Kachomba and Ors v People (Appeal 54 of 1985) [1988] ZMSC 57 (20 January 1988)

i ‘i WW* . ■> -*v' »• ’ IN THE SUPREME COURT OF ZAMBIA Appeal Nos. 54, 56 of 1985 HOLDEN AT LUSAKA (Criminal Jurisdiction) FREDRICK CHIZA KACHOMBA JAMES LUFUNSU-DEO KENNEDY MUPENDA 1ST Appellant 2ND Appellant 3RD APPELLANT - v - THE PEOPLE Respondent CORAM: Silungwe, C. J., Ngulube, D. C. J and Gardner, J. S. 20th November, 1987 and 20th January, 1988 W. Henriques, Senior Legal Aid Counsel, for the 1st appellants F. S. Kongwa, of Kongwa & Company, for the 2nd appellant K. C. Chanda, Senior State Advocate, for the respondent JUDGMENT Ngulube, D. C. J., delivered the judgment of the court Cases Referred to: (1) Chimbini -v- The People (1973) ZR 191 (2) -v- Turnbull (1976) 3 ALL E. R. 549 (3) Mu11ata & Emang -v- R. (1963) R & N 486 (4) Timothy and Mwamba -v- The People (1977) ZR 394 The appellants were sentenced to suffer death following upon their conviction on a charge of aggravated robbery Involving the use of a firearm. The particulars alleged that on 31st January, 1984 at Solwezi, jointly and whilst acting together and whilst armed with a firearm, they stole the property listed in the charge sheet from the complainant. The fact that the robbery alleged took place was not in dispute. On 31st January, 1984, PW.2, a Chief telecommunications officer with P. T. C. was being driven in a company vanette by his driver, PW.6, from Ndola to Solwezi. At about 12.30 hours they reached a place called Mutenda and they had stopped for refreshments when three men came and asked to be given'a lift to 2/......................... Solwezi J2 Solwezi. According to PWs 2 and 6, these were the appellants and that the first appellant was the spokesman for them all when asking for the lift. The journey continued and after a while they stopped to give a lift to PW.9. Further on they stopped again to give a lift to two old ladies and a boy. The journey continued until they got to Lunga Namboard Depot when someone-said to be the third appellant- signalled for a halt by hitting the top of the vanette. The vehicle stopped and the third appellant is said to have announced the need to answer the call of nature. They all took advantage of the stop to do likewise. The time was now around 15.30 hours. The prosecution case was that it was at this stage, when PWs 2 and 6 were about to resume their journey, when the armed robbery took place. The first appellant is said to have produced a revolver, ordered everyone out and demanded the car keys from PW 6 and money from PW 2. The second appellant got the keys from PW 6 while the first appellant was told by PW 2 that the money he wanted was in the briefcase which was in the car. The third appellant is said to have opened the door for PW 2 to get out of the vehicle as ordered by the first appellant. The prosecution case was further that the first appellant ordered the witnesses to run and, as they did so, the three appellants drove off with the vehicle and the witnesses' property. The appellants were apprehended the next day and they were identified at an identification parade held on 22nd February, 1984. The prosecution case was also that, at the time of their apprehension in different places but within the same general area near the Zambia/Zaire border, each was in possession of one or more items of property taken In the robbery. The learned trial judge found that there was overwhelming evidence identifying the appellants as the robbers and convicted them. The appeals are against the convictions. The first ground of appeal taken up by Miss Henriques and echoed by Mr. Kongwa attacked the finding that the evidence of identification was overwhelming against the appellants. The upshot of Miss Henriques' submissions on behalf of the first and third appellants was that the learned trial judge had misdirected himself in so finding when, among other things, the case record gave no indication that the witnesses had given any descriptions of the 3/.................... robbers J3 robbers to the police when they first made their report, that the descriptions of the attire worn by the robbers did not tally, and that the descriptions of the physical features of the robbers did not suggest anything distinctive and could apply to many other persons in this country. It was her submission that there was in fact no adequate opportunity for the witnesses, both at Mutenda and at Lunga, to make any reliable observations. Thus, the time taken to ask for a lift was very short, there was no particular need to observe closely the persons asking for a lift, and PW 2 was not directly involved in the discussions and could not have paid much attention.. With regard to the traumatic events at Lunga, PW 6 was told to lie down and then they were all told to run away. There was accordingly no opportunity to make reliable observations and that the purported identification of the appellants must have been suspect and required something more before the possibility of a mistaken identification could be ruled out. Mr. Kongwa adopted these arguments for his client, the second appellant. ( With regard to the identification parade. Miss Henriques submitted that the failure by the prosecution to produce in evidence the photographs taken indicated that the appellants must have been readily identifiable. With regard to PW 2's briefcase allegedly found in the possession of