Joseph Kabaso and Anor v People (SCZ 14 of 2002; SCZ 15 of 2002) [2003] ZMSC 159 (5 August 2003)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 14 & 15 OF 2002 HOLDEN AT KABWE (Criminal Jurisdiction) JOSEPH KABASO SAMUEL JERE VS THE PEOPLE 1st APPELLANT 2nd APPELLANT RESPONDENT Coram: Sakata, CJ., Chibesakunda and Silomba JJS 6th November, 2002 and 5th August, 2003 For the Appellants: Mr. A. A. Mulemena, Principal Legal Aid Counsel. For the State: Mrs. E. M. Chipande, Deputy Chief State Advocate. JUDGMENT Sakala, CJ., delivered the Judgment of the Court. The Appellants were convicted of aggravated robbery contrary to Section 294(1) of the Penal Code Cap 87 of the Laws of Zambia, The particulars of the offence alleged that the two Appellants, on 6th March, 1998, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, robbed Rhoda Kapembwa of various household items valued at K5 million, the property of the said Rhodah Kapembwa and used violence at the time of the robbery. Both Appellants were sentenced to 15 years Imprisonment with Hard Labour. They have appealed against their convictions. The prosecution evidence conclusively established that on the 6th March, 1998, the complainant, PW1, was robbed of the various items in question. Some of these items were recovered. The issue for determination by the court was the identity of the perpetrators of the robbery. The evidence of the complainant, PW1, was that the robbery took place at night but that she recognized the 1st Appellant as soon as the gang of robbers broke into the house. Later the robbers switched on the bedroom lights. She then saw the face of the 1st Appellant as he entered into the bedroom. It was also the evidence of PW1 that she knew the 1st Appellant since their childhood. PW1 subsequently led the police to the house which she pointed out to be the house where the first Appellant lived. It was from this house, pointed out to the police by PW1 that some of the items stolen from her were recovered. Both Appellants denied, in their evidence on oath, of any involvement in this robbery. The learned trial Judge accepted the evidence of PW1 supported by the evidence of PW3, a Police Officer, who recovered the stolen items from the house pointed out by the complainant. The court accepted that PW1 knew exactly where the 1st Appellant lived. As regards the second Appellant, the court accepted that upon his apprehension for the offence of escaping from lawful custody, he confessed, under Warn and Caution Statement, to have taken part in the robbery. The court accepted the second Appellant's Warn and Caution Statement; there having been no objection; and the second Appellant having denied making any confession to the police. The making of the statement then became a general issue. The court rejected the two Appellant's denial of having taken part in the robbery and convicted them accordingly. On behalf of the Appellant, Mr. Mulemena argued that the learned trial judge misdirected himself in accepting the evidence of identity of the first Appellant when there was no identification parade. It was argued that the learned trial judge erred in law and fact by relying on the evidence of a single witness who was considered to be an interested party. It was further argued that the learned trial judge misdirected himself by relying on the evidence of the police. It was also argued that the learned trial judge misdirected himself by finding that the appellant made a confession to the police. On behalf of the State, Mrs. Chipande supported the convictions. She contended that the evidenced of identity of the 1st Appellant by PW 1 was not shaken and was fortified by the recovery of the stolen items from the house where the first Appellant lived. It was also submitted by Mrs. Chipande that the voluntariness of the confession statement was not an issue in the instant case as both denied making any statements to the police. We have considered the evidence on record and the judgment of the learned trial judge as well as the submissions by both learned counsel. While we accept that there was no identification parade, the evidence the court accepted was that PWI knew the first Appellant and that she led the police to the house where the first Appellant lived. It was from this house where some of the stolen items were recovered. The argument that PW1 was an interested party is not supported by the evidence. But if she was, then her evidence is supported by the recovery of the stolen items from the house where the first Appellant lived. The learned trial judge in dealing with the evidence of identification in relation to the first Appellant had this to say "Further, I observed the demeanour of PWI during her testimony and I must say without any hesitation that she struck me as a truthfui and candid witness. I therefore accept her evidence that she knew Al well before the robbery and that she recognized Al during the robbery. I am fortified in finding by evidence of the discovery of some of the stolen items which were presented to court." The learned trial judge, who had the opportunity to observe PWI, was entitled to make these observations and findings. As an appellate court, who had no opportunity to observe PWI, cannot fault the trial judge. In dealing with the case against the second Appellant, the court had this to say:- "The evidence against A2 is in two parts. The first part is thatA2 was apprehended by PW2 for an offence of escaping from lawful custody which he charged him with and surrendered him to Lusaka Division where PW3 interviewed him in connection with the offence of Aggravated Robbery following information received from Al. The second part is that A2 confessed to PW3 under warn and caution, to have taken part in this robbery. As indicated already, I accepted A2's confession in evidence because there was no objection. Clearly, this is really the only substantial evidence against A2 apart from his having been mentioned by Al." The trial court was again entitled to make these findings. Having made these observations and the findings, the court was left with no alternative but to convict the Appellants as charged. We are satisfied that the evidence against both Appellants was overwhelming. We accordingly find no merit in the appeals against convictions. They are dismissed. No appeal lies against the mandatory sentence of 15 years Imprisonment with Hard Labour for the offence of aggravated robbery. L. E. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE SUPREME COURT JUDGE