Jila v People (Appeal 72 of 1987) [1987] ZMSC 74 (1 September 1987)

Hl THE SUPREME COURT OF ZAMBIA UOLOth AT LUSAKA (Criminal Jurisdiction) Appeal Mo. 72 of -<^7 JOHN J1LA v THE PEOPLE Appellant Respondent CORAM: Ngulube, O. C..\, Gardner and Sakais, JJ.5., Appellant in person C.n. Kayukwa, State Advocate, for the respondent 1st September, IW JUDGMENT udrdner. J. S., delivered the Judocient of the ccourt. The appellant was convicted of aggravate’ -)W>ery. the particulars of the charge being thatg cm the Sth of June, 1985, «t- lusaka. he, whilst acting together with other persons unknown, did steal one motor vehicle Sag. No. AAD 3M5, Fiat 132 GLS J. K«C. OL cash in total valued at KlA.osc the property of Alox Mutale. The prosecution evidence was to the effect that the complainant on the night 1ft question drove bis elder brother's vehicle to Infer® his sister of a death in the family. When he had done sc, this witness said that ha was feeling thirsty so be called tn at kalipinda bar where he had a soft drink, Whilst there, ha was greeted by a man, whom he later identlf'id as being the appellant.and together they sat drink- Ing soft drinks. After soas time this witness said the appellant asked nl« for a lift to fhiienje South. he witness agreed to give toe appellant a lift. When they got Into the car the appellant was joined ay another mtn and his girl friend. On arrival at Chllenjc South this witness said that the u of tnem went into a ?«sux® In order to obtain •wOfley u pay hie. After a short wait the appellant cane out af the iiouse and asked the witness to gc. of the car so that he could be paid. When the witness coerged from the cat' the appellant grabbed bln by the neck and ordered him to sive hl® the keys of the car otherwise 2/he............... he was going to die. At the samet time this witness said the appellant put his hands into the witness's pockets and took K40.00 . Whilst this was going on. the witness said, the other man and his girl friend joined the the appellant in taking the keys and the money from him and they then got into the motor car and drove off . This witness continued his evidence by saying that nine days later he attended an Identification parade and identified the appellant on that parade as having been the man who had approached him for a lift and had robbed him Of the motor vehicle and money. The appellant has appealed against his conviction, and. In arguing his own appeal, has put in some written grounds of appeal. The grounds of appeal dealt solely with the question of whether or not the complain­ ant was in a fit state to identify the appellant as having been the robber. The appellant drew our attention to part of the witness's evidence when he said that, as it was late at night, he was confused. The appellant suggested that any confusion to this witness must have been caused by his not having consumed soft drinks but by having consumed alcohol which would have made him drunk. We have considered the evidence "about which the appellant said the witness was confused, and we note that it relates to where, in his statement to the police, he said that under threats he gave K40.00 to the appellant, whereas in his evidence in court he said that the appellant had taken the money from one of his pockets. The second allegation of confusion was that in his statement to the police the witness had not said that someone had grab­ bed him by the shirt, whereas In his statement In court he said that such a thing happened. We have read through the whole of the witness’s evidence given in court and we note that he alleged In that evidence that the appellant grabbed him by the neck, not by the shirt. In all we cannot see that there was confusion as alleged by the appellant and certainly not the type of confusion which would lead any reasonable court to assume that the witness was drunk when he made his statement to the police and when he was observing the man who had robbed him so that he could not later identify the same person at an identification parade. Finally the appellant argued that the learned trial conmlssioner did not consider the possibility of an honest mistake in the identifica­ tion of the'appellant as the robber. In fact the learned trial comlsstoner rcWully considered the whence a1’8" and t0 W* conclusion that the witness had ample opportunity to observe the 3/appellant........ .. appellant. We agree with the conclusion that at the time when the witness was drinking soft drinks together with his companion there was no reason for his powers of observation to be affected in any way , and we are satisfied that there was no opportunity for an honest mistake and there was certainly no misdirection by the learned trial commissioner. In the event there are no grounds upon which this appeal could succeed. The appeal against conviction Is dismissed. No appeal lies against the mandatory minimum sentence for aggravated robbery. M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE