Mbao v People (SCZ 115 of 2011) [2017] ZMSC 240 (19 January 2017)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: JOHN MBAO AND THE PEOPLE SCZ Appeal No. 115/2011 APPELLANT RESPONDENT Coram: Mumba, Ag/DCJ, Chibomba, Phiri, JJS On the 20th March, 2012 and 19th January, 2017. For the Appellants: Mr. N. M. Chomba, Acting Deputy Director of the Legal Aid Board For the Respondent: Ms N. T. Mumba Acting Senior State Advocate, NPA Phiri, JS, delivered the Judgment of the Court JUDGMENT Cases referred to: 1. 2. 3. 4. Kambarage Mpundu Kaunda vs. The People (1990/92) Z. R. 215 George Musupi vs. The People (1978) Z. R. 271 David Zulu vs. The People (1977) Z. R. 203 (Reprint). Nsofu vs. The People (1973) Z. R. 380 (Reprint). We sincerely apologize for the delay in rendering this Judgment. This was due to a number of factors beyond our control. f When we sat to hear this appeal, the Hon. Madam Justice Florence N. Mumba, Acting Deputy Chief Justice was with us. Madam Justice Mumba has since retired. This is therefore the majority judgment. The appellant was tried and convicted of murdering his wife contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. He was condemned to suffer the mandatory sentence of death. The particulars of the offence alleged that the appellant on the 26th day of October, 2006 at Mpulungu, in the Mpulungu District of the Republic of Zambia, did murder Anne Nakasula. The evidence that led to the appellant’s conviction was mainly given by Juliet Namutengu (PW1) and Kapembwa Sikasula (PW2) who were closely connected to both the appellant and his deceased wife. PW1 occasionally helped the couple with house-keeping while PW2 was the appellant’s brother in marriage, through his deceased sister. The couple lived in a two-roomed house consisting of a bedroom and a sitting room. J2 PW1 had been staying at the couple’s house while the couple went to the appellant’s village for a week. The deceased returned to the house a day before she was killed, while the husband came back in the night. According to PW1, during the night she and the deceased slept in the bedroom because the appellant was absent. Around 20.00 hours, the appellant came back home. He did not knock on the door but pushed it open and entered the sitting room. His wife, now the deceased, left the bedroom to investigate who had entered the house. When she asked for the identity of the intruder, the appellant did not respond. When the deceased identified the appellant, PW1 left the bedroom and shifted to the sitting room to sleep. The appellant and his wife proceeded to their bedroom and a short while later PW 1 heard the couple quarrel and fight. Later in the night, the deceased called PW1 to come to the bedroom and see what happened. The appellant did not allow this to happen. Later, calm returned and they all slept until 06.00 hours. The couple had one child of the family; a boy aged six years J3 who was away visiting his uncle, PW2, before the couple returned home. The next day around 12.00 hours, PW1 requested the deceased to escort her to the market, but the appellant did not permit her to go. PW1 proceeded to the market and returned home around 18.00 hours to retrieve her belongings as the home owners had returned. She found the door unlocked, the windows closed and the curtains drawn. PW1 pushed the door open, and entered the house. She found the deceased’s body lying dead in a pool of blood with a knife embedded in her neck, with its handle sticking out. PW1 reported her finding to PW2. When they came to the house, PW1 and PW2 did not find the appellant. They both observed that the bedroom was in disarray. The body was lying on the floor facing upwards. Next to the body was a blood stained pair of shorts, in which the appellant was dressed when PW1 last saw him with the deceased. According to both PW1 and PW2, the appellant was abusive to his wife and often fought with her. During the trial, PW1 identified the appellant’s blood-stained pair of shorts and the knife which she saw embedded in the J4 deceased’s neck. He told the trial Court that he was familiar with those items. According to PW2, the appellant used the knife to eat mangoes and regularly used the pair of shorts. He was dressed in it when PW2 last visited the couple earlier, on the same day. PW2 reported the case at Mpulungu Police Station. The appellant was apprehended five months later in Nakonde; over 90 kilometers away from the crime scene. According to PW2, he was apprehended under the false name of Fred Mbao. The postmortem examination on the body of the deceased was conducted by Dr. Mwamba, a Government medical officer stationed at Mbala District Hospital. The doctor’s report was tendered in evidence by the arresting officer. The cause of death was found to be trauma due to a stab wound in the neck with severed main artery. The report also indicated that the doctor found the knife still embedded in the deceased’s neck before he removed it. Both the knife and the blood-stained pair of shorts were admitted in evidence without objection. When put on his defence, the appellant denied