Maybin v ThePeople (Appeal 43 of 2013) [2014] ZMSC 11 (7 April 2014)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 43/2013 BETWEEN: KAMU SIMWAWA MAYBIN APPELLANT AND THE PEOPLE RESPONDENT Coram: Mumba, Ag. DCJ; Muyovwe, JS and Hamaundu, Ag. JS on the 7th May, 2013 and 8th April, 2014. For the Appellant: Mr. A. Ngulube, Director of Legal Aid For the Respondent: Mrs. M. M. Bah, Senior State Advocate Muyovwe, JS, delivered the Judgment of the Court. JUDGMENT Cases referred to: 1. DPP vs. Woolmington (1935) AC 462 2. Fawaz and Chelelwa vs. The People (1995-1997) Z. R.3 The appellant was convicted of one count of murder contrary to Section 200 of the Penal Code. The particulars of the offence were that on 29th February 2008, at Nchelenge in the Luapula Province of the Republic of Zambia, the appellant murdered Joseph Kalobwe (hereinafter called “the deceased”). J1 On the second count, he was convicted of the offence of attempted murder contrary to Section 125 of the Penal Code. The particulars were that on the 29th February, 2008 at Nchelenge in the Luapula Province of the Republic of Zambia, he willfully attempted to murder Alice Mwansa Simwawa. On the count of murder, he was sentenced to suffer the death penalty while on the case of attempted murder he was sentenced to 10 years imprisonment with hard labour. The facts were that on the 29th February, 2008 the appellant arrived at the home of PW1 and the deceased where he was given food and the couple chatted with him before retiring to bed. That during the night while asleep, PW1 was attacked together with the deceased (who was her husband). It was PW1’s evidence that she did not hear when the deceased was being beaten although he was beaten first. She was awakened from sleep by the beatings on her person when she saw that it was the appellant who was beating her. She said he was in the company of Chisanga and another person whom she could not identify. She said she grabbed the appellant by the neck and he bit her finger. J2 She identified him (as her brother) as there was a lantern lamp in the house and that she asked him why he was beating her. She was later hospitalized for a month and she later discovered that her husband had died from the injuries sustained in the attack. PW2 rushed to PW1’s house upon hearing loud cries and found both PW1 and the deceased naked. PW2 later arranged for the transportation of the couple to St. Paul’s Mission Hospital where they were admitted. However, the deceased died shortly after admission. According to PW2, the deceased’s house was searched and a cigarette lighter, slippers and a shirt belonging to the appellant were found in the house. PW2 stated, however, that the shirt which was found in the house was the same shirt which the appellant had worn on the day that he left for Matanda area in Mansa. These items were handed over to the Police. He added that on the 25th February, 2008 being a village headman, the deceased reported to him that the appellant had stolen K500,000.00 (old currency) from him. According to the evidence of PW3, the deceased had lost K500,000 on 25th February, 2008 and it was discovered that the J3 appellant had stolen it and in his presence, the deceased confronted the appellant. The money was then recovered. That shortly thereafter the appellant decided to leave for Mansa without bidding farewell but that he last saw the appellant on the 25th February, 2008 wearing the clothes he had given him. PW3 who is the appellant’s elder brother said that he was informed of the attack on his sister (PW1) and the deceased by some people. When he questioned PW1 as to what had happened she said she did not know. However, when he checked around the house, he found the clothes which he had given his young brother, the appellant on the bed. This witness said PW1 was admitted for seven days in the hospital. In cross-examination he said he was surprised that the appellant’s clothes were found in the same house where the murder had taken place when he had worn the said clothes the day he disappeared. PW4’s evidence was that she nursed PW1 who was in hospital for three weeks. PW5 identified the body of the deceased for postmortem examination and he observed that the deceased’s private part was severed and one eye was removed. J4 There was evidence from PW6 that he met the appellant in Matanda after he came from Kashikishi and that he had bruises on the neck and face. That the appellant said he sustained the injuries in Kashikishi where he had just come from having travelled the whole night. This was on 1st March, 2008. However, PW6 could not confirm what had happened to the appellant. This witness was declared a hostile witness. PW7 was Detective Constable Sefu Sesiku the Investigations Officer. He explained his findings during investigations and that after interviewing witnesses he made up his mind and arrested and charged the appellant with the subject offences. In his defence, the appellant explained that on 15th January, 2008 he had gone to visit his sister PW1 and his brother PW3. After failing to find employment he said he decided to return to Mansa on the 25th February, 2008. He said he was given K30,000.00 (old currency) for transport by the deceased who even bought him fish as he left. He said he had a cordial relationship with his sister PW1 and the deceased. The appellant said he left the clothes and slippers at his sister’s house because J5 they were given to him to use at the time when he had washed his clothes. The appellant stated that PW1 accused him of attacking her