the third appellant by PWs 5 and 7, it was argued that they gave conflicting descriptions of it. In relation to the first appellant, the submission was that it must have been untrue to say that PW 13 found him wearing PW 2's jacket since the police must have picked up an Innocent man walking back to Zaire and later concocted a case against him. Mr.kongwa's arguments on the question of identification, apart from adopting those of Miss Henriques, were that PWs 2 and 6 had a poor opportunity to identify the second appellant. It was pointed out that PW.9, who was a fellow passenger at the back of the vanette had the longest opportunity to identify and yet he failed to identify the second appellant. It was his further submission that even the descriptions of the second appellant's clothes were unsatisfactory z' 4/......................and J4 and that, in relation to his being identified at the parade, had the learned trial judge properly analysed the evidence, he would have accepted the second appellant's allegation that the police had him wear the witnesses' clothes, no doubt to facilitate his identification. The argument on this issue was that, since PW 2's shirts were in the briefcase recovered from the third appellant, the police must have given the second appellant one of the shirts to wear while he was in their custody. Both counsel also submitted to the effect that had the learned trial judge properly analysed the evidence, especially that concerning the sighting of the stolen vehicle in Zaire later on the day of the robbery and the improbability of the appellants returning to Zambia to be apprehended the next day, he would not have dismissed their alibis which the police failed to investigate. Mr. Chanda, for the State, argued that the case against the appellants was so strong that none of the submissions should be entertained. He relied on the evidence on record and submitted that if there were any in­ consistencies, these were of a minor nature. We have considered the arguments and the submissions on the issue of identification. We find that the learned trial judge was on firm ground when he held that there was in fact no possibility of any mistaken identification in this case. The submissions concerning the need to test the witnesses's reliability by, among other things, examining the opportunity available to them to make reliable observations and the question whether they had given any description to the police are relevant. But these are matters which should be canvassed at the trial, especially where the case depends on the Identification of an accused by a single witness and where the conditions favouring a correct identification were difficult. In the present case, three witnesses identified the first and third appellants while two witnesses identified the second appellant. The problems encountered in a single identifying witness situation are not so pronounced where two or more witnesses identify the same accused and where, on the facts, the witnesses had more than just a fleeting glimpse of the accused. The warnings in such cases as Chimbini -v- The People (1) and R -v- Turnbull (2) were '6nly intended 5/................ to J5 to deal with fleeting glance sightings and are not required In every case involving a minor Identification problem. If any. In this case, the robbery took place in broad day light and the learned trial judge carefully considered the opportunity available to the witnesses. If any connecting link was required to reinforce the identification, the learned trial judge found that each of the appellants was so connected: the first appellant was found to be wearing PW 2's jacket the very next day when he was apprehended by PW 13; the second appellant was found to be wearing, at the village wherehe was apprehended, PW 6’s jersey and trousers and at the parade PW 2 identified one of his shirts on his person; and the third appellant was found in possession of PW 2's briefcase containing various items. We are, of course, alive to the submissions made concerning these stolen properties. We find that the suggestion that the identification of the first appellant by PWs 2, 6 and9 and the finding of the jacket on him by PW 13 were all a concoction of the police to be far fetched. The suggestion that the police had the second appellant wear the witnesses* clothes is also not tenable. The evidence of PW 11, who apprehended the second appellant, established that he was at the time wearing PW 6*s jersey and trousers and a shirt which was marked ID6 at the trial and which belonged to PW 2. When PW 2 gave evidence, he specifically stated that the second appellant was wearing his shirt ID6 at the parade. It was argued that this shirt must have been in the briefcase recovered from the third appellant. This is not correct. PW2 gave evidence that, apart from the briefcase, he also had a travelling bag. PW 17 gave detailed evidence of what was in the briefcase when it was recovered by the police, namely, some documents, two shirts which were marked as ID7 and IDS, a safari jacket, a pair of long trousers and a towel (see the case record from the last line at page 31 to page 32). PW 17 further stated that he recovered the shirt ID6 only after the owner had identified it on the person of the second appellant at the parade. With regard to the third appellant, PWs 5, 7 and 10 saw him with PW 2's briefcase the very next day after the robbery. They all Identified the same briefcase in court and it is therefore untenable to argue that there was any doubt created by their evidence concerning the description of the briefcase. 