stabbing and killing his wife. He also denied ownership of the exhibited knife and J5 pair of shorts. He admitted that he stayed away from his matrimonial home for over five months during which he never visited his family. His explanation was that he went to collect finger millet from his debtors in order to sell it in Tunduma, Tanzania, as he needed to raise some money for the next farming season; but his mission failed. He claimed that no one informed him of his wife’s death, and was surprised when he was apprehended by the police. He also denied that he was abusive to his wife. The learned trial Judge analyzed the evidence and concluded that the circumstantial evidence given by PW1 and PW2 had conclusively established that the deceased was last seen alive in the company of the appellant at their home; and that when she was discovered dead, with the knife stuck in her neck, the appellant was nowhere to be seen; only to be apprehended several months later over 90 kilometers away. The learned trial Judge considered the appellant’s explanation and concluded that he did not give the police any details of his alibi and that his disappearance from his own home was not an innocent conduct. The learned trial Judge concluded that the circumstantial J6 evidence against the appellant was overwhelming and it established, beyond any reasonable doubt, that the appellant killed his wife, with malice aforethought; and that he attempted to escape justice by disappearing from his own home. Thus, the learned trial Judge found the appellant guilty and convicted him as charged. The learned trial Judge also found no extenuating circumstances which would induce a reduction of the ultimate sentence of death. The appellant appealed to this Court and canvassed one ground of appeal. This is that; the learned trial Judge erred in law when he relied on the uncorroborated evidence of PW1 and PW2 in convicting the Appellant. In support of the single ground of appeal, Mr. Chomba filed written heads of argument which he orally augmented. The thrust of Mr. Chomba’s argument was that PW1 and PW2 were witnesses with possible interests of their own to serve and the learned trial Judge ought to have declared them as such. It was contended, firstly, that PW1 was staying with the deceased at the time of her death. PW1 was also the person who discovered the deceased’s body. Secondly, it was contended that both PW1 and PW2 were related to the deceased. In support of this J7 contention, Mr. Chomba cited our decision in the case of Kambarage Mpundu Kaunda vs. The People*1’ which stated among other things, that: “Prosecution witnesses who are friends or relatives of the prosecutrix may have a possible interest of their own to serve and should be treated as suspect witnesses. The Court should therefore warn itself against the danger of false implication of the accused and go further to ensure that that danger has been excluded”. Mr. Chomba, also cited our decision in the case of George Musupi vs. The People*2’ which defined the general approach on how to determine whether or not a witness would have a possible interest of his or her own to serve. In that case, it was stated that: “The critical consideration is not whether the witness does in fact have an interest or a purpose of his own to serve, but whether he is a witness who, because of the category into which he falls or because of the particular circumstance of the case, may have a motive to give false evidence”. Mr. Chomba, therefore, argued that PW1 and PW2 were clearly witnesses with possible interests of their own to serve and ought to have been declared as such by the learned trial Judge. It was submitted that the danger of false implication was present in the instant case and this danger ought to have been excluded before a conviction could be held to be safe on the basis of J8 the uncorroborated evidence given by PW1 and PW2. According to Mr. Chomba, this was a misdirection warranting this appeal to succeed. On behalf of the respondent, Ms Mumba supported the conviction and sentence. She submitted that the learned trial Judge was on firm ground because the circumstantial evidence against the appellant proved that he committed the offence, to the required standard as set by this Court in the case of David Zulu vs. The People’3’. In that case we held that: “ 1. It is a weakness peculiar to circumstantial evidence that by its very nature, it is not direct proof of a matter at issue, but rather is proof of facts not in issue but relevant to the fact in issue and from which an inference of the fact in issue may be drawn. 2 . It is incumbent on a trial Judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilt. 3..................”. It was submitted that in the present case, the appellant was the last person seen by PW1 with the deceased when she was alive. There was also evidence from both PW1 and PW2 to the effect that the appellant and the deceased did not get on well; that the J9 appellant was abusive and the couple fought the previous night before the deceased was murdered. Ms Mumba further submitted that the appellant disappeared from the couple’s matrimonial home and was never seen from the time his wife was discovered to have been murdered until over five months later when he was apprehended in a different town. According to Ms Mumba, the circumstantial evidence against the appellant was strong and it was supported by the appellant’s conduct when he disappeared soon after the murder. It was contended that the only inference in the circumstances of this case was that the appellant is the person who killed his wife. It was also contended that if the appellant was innocent he would have been present during the funeral of his wife. His absence very strongly suggested that the appellant went into hiding after committing the offence. Ms Mumba referred us to a portion of PW2’s evidence in the record of the appeal, where PW2 gave a narration of the appellant’s answer to the question, why he killed his wife. This was after the appellant was apprehended in Nakonde. According to PW2, when J10 he asked the appellant why he killed his wife, the appellant’s answer was that he was “tempted to do so by the devil”. According to Ms Mumba, the appellant’s answer to PW2’s question amounted to an uncontested confession to an ordinary witness; and supports the strong circumstantial evidence against him. In brief, these were the submissions made on behalf of the respondent. Mr. Chomba’s reply was this; on the non-attendance at his wife’s funeral, Mr. Chomba drew our attention to the appellant’s explanation that he was not aware of her death and funeral, because he was at the village. It was argued that there was no evidence that the appellant deliberately stayed away from his wife’s funeral. Regarding the confession allegedly made by the appellant to PW2, Mr. Chomba argued that at the time the appellant is said to have confessed to PW2, he had been apprehended and was in the hands of the Police and, therefore, he could not have made the confession statement to PW2 in the absence of police officers. It was, therefore, submitted that the alleged confession evidence was Jll inadmissible. We were urged to allow the appeal and set the appellant at liberty. We have considered the single ground of the appeal and the arguments and submissions exchanged by the parties. We have also considered the evidence on the record of the appeal, the authorities cited and the judgment of the Court below. Considering that the appellant’s ground of the appeal focuses on corroboration, the issue that determines this appeal is whether the evidence of PW1 and PW2 was corroborated or supported by some other independent evidence. If the answer is in the affirmative, then the conviction was on firm ground. It is cardinal in this case to recognize, first and foremost, that the prosecution’s case was anchored on circumstantial evidence. The principles of circumstantial evidence have been highlighted in a legion of decided cases, one of which is the David Zulu case’31. As correctly observed by Mr. Chomba, PW1 and PW2 were related to the deceased. PW1 and PW2 were also related to the appellant, through the appellant’s marriage to the deceased. It is a case whose facts and circumstances are entirely based on events J12 that occurred in the couple’s matrimonial home. More importantly, it is a case where the prosecution witnesses, PW1 and PW2, gave evidence that the appellant was abusive of his wife, which the appellant denied. Further, it is a case where the appellant, as the deceased’s husband and father of the couple’s only infant son, admitted in his evidence that he abandoned his matrimonial home; that he did not even know that his wife had died; and that he only came to know when he was apprehended by the police six months later. The appellant, in his evidence, neither commented nor disputed PW2’s evidence that he used the false name of Fred Mbao when he was apprehended by the police. All these were material facts relevant to the fact in issue; which were available to the learned trial Judge. In addition, the learned trial Judge addressed his mind to the question of credibility of PW1 and PW2 as against the appellant and found PW1 and PW2 to be credible and truthful in their evidence. In dismissing the appellant’s claim of innocence, this is what the learned trial Judge stated: “There is, however, circumstantial evidence given by PW1 and PW2 to the effect that the deceased was last seen alive in the company of J13 the accused and that when she was discovered dead with the knife stuck in her neck, the accused had disappeared only to be apprehended over ninety kilometers away in Nakonde over five months later”. In determining this appeal, we wish to begin by summarily addressing the respondent’s argument that the appellant’s confession made to PW2 was also available to the learned trial Judge, as evidence. We do not agree. The appellant was taken into custody by police in Nakonde and PW2 accompanied police officers from Mpulungu who went to take charge of the appellant. As correctly argued by Mr. Chomba, PW2 must have met the appellant when he was already in police custody. In his evidence, PW2 