John Daka v The People (Appeal No. 155/2021) [2024] ZMCA 9 (26 January 2024)

,, IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 155/2021 BETWEEN: JOHN DAKA AND /_ __ APPELLANT { '- i jh;� THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Sharpe-Phiri and Muzenga JJA On 14th June 2022 and 26th January For the Appellant: Mr. E. Mazyopa, Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. J. Banda, State Advocate, National Authority Prosecution JUDGMENT MUZENGA, JA delivered the Judgment of the Court. Cases referred to: 1. Dorothy Mutale and Richard Phiri v. The People (1997) SJ 51 (SC) 2. Kalebu Banda v. The People (1997) ZR 169 3. The People v. Inonge Anayawa and Lubinda Sinjambi (2011) Vol 3 ZR 298 4. George Musongo v. The People (1998) ZR 266 J2 5. Dickson Sembauke Changwe and !fellow Hamuchanje v. The People (1988 -1989) ZR 144 Phiri v. The People -Selected Judgment No. 30 of 2015 6. Saidi 7. Nzala v. The People (1976) ZR 221 8. Mwiya and Ikweti v. The People (1968) ZR 53 9. Major Isaac Masonga v. The People (2009) ZR 242 to: Legislation referred 1. The Penal Code, Chapter 2. The Criminal 87 of the Laws of Zambia. Code, Chapter 88 of the Laws of Procedure Zambia. 1.0 INTRODUCTION 1.1 The appellant was sentenced to death by Newa, J following a conviction of murder. He has appealed against the conviction and sentence. 1.2 The particulars of offence alleged that on 21st June 2019 at Malewera in the Melewera District of the Republic of Mozambique, the appellant murdered one Fadalesi Phiri. 2.0 EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was secured by the evidence of four prosecution witnesses. A summary of the prosecution evidence is that the deceased and her children lived in a village located near the Mozambican border in the Katete District of Eastern Province. Early in J3 the morning on 21st June 2019, the deceased left home to go to the garden leaving the appellant, PW2 and one of their siblings at home. Shortly after that, the appellant equally left home heading the direction of the village and returned he had 3 hours later from the direction gone. The garden was situated on the Mozambican side. When she did not return in the evening, the appellant her to and PW2 followed the garden where they found her dead body. 2.2 The appellant proceeded to report the matter to the Mozambican authorities and investigations were instituted. A postmortem examination was also conducted by the Mozambican authorities after which the deceased body was released to the deceased's relatives for burial on the Zambian side. After the burial rites were concluded, PW3 phoned PWl, the mother of the deceased and informed her that the appellant opened a shop in Katete days after their mother's demise. This prompted PWl and PW2 to travel to Katete to confirm. 2.3 When the appellant was asked about the shop, he denied running it but later he agreed and his landlord confirmed. According to PWl, PW2 and PW3, the appellant confessed his mother so to having killed that he could get the money which he used to open the said shop. J4 2.4 This marked the end of the prosecution was found case. The appellant with a case to answer and he was put on his defence. 3.0 DEFENCE 3.1 In his defence, the appellant opted to give sworn evidence and called no witnesses. The appellant denied having confessed to the witnesses. Instead, he accused them of various reasons for their motive to implicate him. he wondered During cross-examination, on why they had not called his landlord who was present as an independent witness. He alleged that he started running the shop with his wife in 2016. He further stated that on the material date, he went to put up posters to advertise his show in Mozambique as he was a musician and that he was with Amon after which he returned home with Amon. 3.2 This marked the end of the defence case. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After consideration of the evidence before her, the learned trial Judge found that the cause of death was a serious skull trauma and the direct cause of death was cardiac arrest. The trial there court also found that was no direct evidence that the appellant killed the deceased. JS 4.2 The trial court concluded that the prosecution had proved its case beyond reasonable doubt. The appellant was later sentenced to death by hanging dead. until he was pronounced 5.0 GROUNDS OF APPEAL 5.1 Embittered with the conviction and sentence, filed two the appellant grounds of appeal couched as follows: (1) The learned trial court erred in law and in fact, in the appellant convicting when an inference inference which could be drawn from the of guilt was not the only facts. evidence on circumstantial (2) The learned in convicting a suspicious trial the appellant confession. judge erred both in law and in fact based on the evidence of 6.0 THE APPELLANT'S ARGUMENTS 6.1 The kernel of the appellant's arguments in support of ground one is evidence that the circumstantial in this case did not help to prove the allegation against the appellant to warrant his conviction. It was learned counsel's submission that the evidence of the prosecution on the reason why the appellant may have killed the deceased was inconsistent. PWl informed the court that the appellant the killed deceased because he wanted money and after the deceased died, the appellant opened a shop. While PW3 told the trial court that the J6 appellant told her that he killed the deceased because the deceased wanted to kill one of her children. 6.2 It was learned counsel's further submission that it does not add up why the people who were present when the appellant is said to have confessed to killing the deceased had different testimonies on the appellant's motive. We were referred to the case of Dorothy Mutale and Richard Phiri v. The People1 in which the Supreme Court held that: "Where two or more inferences always been a cardinal the Court will adopt the one, which an accused if there is nothing inference." principle are possible, it has law that of the criminal to is more favourable such to exclude in the case 6.3 It was submitted that the trial court should have adopted the inference which is more favourable to the appellant which is that the moment he left home he was with his friend Amon and that he had no opportunity to commit this offence. 