Moyo v People (Appeal 7 of 1988) [1993] ZMSC 53 (20 January 1993)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No, 7 of 1988 Isiah Moyo vs The People Appellant Respondent Coram: Silungwe C. J., Ngulube D. C. J. and Gardner A. J. S., 4th April, 1989 and 20th January, 1993 The appellant appeared in person. F. N. Mvlinga, Director of Public Prosecutions, appeared for the State. JUDGMENT Gardner A. J. S. delivered the judgment of the court. Cases referred to:- (1) Chuba v The People (1976) ZR 272. When we heard this appeal we allowed the appeal against conviction on count one and allowed the appeal against sentence on counts two and three. We substituted concurrent sentences of thirty years imprisonment with hard labour on those counts with effect from the 30th March, 1986. We said wd would give our reasons later and we now give those reasons. The appellant was convicted on three counts of espionage , The particulars of the offences were (1) that he, on a date unknown between the 22nd October, 1982 and 30th March, 1986, in Lusaka, did make a record in a notebook of the Republic's strategic military installations, namely the Radar and Builders Brigade, information which was intended to be useful to a foreign power (2) that he, being a member of the South African Defence Forces, on a date unknown but between the 22nd October, 1982 and the 30th March, 1986 in Lusaka and Johannesburg, did communicate to South African Defence Forces through one Peter Kockmoer information prejudicial to the safety or interest of the Republic of Zambia, and (3) that he, on a date unknown but between the 22nd October, 1982 and the 30th March, 1986, in Lusaka, collected information concerning the African National Congress of South Africa's activities including places where African National Congress cadres live and work which was intended to be directly or Indirectly useful to a foreign power. The prosecution evidence was that the appellant was employed as a driver by Southern Enterprise Transport Company Ltd of South Africa and in the course of his work he drove vehicles to Zambia. Southern Enterprises was run by Peter Murray (Senior) and Peter Murray (Junior). The latter was known to some witnesses as Peter Kockemoer. It was alleged that Kockemoer was in partner­ ship with the South African Minister for Defence in a transport company called Unifreight. PW9, a former Transport Manager of Unifreight and Southern Enterprise in Zambia, gave evidence that Unifreight was run by one McDonald and Kockemoer and was the mother body of National Freightways Interfreight a Southern Enterprises. In 1985 he resigned from Southern Enterprises and in 1986 he travelled to Botswana where he was offered a Job with Interfreight. He learned that Interfreight belonged to the South African Defence Force and that Kockemoer was a Captain in that force. There was evidence that the appellant drove a Datsun vehicle with a Botswana Registration Number BA 2093A which Kockemoer also drove when he was in Zambia. PW4 an acquaintance of the appellant gave evidence that he went with the appellant to Chikumbi and Lusaka West and the appellant asked questions'about a military site near Pre-Cem Hotel and about a sign Indicating a Builders Brigade Military establishment. This witness also said that he visited the appellant regularly at Masiye Motel and he saw the appellant with African National Congress Freedom Fighters who gave the appellant letters to deliver in South Africa and received from the appellant shoes and articles of clothing when he returned from South Africa. There was evidence from five members of the African National Congress who said that the appellant offered and brought them gifts of shoes and clothing from South Africa. These witnesses gave evidence that the appellant asked questions about where the members of the African National Congress lived in Zambia and that he took photographs of some of them. The witnesses said that the appellant told them that the gifts came from a charitable organisation. Evidence from police witnesses was to the effect that when the room of the appellant at Masiye Hotel was searched they found a note-book and various other documents. 3/.............. There was evidence from a handwriting expert that in his opinion the writing in the notebook was in the same writing as the handwriting specimen of the appellant, PW11, a Public Relations Officer for the African National Congress, gave evidence that he was suspicious of the appellant when he saw him at the International Airport and at a hotel in Livingstone. At the hotel in Livingstone the appellant offered to obtain shoes from a charitable organisation for the witness and made a note of his name and shoe size. When he heard of the arrest of the appellant this witness collected some of the goods which the appellant had given to members of the African National Congress and handed them to the police. These goods were indentified by the various witnesses in court. The witness referred to a document found in the appellant's possession and said it was a vehicle transfer document from the South African authorities which showed the appellant's address as case of Unifreight Transport S. A. P. O. BOX 5983 Johannesburg and his residential address as Skitmag Military Base, Palaborwa. The witness said that Palaborwa was a military training base for dissidents from patrotic movements in Mozambique, Angola and South West Africa, and for members of an anti-government movement in Zambia known as the Mushala gang. The witness said he was personally aware of the camp. The appellant gave evidence that when he stayed at Masiye Hotel some South African refuguees spoke to him and were Interested to learn about the situation in South Africa; but he denied asking for Information about their addresses. He denied that he brought gifts for anyone. He denied that he went to Chikumbi and Lusaka West and denied asking PW4 any questions about military installations. He said there was nothing strange about the photograph of African National Congress members. The appellant countered the evidence about the car transfer document by saying that he had bought the car from a military man and said that PW11 was a liar when he said that the document connected the appellant with the military. With regard to the notebook the appellant said it was not his and that it had not been found in his room. He agreed that he knew Kockemoer and said he was the Managing Director of the company he worked for. He said he did not know that Kockemoer was a military intellegence officer. With regard to Palaborwa he said that he did not know that it was a training centre for soldiers and that he himself was not a soldier. 4/.............. The learned trial judge said that he believed the prosecution witnesses. As to the first count of making a record of military installations in a notebook he accepted the evidence of PW4 that the appellant had asked questions about the installations at Chikumbi and Lusaka West and he accepted that the notebook contained references to such installations. With regard to the handwriting in the notebook he stated in his judgment that the handwriting expert told the court that he came to the conclusion that the specimen and the disputed writings were written by the appellant. He found this evidence to be confirma­ tion of the evidence that the notebook was found in the appellant's room. As to the appellant's intention to assist a foreign power the learned trial judge accepted the information on the vehicle transfer document as Indicating that the appellant was a soldier from the military base at Palaborwa and on this evidence convicted the appellant on count one. With regard to the second count of conmunicating prejudicial informa­ tion, the learned trial judge found that the appellant's connection with Kockemoer and Kockemoer's connection with the South African Defence Forces was overwhelming evidence In support of the charge. On the third count of collecting information about South African Congress members, the learned trial judge accepted the evidence of the questions asked by the appellant of his learning, of their addresses and the addresses of African National Congress offices and Institutions, and the bringing of gifts to ingratiate himself with the members of the African National Congress. The learned trial judge did not believe the appellant's denials and convicted him accordingly. On appeal the appellant appeared in person. He argued that the evidence of the prosecution witness should not have been believed and in particular that PW4 was an accomplice whose evidence should have been corroborated. He also argued that the notebook alleged to have been found in his room was not properly produced. Mr. Mwiinga, the learned Director of Public Prosecution, maintained that PW4 was not an accomplice but that in any event his evidence was corroborated by five other prosecution witnesses. As to the handwriting evidence the learned trial judge had not stated his own conclusion about the handwriting but it was argued that the record showed that the learned trial judge had accepted the opinion of the handwriting expert. 5/.... With regard to count two, which related to the communication of information, the learned director conceded chat a couSi^nt by the learned trial judge that the telex and telephone messages by the appellant to Kockemoer in Johannesburg contained prejudicial information did not take into account the fact that innocent messages must also nave Deen included, out we were asked not to regard this as a misdirection or, altenatively, to apply the proviso to section 15(c) of the Supreme Court Act. Gn consideration of the approach oy die learned trial judge to the question of the handwriting in the notebook we are quite satisfied that the learned trial judge, although he had the requisite material osfore him, did not arrive at his own conclusion thereon. The upiiiioii of a itandwricing expert must not be substituted for the judgment of tne court. As we said in Chuba v The People (1) (1976) Z'A Z7Z such opinion can only be a guide, aloeit very strong guide, to the court in arriving at its own conclusion on the evidence before it. The sole reliance on the expert opinion was a misdirection ana, as this evidence was used to support the allegation that the notebook was found in the appellant's room, the misdirection went to the root of the conviction on count one. The appeal against conviction on this count must succeed. The conviction on tills count is quasned and the sentence thereon is set aside. riith regard to tne other two counts there was ample evidence to support the finding that tne appellant was in coiununication with Kockemoer and that he collected evidence about tne African national Congress memoers and addresses. The learned trial judge did not misdirect himself in convicting on counts two and three and cue appeal against conviction on mose two grounds is dismissed. The appellant was sentenced to twenty-five years imprisonment with hard labour on each of the three counts. The sentences on the first two counts were consecutive ana the sentence on the third count was concurrent with them, making a total of fifty years. Those sentences are set aside and the question of sentence must be dealt with a fresh after the quashing of the conviction on the first count. The appropriate sentence on the remaining two counts is thirty years imprisonment witn hare labour on each count, to run concurrently with effect from the 30th march, 19U6. The appellant is sentenced accordingly. 6/......... A. M. Si lungwe CHIEF JUSTICE M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner ACTING SUPREME COURT JUDGE