stated that when a police officer called the name ‘Fred Mbao’ the appellant responded and came over to the reception from the police detention cells. In the circumstances, it is logical to conclude that the appellant’s alleged confession made to PW2 was not admissible. In any event, the alleged confession to PW2 was not considered by the learned trial Judge in his reasoning. The main argument advanced in support of the lone ground of the appeal is that PW1 and PW2, by virtue of their relationship to the deceased, were suspect witnesses; and that their evidence was J14 not corroborated. While we agree that PW1 and PW2 were in the category of suspect witnesses, we do not think this is an aspect of this case that took the centre stage in the reasoning by the learned trial Judge. A reading of the lower Court’s judgment clearly reveals that the conviction was based on the strong and compelling circumstantial evidence against the appellant; coupled by the issue of credibility of PW1 and PW2, as against the discounted evidence given by the appellant. Indeed, strong and compelling circumstantial evidence that takes the case out of the realm of conjecture so that it attains a degree of cogency which can permit only an inference of guilt, does justify a conviction. This is the essence of our decision in the David Zulu case(3). In the instant case, the learned trial Judge did consider and correctly assessed all the facts and circumstances surrounding the deceased’s killing, including the appellant’s own story; and concluded that the circumstantial evidence against the appellant was overwhelming. The trial Court was obliged not to ignore the circumstantial evidence, in accordance with our decision in the David Zulu case(3). By so saying, in no way are we suggesting that J15 the evidence of PW1 and PW2 was not corroborated. We have stated, in many cases, that opportunity to commit the crime can amount to corroboration. We have taken this position mostly in cases involving family members, as in the present case. The term “corroboration” has been discussed in a legion of cases. One such case is Nsofu vs. The people’4’ where it was held, inter alia, that: “(5) Corroboration must not be equated with independent proof; it is not evidence which needs to be conclusive in itself. (6) Corroboration is independent evidence which tends to confirm that the witness is telling the truth when she says that the offence was committed and that it was the accused who committed it”. (7) Where the evidence of a witness requires to be corroborated, it is nonetheless the evidence of the witness on which the conviction is based; the corroborative evidence serves to satisfy the Court that it is safe to rely on that of the witness”. In the Nsofu case*4’, Baron, DCJ specifically referred to situations when evidence of opportunity can amount to corroboration. This is what he stated: “Whether evidence of opportunity is sufficient to amount to corroboration must depend upon all the circumstances of the particular case. In Credland vs. Knowler (1951) 35 Cr. App. R48, Lord Goddard CJ at page 55 quoted with approval the following dictum of Lord Dunedin in Dawson vs. Mackenzie [(1998) 45 Sc. L. Rep. 474]: “Mere opportunity alone does not amount to corroboration, but...... the opportunity maybe of such a character as to bring in the element of suspicion. That is, that the circumstances J16 and locality of the opportunity may be such as in themselves to amount to corroboration”. In the present case, the appellant was seen by PW1 and PW2 with the deceased on the day the offence was discovered at the couple’s home. He did not say that he was with anybody else, anywhere else outside his house. Thus, he had opportunity to kill the deceased. In addition, the appellant conceded that he stayed away from his own home, leaving behind his wife and son whose situation he was unaware of for a considerable period of over five months. His absence from home from the day the offence was committed until he was apprehended, strengthens the circumstantial evidence against him, and removes the possibility of conjecture. Further, there is evidence from PW1 that the appellant was wearing a familiar pair of shorts, without a shirt, when he was last seen with the deceased at the couple’s home, and that there was a quarrel between the couple during the previous night, in the couple’s bedroom. When the killing was discovered, the appellant’s pair of shorts was found by PW1 and PW2 next to the deceased’s body, and drenched in blood. The appellant did not offer any J17 explanation, besides his general denial. This discovery strengthens the circumstantial evidence against the appellant. Further still, the evidence that the appellant used the false name of Fred to the police does not demonstrate innocence. With all these factors considered, we are satisfied that the evidence of PW1 and PW2 was corroborated by the evidence of opportunity, and the evidence of the appellant’s suspicious conduct. We find no merit in the appeal and we dismiss it. H. Chibomba SUPREME COURT JUDGE G. S. iri SUPREME COURT JUDGE J18