6.4 It was contended further that the appellant testified that he opened the shop in 2016 while the prosecution witnesses stated that he opened the shop after the deceased died and failed to bring the landlord to court to prove their accession. Learned counsel went on to J7 submit that the dealing officer had a legal duty to establish whether the appellant was with his friend Amon for the three hours he left home, but failed to investigate this fact. We were referred to the case of Kalebu Banda v. The People2 where it was held that: available only to the police "Where evidence before the Court it must be assumed that, had it been produced, In this context or not actually "available" obtained." it would have been favourable means "obtainable" is not placed whether to the accused. 6.5 In support of ground two of the appeal, it was contended that the purported confession by the appellant is suspicious because none of the witnesses who witnessed the confession, made a statement about it to the police. It was contended further that there is no record from the police which indicates that the appellant made any confession. Counsel concluded that the evidence was an afterthought. 6.6 We were urged to allow this appeal, acquit the appellant and set him to liberty. 7.0 THE RESPONDENT'S ARGUMENT 7 .1 On behalf of the respondent, learned counsel supported the conviction and sentence of the appellant for the offence of murder. It was contended that the confession on which the appellant was convicted J8 was not suspicious and that a confession when properly proved is the best evidence that can be adduced. To buttress this argument, we were referred to the case of The People v. Inonge Anayawa and Lubinda Sinjambi 3 where it was held that "Where a confession is proved, it is the best evidence that can be proved." 7.2 It was contended further that a confession is subject to evidentiary exclusionary rules when it is made to a person in authority. Thus when the confession statement is made to a person who is not in authority, there are no problematic attendant evidentiary rules. exclusionary According to learned counsel, in this case, the confession was made to PWl, PW2 and PW3 who are not persons in authority and there was no evidence of an unfair environment that could have forced him into making the confession thus leading to its exclusion. 7.3 We were referred to the case George Musongo v. The People4, where it was held that: officers, they put police Rules were formulated "The Judges' police regard to what type of conduct not, be regarded vis a person suspected However, Judges' Rules are principles independently officers on their part will, or unfair for the guidance on guard with or will vis-a­ a crime. the underlying of having committed of fair conduct of those rules, and by judges as improper in their own right the principles or improper unfair of J9 of evidence ought to be rejected. lead to the exclusion in the of a court. The dictum in Chinyama v. The or in all the circumstances that the on the conduct on the part of people other than police officers can equally discretion People (1) cited with approval. In all cases the issue must always be whether the accused was so unfairly improperly treated evidence part of a police an impropriety exercise failure indeed anybody else) does not necessarily impropriety person, appreciate of what should, be done in such circumstances." amount to an that a be expected should of necessity and should not, on the part of any other person in authority in respect of which a trial court may similar (or other than a police officer, as it cannot reasonably in favour of the accused, officer to administer its discretion Whereas failure the niceties a caution constitutes 7.4 In responding to the appellant's contention that the prosecution witnesses gave different stories on the motive why the appellant may have killed the deceased, it was learned counsel's that the submission discrepancies are minor and do not go to the root of the matter and are not fatal. We were referred to the case of Dickson Sembauke Changwe and !fellow Hamuchanje v. The People5 where the Supreme Court stated that: to reduce or and inconsistencies of a "For discrepancies obliterate witness, entertain doubts generally given evidence the weight to be attached to the evidence they must be such as to lead the court to or veracity on his reliability To show that PWS had from his or to particular which differed points. so insignificantly either JlO to the police or to show, as counsel statement endeavoured inconsequential one or other of the occasions result credible against to do, that there were some items of were given or omitted on and cannot does not assist PWS is not in effect that made up the whole story holding and had probably the appellants." detail which in the court 7.5 According to the learned state advocate, the circumstantial evidence on the record supported by the confession as well as by the appellant the fact that the appellant opened a shop shortly a�er the demise of his mother leads to only an inference that it was indeed the appellant that killed the deceased. We are referred to the case of Saidi Banda v. The People6 where the Court guided that: that it is competent in some upon circumstantial The has been evidence to circumstantial evidence. to convict many times by "We must state at the outset instances law with respect restated to convict inculpatory innocence upon any other hypothesis guilt." of the accused this court, and it is that, in order evidence, based on circumstantial the with the facts must be incompatible of explanation and incapable than that of the accused's 7.6 In summation learned counsel urged us to uphold the conviction and sentence of the lower court and dismiss this appeal for lack of merit. Jll 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Mazyopa, placed full reliance on the documents filed. On behalf of the state, Ms. Banda informed the court that the rely state would equally on the heads of argument filed before the court. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by counsel and the judgment of the court below. We shall consider the two grounds of appeal together as they are related. The issue in this appeal is whether on the evidence on record, a conviction was warranted. 