6/......................... It J6 It Is quite clear, in our considered view, that whatever doubts it may be suggested could be entertained with regard to the direct identification of the appellants by the witnesses, the finding of stolen property in their possession the very next day leaves no room for any such doubts and fully supported the identification. With regard to the alibis and the sighting of the vehicle in Zaire on the day of the robbery by officers who allegedly reported this fact to their superior, we take note that all the appellants were actually in the relevant area at the time and they were all apprehended in that same general area. There is, of course, no duty on the part of the police to investigate alibis for which verifiable details have not been supplied, and, once an overwhelming case has been established, as it was in this case, such alibis are necessarily disproved by such overwhelming case. Miss /Henriques also criticised the learned trial judge for commenting that he could see no reason why PWs 5, 7 and 10 should have told lies against the third appellant when they said he had PW 2's briefcase. She submitted that, in accordance with Muiiata and Emang -v- R (3), it was a misdirection for the learned trial judge to have expected the third appellant to give reasons why the witnesses testified in that particular manner. We have examined the passage complained of, which is at page 70 of the record, and we are quite satisfied that the learned trial judge was not there expecting the third appellant to give any reasons. He was simply examining the evidence against the third appellant and evaluating the witnesses' credit in its own right and without reference to any expectation that the third appellant should have given any reasons as alleged. Muilata (3) is inapplicable and we see no misdirection in the remarks made. The second ground of appeal attacked the finding that the gun found on the first appellant was the one used in the robbery. The argument by Miss Henriques was that there was no proper description of the ;revolver given and that PW.2, who had only seen a portion of the gun and who later said the sighting on the exhibit looked slightly 7/.......................different J7 different, might have meant that the gun produced in court was not the gun used in the robbery. We are aware that the gun used must be properly identified and that thbre must be a proper link between the gun found and alleged to be the one used and that which was actually used. We are also aware, as we discussed in Timothy & Mwamba -v- The People (4), that the question is not whether any particular gun which is found and is alleged to be connected with the robbery is capable of being fired but whether the gun seen by the witnesses was so capable. In this case, a revolver recovered from the first appellant on 1st February,. 1984 was found to be capable of firing and it was described by the witnesses as being similar to the one used at the scene of the offence the previous day. The learned trial judge found that it would be too much of a coincidence that the first appellant should be found the very next day after the robbery in possession of a revolver similar to the one the witnesses said he had produced at the robbery. We agree with the learned trial judge. The first appellant was the person identified by PWs 2, 6 and 9 as the one who produced the revolver; he was the next day found not only wearing PW 2’s jacket but in possession of a similar revolver and apparently In the process of returning to his own country. He was apprehended after a struggle during which he pulled out that same gun against PW 13. The circumstantial evidence is so strong that the conclusion is not to be resisted that the first appellant only had the one revolver and that it was the same gun seen by the witnesses at the scene which he attempted to use against PW 13. Mr. Kongwa argued to the effect that there was nothing in the evidence to show that the second appellant knew that the first appellant had a gun and would use it. Mr. Chanda relies on the circumstances of the offence Itself to counter this submission. We agree with Mr. Chanda that, on the facts of the case, it is quite obvious that the three appellants had set out on a joint venture whose execution took the form described by the witnesses and no other. The first appellant had asked for a lift for all of them and and when the property was taken, it was the brandishing of the revolver which subdued the victims. The taking of the property was co-ordinated and indeed it was the second appellant, according to PW2, ft 8/................ who J8 who even took over the driving when the appellants made off with the vehicle and the other property. The learned trial judge was thus not in error when he found that the conduct of the second and third appellants at the time of the robbery was such that they knew that the first appellant was armed and that they did not dissociate themselves. On the contrary, they played their full roles in the robbery. These appeals cannot succeed and we dismiss them all. ANNEL M. SILUNGWE CHIEF JUSTICE M. S. NGULUBE DEPUTY CHIEF JUSTICE B. T. GARDNER SUPREME COURT JUDGE