and her husband because she was “bad and does not get along with anybody even her own mother.” The appellant said PW6 lied when he said that he met him on 1st March, 2008 and also said that he lied about the scars on his neck. Basically, the appellant denied attacking PW1 and the deceased and he stated that he did not return to Kashikishi after he left on the 25 th February, 2008. After analyzing the evidence, the learned trial Judge found as a fact that: “(a) The appellant went to the house of the couple on the day they were attacked; (b) PW1 saw the appellant attacking her; (c) The clothes which included a shirt, Exhibit P.2 and the slippers, exhibit P.3 that the appellant was seen wearing when he left after visiting the couple were found in the house after the couple was attacked.” The learned trial Judge found that the prosecution had proved its case beyond reasonable doubt and convicted the appellant for the subject offences. Mr. Ngulube, the learned Director of Legal Aid, filed his heads of argument and advanced one ground of appeal namely: J6 “The Court below erred in fact and in law by finding that the appellant was guilty of murder and attempted murder by relying on the evidence of PW1 and PW3 as their evidence was partly hearsay, inconsistent and unreliable. The prosecution case was not proved beyond reasonable doubt.” At the hearing of the appeal, Mr. Ngulube relied entirely on his heads of argument. The gist of this ground of appeal is that the learned trial Judge erred when he relied on the evidence of PW1 and PW3. Counsel attacked the evidence of PW1 and stated that her evidence was inconsistent in that she did not know what had happened and that she narrated a reconstructed version of the events of 29th February, 2008, not so much from her memory and personal recollection but from what she was told and also using her imagination as to what may have transpired on that night. It was submitted that PW1’s evidence was unreliable and that her evidence that there was a lantern lamp which provided light for her to see her assailant was not true. It was submitted that according to PW1’s evidence in cross-examination she woke up after being struck and grabbed the assailant by the neck. She said three people entered her house and she was able to identify J7 the appellant and one Chisanga whom Counsel wondered why he was not apprehended and charged with the appellant. He pointed out that PW1 stated that the appellant left for Matanda and returned on the fourth day and that she said he ate nshima and chatted with her before she retired to bed on the night in question. Counsel submitted that this story is not consistent with PW1’s earlier testimony where she said the appellant stole K500,000. That one wonders how the appellant could go back to Kashikishi where he had stolen money and how he could be welcomed, given food, and allowed to sleep in the house of the people he had allegedly stolen from. With regard to the evidence of PW2, it was pointed out that contrary to PW1’s evidence that her lantern lamp was on, PW2 did not find any light when he went to the house. It was contended that PW1 said there was light in order to justify her purported recognition of the appellant as one of her assailants. It was submitted with regard to the appellant’s absence that neither the elder brother to the appellant nor PW2 had seen the appellant return to Kashikishi on 28th February, yet PW2 lived 30 metres away from the deceased’s house. It was pointed out that PW2 J8 testified that the appellant’s elder brother and sister found a cigarette lighter, slippers and a shirt which belonged to the appellant which he had worn on the day when he left for Matanda. That in cross-examination PW2 stated that he and two police officers searched the house of the deceased and found nothing apart from the torn blouse. That PW2 was aware that the appellant was kept by the deceased and was given clothes by the elder brother not the deceased and the shirt was the only one he had and could not have left it when he left. That PW2 admitted that the appellant left the place four days before the fateful day of 29th February, 2008 because the deceased told him that the appellant never came back to that house. In tackling the evidence of PW3, Counsel submitted that his evidence was hearsay and that he contradicted what PW1 said. That PW3 stated that some of the clothes that he gave the appellant, that is, the shirt and slippers were found on the bed and that he was surprised to find them as these were the clothes that the appellant was wearing when he left. He also pointed out the contradiction in that PW1 said she was admitted in hospital for one month yet PW3 said she was admitted for seven days. J9 Counsel submitted that the logical conclusion with regard to the items which were found on the bed is that the appellant left the items when he went to Matanda on 25th February, 2008 and that the assailants were the ones who left the place in disarray. Counsel argued that on the charge of murder which carried the death sentence, the prosecution must prove their case beyond reasonable doubt that the person facing the charge committed the offence. In this case, he submitted that the prosecution failed to prove their case. Counsel relied on the case of DPP vs. Woolmington1. Counsel in conclusion submitted that the conviction of the appellant was unsafe and urged the Court to allow the appeal and set aside the sentence and set the appellant at liberty. There were no submissions from the State. We have considered the evidence on record, the judgment of the Court below and the submissions by the learned Director of Legal Aid. The sole ground of appeal attacked the learned Judge’s reliance on the evidence of PW1 and PW3 on the ground that the J10 same was hearsay, inconsistent and unreliable. First of all, it is important to bear in mind that the learned trial Judge had the opportunity to observe the demeanour of the witnesses. In our view, PW1’s evidence was clear that she saw the appellant, her own brother attack her that night. We acknowledge the contradiction between PW1 and PW3 where he said she told him she did not know what happened. However, PW1 was emphatic that she saw her attacker as the appellant her brother. We, therefore, tend to believe, as the learned trial Judge did that PW1 saw the appellant attack her that night. We do not agree with the argument by the defence that there was no lantern lamp that night. Simply because by the time PW2 responded to PW1’s cries the couple’s house was in the dark cannot lead us to conclude that there was no lamp at the time of attack. Further, we do not accept the argument that PW1 reconstructed the events of the night from what she was told or from memory. The appellant is her own brother and we believe as the learned trial Judge did that she was able to identify him at the time of the attack and she even asked him what she had done for him to attack her. J11 Further, we also find no reason why PW3 his own brother could also give false evidence against him. The appellant even disputed the evidence of PW6 who said he met him and observed that he had bruises on his neck and he claimed that he was tired as he had travelled the whole night. In fact there was evidence to show that he refused to attend the deceased’s funeral which was strange especially that he told the court that he had a cordial relationship with the deceased. The appellant claimed that all the witnesses told lies against him. Surely, it is inconceivable that all the witnesses can tell lies except himself. We have perused the evidence and we are satisfied that the circumstances of this case point to the fact that the appellant is the one who attacked the deceased and caused him grievous harm which led to his death. We are alive to the fact that the learned Director is questioning the quality of the identification of the appellant having regard to the fact that PW1 was traumatised at the time of the incident. This is a case involving single witness identification and in the case of Fawaz and Chelelwa vs. The People2 it was held that: “(ii) In single witness identification, corroboration or J12 something more is required.” In this case, there was evidence that the clothes the appellant was last seen wearing when leaving the couple’s house a few days earlier were found in the same house. Not only were his clothes found in the house but also his slippers and a cigarette lighter. The appellant failed to give a reasonable explanation as to how these items including his clothes were found in the house of the deceased. In his Judgment, the learned Judge had this to say (See page 87 of the record of appeal): “Furthermore, if the Accused did not visit the Couple’s house, what would explain the presence of the clothes that he was seen wearing when he was leaving when he earlier visited the Couple at the house. I do not accept his explanation that he left the clothes in the house as PW3 lent him the clothes. If that was the case PW1 would have seen the clothes. Alternatively since he had gone to bid farewell to PW3, one would have expected him to give the clothes to PW3 instead of leaving them in the house. In the circumstances I have found that the Prosecution has proved that the Accused was the perpetrator of the unlawful act that caused the death of the deceased.” We cannot fault the learned trial Judge in his findings which were consistent with the evidence before him. In fact the Medical J13 Report exhibit P.6 shows that when the matter was reported to the Police, the report by PW1 was that she was “assaulted by a known person.” In our view, that ‘known person’ was no other than the appellant. We note that the learned Director alluded to the fact that Chisanga was not apprehended - be that as it may, this factor cannot assist the appellant who was properly convicted. We are satisfied after perusing the evidence that the lower Court was on firm ground in finding the appellant guilty on the two counts as there was overwhelming evidence pointing to the guilt of the appellant. We find no merit in the sole ground of appeal against conviction and we dismiss the appeal against conviction. Turning to sentence, we confirm the death sentence on the 1st count. However, turning to the 2nd count, we take the view that the sentence is on the low side having regard to the circumstances of the case. This was a brutal attack on PW1 and her family at night. The facts show that there was a baby who was severely injured in the attack. From the description of the J14 events of that night, it is clear that the appellant’s intention was to kill PW1 as well. We take the view that the sentence should reflect the gravity of the offence. We, therefore, set aside the sentence of 10 years imprisonment with hard labour and instead we impose a sentence of 20 years imprisonment with hard labour with effect from the date of arrest. RETIRED ……………….……….…………………….…….. F. N. M. MUMBA ACTING DEPUTY CHIEF JUSTICE …………………………….……….. E. N. C. MUYOVWE SUPREME COURT JUDGE JUDGE …………….…………….……………………. E. M. HAMAUNDU ACTING SUPREME COURT J15