9.2 We firstly wish to comment on the postmortem which was examination conducted in Mozambique and the report "P2" which was generated, and subsequently admitted into evidence in the court below. This postmortem report should not have been admitted in the in evidence absence of the pathologist or doctor who conducted it coming before the lower court to produce it. This is because it was not prepared by a medical officer employed in the public service. Therefore, the learned trial court should not have allowed the production into J12 evidence of "P2" and consequently "P3" (which was the English translation of "P2") without the expert who conducted the examination giving evidence in court (see Section 191A of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia). We therefore expunge "P2," "P3" and any other evidence premised or birthed therefrom. 9.3 Despite having expunged the postmortem report establishing cause of death, we are still satisfied on the evidence that the deceased did not die a natural death as physical injuries on her body were observed, and presence of blood stains at the scene clearly shows that this was a homicide case. 9.4 Learned counsel for the appellant submitted that the circumstantial evidence on the record was not sufficient to warrant a conviction whereas learned counsel for the state submitted that the circumstantial evidence was sufficient. We hold the view that this case is not really anchored on circumstantial evidence. It revolves around confession evidence, which issue we shall revert to later. Learned counsel further argued that the appellant put up an alibi which the police did not J13 investigate, neither did they call Amon who the appellant purported to have been with. 9.5 According to the arresting officer, PW4, the appellant did not tell him about his alleged alibi. Therefore, the police did not have a duty to investigate the alibi. In the case of Nzala v. The People7 the Supreme court held that: "(i) Where an accused person on apprehension or on arrest puts forward an alibi and gives the police detailed could support that alibi, to investigate it. it is the duty of the police as to the witnesses information who (i) That duty is not discharged simply interviewing by the investigating the people concerned, silent and remaining for the defence not asked officer taking no statements matter; had counsel certain questions cross examination silent as to whether the alleged alibi investigated. of the investigating the record would have been had been on the officer in by the witnesses mentioned was no (ii) If in fact the various had given information which appellant support for his case, this was important evidence in support of the prosecution have been standard evidence comment." and the failure procedure must always be a matter of severe this is the to lead this led by the prosecution; case and should J14 9.6 We therefore have no hesitation in finding the argument that the failure the alibi to investigate amounted of duty to be to a dereliction without merit. If the appellant, not having told his alibi to the police wanted to rely on it, he should have led evidence enough for sufficient the trial Judge to deliberate on it. The appellant to do having failed so, the trial court cannot be faulted for rejecting the alibi. 9.7 We now revert to the issue of a confession. We have already stated that this is not a case anchored on circumstantial evidence. In as much as there is no eye witness to the murder, we have direct evidence of a confession. According to PWl, PW2 and PW3, the appellant admitted to them to having killed his mother. The appellant on the other hand denied the confession. Learned counsel for the appellant argued that there were discrepancies on the motive for killing the deceased as narrated by the witnesses. PWl and PW2 stated that the appellant said that he killed his mother because PW3 he wanted money, whereas said the appellant killed the mother because he wanted to kill one of them (her children). Counsel has argued that the doubt created by should the discrepancy be resolved in the appellant's favour. Learned JlS counsel for the respondent argued that the discrepancy is insignificant and does not go to the root of the matter and is not fatal. 9.8 We agree with learned counsel for respondent that the discrepancy is minor. The motive for killing someone, especially in the circumstances of this case, does not affect criminal liability. issue is The important whether the appellant admitted to killing his mother. The appellant having denied confessing to having killed his mother, the question became a credibility one, which the trial court resolved. The trial court believed the evidence of the three witnesses as opposed to that of the appellant. We see nothing on the record to warrant us to interfere with this finding. The trial court had the opportunity the to observe assess witnesses, their evidence and make the findings. The trial court was on firm ground. 9.9 Further, the witnesses who narrated the confession to the court were the appellant's own relatives, among which PW2 was his own biological brother. There is no legal requirement that a confession should be corroborated, especially in this case, where his own relatives brought the confession to the fore. In the case of Mwiya and Ikweti v. The People8 the Supreme Court held that: J16 "(i) An extra-curial confession made by one accused other co-accused person incriminating against those other persons or any of them adopt the confession and make it their own. unless and not the other persons himself is evidence (ii) A conviction can be based on a well-proved uncorroborated People (4}, disapproved. confession; Hamainda v. The (iii) In order to establish aiding and abetting on the intended it must be proved that ground of encouragement, the appellants at the crime committed. Mere encouraged the scene of crime even does (emphasis not per se amount to encouragement." ours)." and wilfully presence though non-accidental to encourage 9.10 The appellant did not allege their being bad blood with his biological brother (PW2) and the other witnesses, or that he was beaten, threatened, neither did he allege any unfair conduct at the time he allegedly confessed to warrant the exclusion of the same, in terms of the case of Major Isaac Masonga v. The People9. He simply denied the confession. We can therefore not fault the learned trial court for relying on the confession to convict the appellant. We find no merit in the appeal. . . 10.0 CONCLUSION 10.1 Having found no merit in the appeal, we dismiss it. The conviction and sentence is upheld. DEPUTY JUDGE PRESIDENT �·············�···· N. A. SHARPE-PHIRI K. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE