitted and remained unchallenged and the issue of voluntariness cannot or did not arise thereafter. Further, Ms. Banda's argument under this limb is that the appellant in his defence stated that he was beaten at the well and he denied leading the police to the recovery of the hoe. That the learned trial judge had the duty even after close of the defence case to inquire into the voluntariness of any incriminating evidence by holding a trial-within-a-trial. We fail to appreciate Ms. Banda's argument in that the appellant's testimony was to the effect that he was beaten by two men. He never mentioned that the police assaulted him not even the Community Crime Prevention Unit or even the members of the community upon discovering the body of the deceased at the well or that he was forced to make a statement. For Counsel to suggest that the learned trial judge should have held a trial within a trial after the appellant gave his testimony is an argument that goes against the evidence on record. Simply because the appellant stated in his defence that he did not lead the police to the, recovery of the,hoe was not a ground for holding a trial within a J14 trial as there was no confession to talk about in this case. In the case of Wakilaba vs. The People, the prosecution in its evidence tendered two statements and neither the appellant or defence Counsel made any objections to the production of the two statements. But after the prosecution had closed its case, the appellant gave evidence in defence alleging that the statements were involuntary. The trial magistrate refused to hold a trial-within-a- trial on the ground that it was not possible to do so at that stage because the prosecution had already closed its case. But in convicting the appellant the trial court relied on the two statements as there was no other evidence that connected the appellant to the offence. On appeal, the holding by this court established the principle that a trial-within-a-trial can be held at any time before judgment. In our considered view the authorities cited by Ms. Banda are not applicable in the present case. Therefore, the learned trial judge cannot be faulted for proceeding in the manner that she did. Ground one fails. J15 J Turning to ground two, Ms. Banda's argument is that the circumstantial evidence presented by the prosecution in this case did not satisfy the test set in David Zulu vs. The People. That the totality of the evidence in this case was inconsistent. Mr. Masempela contended that the circumstantial evidence was strong and permitted only one inference that the appellant was guilty as charged. Counsel submitted that the appellant had the opportunity to commit the offence and led the police to the recovery of the murder weapon in the presence of PW4. The question is whether the learned trial judge was on terra firma when, taking into account the evidence before her, she found that the circumstantial evidence had taken the case out of the realm of conjecture such that the only reasonable inference was that it was the appellant who killed his wife. In her judgment the learned trial judge had this to say: • • a i • " Accused raised no issue with PW4 which could touch on any reason for PW4 to falsely implicate him. I accordingly find, this evidence of PW4 confirms that of PW5, who said when he got to the scene of crime, and after he verbally warned and cautioned accused who was already apprehended, accused led him to the recovery of the hoe, exhibit "Pl" which was hidden in the grass some 4 meters from the well from where the body was recovered. '» » '» '» J16 The allegation that it is accused who killed his wife, the deceased in this case, also finds support in a number of unexplained odd coincidences. These are that as the deceased is last seen alive in the company of her husband the accused, by their hosts PW1 and his wife, in the morning. Accused in cross-examination admits they thereafter left to go to the well together. As accused is seen headed to the well alone around 10.00 hours, two hours later PWl's wife who also goes there to fetch water finds the dead body of accused wife in the well and accused is now nowhere to be seen. After he is apprehended and when the police come to the scene and are seen interviewing him in the presence of his wife's body, with several cuts in the head. Accused is seen by PW4, walking into uncleared vegetation only 4 metres from the well from where he is further seen retrieving a small hoe hidden in the grass, exhibit Pl. On the evidence, I find when accused went to the well with his wife, as admitted by himself in cross-examination, accused had the opportunity to commit the offence.......... I accordingly reject accused story in denying the charge, that his wife could have been killed by other villagers, as a mere afterthought. As he himself acknowledged in cross-examination, he is the one who was constantly with her and he went to the well with her. He said that no other villager could have had a motive to cause her any harm, as she had not differed with anyone. In the event, I have no hesitation in finding the evidence is overwhelming and is cogent, that it has taken this case from the threshold of speculation and the only inference that can reasonably be drawn from it is irresistible. That it is the accused who caused the death of the deceased..... " , From the above excerpt, it is clear that by his own leading,, the appellant placed himself at the well. We do not, therefore, agree with Ms. Banda's argument that the fact that the appellant was the last person seen with the deceased is mere speculation. We agree with the le’arned judge thdt the appellant ’had the opportunity to kill J17 the deceased. In fact, the fact that the appellant was the last person in the company of the deceased gave him an opportunity to harm her. In this ground, Ms. Banda also argued that the police were guilty of dereliction of duty for failure to lift finger prints from the hoe which the learned trial judge accepted was the murder weapon. She contended that this was important in view of the fact that the appellant disputed leading the police to the recovery of the hoe. In the case of David Dimuna vs. The People8 we held, inter alia, that: (3) Whilst it could be a dereliction of duty from which certain presumptions would arise, when the police have an opportunity to take fingerprints and do not do so, it must be established that the police did in fact have an opportunity to take fingerprints in that the surface of the material to be tested, the climatic conditions and other circumstances would enable prints to be taken. In the absence of such evidence there is no dereliction of duty. In this case, during trial the investigations officer was not challenged as to why he did not lift fingerprints. However, on the authority of Dimiina, at this stage it cannot be established whether the police had an opportunity to lift fingerprints from the hoe as enunciated in the case of Dimuna. J18 Having considered the evidence on record and the judgment of the lower court we find that the learned trial judge made findings of fact which we do not find perverse and we cannot fault her as she had the opportunity to observe the demeanour of the witnesses who testified before her. We do not agree with the assertion by Ms. Banda that this case did not meet the test on circumstantial evidence set by the celebrated case of David Zulu vs. The People. See also Mbinga Nyambe vs. The People.9 Again, we cannot fault the learned judge for arriving at the only reasonable inference that the appellant was guilty as charged. Ground two must fail. In sum, this appeal is dismissed for lack of merit and we uphold the death sentence by the lower court. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE J. CHINYAMA SUPREME COURT JUDGE SUPREME COURT JUDGE J19