Kelly Mwebe v The People (Appeal No.99/2022) [2023] ZMCA 278 (15 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA and NDOLA (Criminal Jurisdiction) Appeal No.99/2022 BETWEEN: KELLY MWEBE AND APPELLANT THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga JJA ON: 17th January 2023 and 15th November 2023 For the Appellant: MK Liswaniso, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: A Kennedy-Mwanza, Senior State Advocate, National Prosecution Authority J U D G M E N T Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. Zico Kashweka and Lawrence Muyunda Chimbinde v The People, SCZ Judgment No. 5 of 2007 2. Jeffrey Godfrey Munalula v. The People 1982 Z. R. 55 3. Credland v. Knowler 35 Cr App R. 48 4. Ives Mukonde v. The People SCZ Judgment No.11 of 5. Nsofu v. The People [1975[ Z. R. 287 6. Philip Munsala Mwanamubi v. The People, SCZ Judgment J2 No. 9 of 2013 7. Belemu v. The People [1973] Z. R. 41, 8. Muvuma Kambanja Situna v. The People [1982] Z. R. 9. David Zulu v. The People [1977] Z. R. 151 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Evidence Act, Chapter 43 of the Laws of Zambia INTRODUCTION [ll The appellant appeared before the Subordinate Court (Honourable D. Makalicha), charged with the offence of defilement contrary to Section 138 (1) of the Penal Code. [2] He denied the charge and the matter proceeded to trial. [3] At the end of the trial, he was convicted as charged, and committed to the High Court for sentencing. [4] In the High Court (Sunkutu, J.), sentenced him to 15 years imprisonment with hard labour. [SJ He has appealed against the conviction. CASE BEFORE THE TRIAL COURT J3 [61 On the evening of the 27th of May 2020, the prosecutrix and her siblings, escorted their mother to a funeral house where she was going to spend the night. [7J On their way back, they met the appellant and they proceeded home after greeting him. Just as they were about to get to their house, the prosecutrix informed her siblings that she was going back to the funeral house. She did not come back until just before midnight. [SJ When the prosecutrix's mother returned home the following morning, she was informed that the prosecutrix returned home very late the previous night. On being questioned by her mother, the prosecutrix denied that it was the case. [9] Two days later, on the 29th of May 2 02 0, following further questioning, the prosecutrix informed her mother that she delayed returning home because she had house. gone to the appellant's c101 The matter was reported to the police where the prosecutrix told the police officers that the appellant had sexual intercourse with her, the night she delayed J4 returning home. The prosecutrix was then taken to the hospital, where a doctor confirmed that she had recently had sexual intercourse. c111 In court, the prosecutrix' s siblings testified that on their way home, the prosecutrix branched off and went towards the appellant's house. She only got home just before midnight and told one of them that the appellant had sexual intercourse with her. c121 There was s father also evidence from the prosecutrix' that on three occasions, pastors from a church where the appellant ministered, contacted him proposing that they discuss the matter concerning the appellant. [13] In addition, an official from Airtel was called to give evidence in court. He produced phone records that showed that the appellant sent messages to the prosecutrix. One of them read "just stand with no and everything will be alright" [14] When the prosecutrix was called to the stand, she admitted going to the appellant's house that night, but said nothing happened. The public prosecutor then applied to have her declared a hostile witness. JS [lSJ The trial Magistrate granted the application, and declared the prosecutrix a hostile witness. He then allowed the prosecutor and the defence counsel, to cross examine her. [16J Further, during the trial, the prosecution sought to produce a confession statement which was made by the appellant. A trial within a trial was conducted following an objection. [17J Al though the objection to the production of the statements was sustained after a trial within a trial, the police witnesses were allowed to recount what the appellant told them during the recording of the statement. [lBJ In his defence, the appellant admitted meeting the prosecutrix that evening, but denied having sexual intercourse with her. FINDINGS BY THE TRIAL MAGISTRATE [19J The trial Magistrate found that the prosecutrix was below 16 years and was defiled. c201 He also found that the appellant was incriminated by the evidence from the prosecutrix' s sister that the prosecutrix told her that he had sexual intercourse J6 with her. This evidence was supported by evidence from the prosecutrix's siblings that they met the appellant on the way home. [21J The trial magistrate also found that the appellant had the opportunity to commit the offence because he was with the prosecutrix that evening. PROCEEDINGS IN THE HIGH COURT [22J Satisfied that the case against the appellant had been made out, and noting that he was a first offender and that there were no aggravating factors, the High Court Judge sentenced the appellant to 15 years imprisonment with hard labour. GROUNDS OF APPEAL [23J Two grounds of appeal have been advanced in support of this appeal. [24J The first ground of appeal is that having declared the prosecutrix a hostile witness, the trial Magistrate erred when he proceeded to consider her evidence when determining the appellant's culpability. r2s1 The second ground of appeal is that the trial Magistrate erred when he found that the period that the appellant spent with the prosecutrix that evening, was J7 corroborative because he had the opportunity to commit the offence. ARGUMENTS IN SUPPORT OF THE TWO GROUNDS OF APPEAL [26J In support of the 1 sL ground of appeal, the cases of Zico Kashweka and Lawrence Muyunda Chimbinde v. The People1 and Jeffrey Godfrey Munal ula v. The People2 , were referred to and it was submitted that the prosecutrix having been declared a hostile witness, the trial Magistrate should not have considered the incriminating evidence she gave against the appellant. [27J Coming to the 2nd ground of appeal, it was submitted that it lS not always that 'opportunity' lS corroborative. Counsel referred to the cases of Credland v. Knowler3 and Ives Mukonde v. The People4 and pointed out that since there was evidence that the appellant lived with two other men, the offence could have been committed by the other men. ARGUMENTS IN RESPONSE TO THE GROUNDS OF APPEAL r2s1 In response to two grounds of appeal, it was conceded that the evidence of the prosecutrix, who had been declared a hostile witness, should not have been JS considered by the trial Magistrate when he was deciding the case. [29J However, it was submitted that there was other evidence which corroborated the commission of the offence and identity of the offender. [30J The medical report corroborated the commission of the offence. [31J As regards the identity of the offender, the appellant's admission that the prosecutrix visited his house that evening, is evidence that he had the opportunity to commit the offence. The cases of Nsofu v The People5, Philip Munsala Mwanamubi v The People6 and Ives Mukonde v The Peopleti were referred to in support of the proposition that an opportunity to commit an offence, can be corroborative. COURT'S CONSIDERATION OF THE APPEAL AND DECISION [32J The two grounds of appeal are concerned with whether the prosecution evidence proved the charge against the appellant to the required standard. That being the case, we will deal with both grounds of appeal at the same time. J9 [33J But before we do so, it is appropriate that we say something on two procedural issues that arose during the trial. These are the declaration of the prosecutrix as a hostile witness and the receipt of incriminating evidence during the trial within a trial. [34J Mrs. Kennedy-Mwanza has rightly conceded that the prosecutrix having been declared a hostile witness, her evidence should not have been taken into account when considering the case against the appellant. [3SJ Of concern to us, is that having declared the prosecutrix a hostile witness, the trial Magistrate allowed both the prosecutor and the defence counsel to cross examine her. [36J In the celebrated case of Jeffrey Godfrey Munalula v. The People2 , the procedure for declaring a witness hostile, was set out. [37J The first stage, is the application by the prosecutor, to treat the witness as hostile. With that application, the prosecutor avails to the court the inconsistent statement, previously made by the witness. [3BJ The statement, should, prima facie, show that the witness's testimony in court is different from what the JlO witness told the police when the statement was being recorded. [391 If it does not, the prosecutor must continue examining the witness in chief, unless the prosecutor decides not to elicit any further evidence from the witness, in which case the witness becomes open to cross examination. [40J But where the court concludes that there is a basis for the application, because of there being a material difference between the witness's testimony in court, and the statement previously given to the police, the prosecutor is allowed to cross-examine the witness. The defence counsel is not allowed to cross-examine. [411 The cross-examination is for the purpose of obtaining an explanation for the difference between the testimony in court, and the statement to the police. [421 After that cross-examination, the court must then decide whether the witness has justified the difference, and where not, whether the difference is on account of the witness not intending the truth. Jll [43J If the court accepts the explanation for the difference, the witness can continue testifying in examination in chief. [44J But where the court concludes that the difference is on account of the witness's decision not to tell the truth, the court proceeds to declare the witness hostile. [45J Further, in the case of Jeffrey Godfrey Munalula v. The People2 , it was made clear that the court should not to place any reliance on the evidence that was given in court by a witness who was subsequently declared hostile. In other words, the court should proceed as if that witness never gave evidence in court. [46J In this case, the trial Magistrate should not have declared the prosecutrix a hostile before she had been cross-examined by the prosecutor. [471 Further, having declared the prosecutr ix a hostile witness, the trial Magistrate should not have allowed the prosecutor or defence counsel, to cross-examine her. This is because once a witness has been declared J12 hostile, no further evidence is received from such a witness. [48J The next issue we will deal with is the reception of incriminating evidence during the trial within a trial. [49J In the case of Belemu v. The People7 , the Court of Appeal, the forerunner of the current Supreme Court, held that where a confession is objected to on the ground that it was involuntary, a trial within a trial is held to determine whether the confession was voluntarily made. [50J Since the purpose of a trial within a trial is determine whether the confession was voluntarily made, the evidence of the prosecution witnesses is limited to the circumstances, or atmosphere that was prevailing, at the time the accused person made the confession. [51J The court should not allow prosecution witnesses to recount the actual contents of the confession statement during the trial within a trial. [52J Similarly, in the cross-examination of the accused person during the trial within a trial, he cannot be asked questions other than those relating to the J13 circumstances in which the confession statement was made. [53J It follows, that the trial Magistrate erred when he allowed the witnesses who recorded the statement from the appellant, to divulge the contents of the confession statement during 'the trial within a trial'. [54J Reverting to the appeal before us, we have already indicated that having declared the prosecutrix as a hostile witness, no reliance should have been placed on what she said in court. In ef feet, there was no evidence given by her. [55J Consequently, her siblings' evidence, the evidence of her mother and the police officers, of what the prosecutrix told them or said, was all rendered hearsay. , [56) In the case of Muvuma Kambanja Si tuna v. The People the Supreme Court had the following to say about hearsay evidence: "Hearsay evidence which does not fall within the exceptions to the rule and which does not come within s.4 of the Evidence Act, Cap.170, is inadmissible as evidence of the truth of that which is alleged" J14 [571 Section 4 of the Evidence Act, is concerned with the admissibility of certain trade, business or professional records in criminal proceedings. The evidence of the prosecution witnesses in this case, does not fall under any category of the evidence covered by the provision. [581 The trial Magistrate, should therefore not have placed any reliance on the evidence of any of these witnesses on what the prosecutrix told them. [59J That being the case, the admissible evidence that was before the trial Magistrate can be summarised as follows; on the 27th of May 2020, in the evening, as he prosecutrix and her siblings were returning from escorting their mother, they met the appellant who greeted them. They then proceeded home. Just as they were about to get home, the prosecutrix turned back saying she was going back to the funeral house. She returned just before midnight. Two days later, the prosecutrix was taken to the hospital and on being examined by a doctor, it was discovered that she had a tear on the hymen and bruises on the posterior fourchette, that were healing. On about three JlS occasions, pastors from the church where the appellant ministered, contacted the prosecutrix's father proposing that they the discuss the matter concerning appellant and his daughter. Finally, there was evidence that the appellant sent messages to the prosecutrix urging her to deny and everything was going to be ok. [601 With the prosecutrix's testimony having been excluded and no person having seen the appellant commit the offence, the case against the appellant was anchored on circumstantial evidence. [61] The question of corroboration which ordinarily arises when a victim of sexual abuse testifies, and the principles espoused in the cases Nsofu v The People5 , Philip Munsala Mwanamubi v. The People6 , Ives Mukonde v. The People 4, which relate to the same issue, are of little or no significance to this case. [621 In the case of David Zulu v. The People , it was held that it is competent for a conviction to be premised on circumstantial evidence, where a trial court is satisfied that "the circumstantial evidence has taken the case out of the realm of conjecture so that it .. Jl6 attains such a degree of cogency which can permit only an inference of guilt". [63J It is our view that the evidence that was before the trial court fell far short of evidence on which a trial court could have drawn a conclusion that the case against the appellant had been made out and that the only inference that could be drawn on it is that on the 27r.h of May appellant defiled the prosecutrix 2020. [64J The evidence against the appellant is that he met the prosecutrix on the material night and two days later a medical examination showed that she had been defiled two to three days earlier. (651 The fact that the defilement happened earlier or after she met the appellant, cannot be ruled out. (661 We note that pastors from the appellant's church, attempted to meet the prosecutrix father and that there was an sms from the appellant to the prosecutrix, urging her to maintain a "no". (671 On the evidence on record and in the absence of the testimony of the prosecutrix, one can only speculate what the meeting or sms, was about. [6BJ In the circumstances, we are of the view that the set in the case of David Zulu v. The People9 threshold and other cases on convictions based on circumstantial evidence, was not met. Jl7 [691 We find that the appellant's conviction is unsatisfactory. VERDICT [701 We find merit in the appeal and we allow it. [711 We set aside the conviction and quash the sentence. C. F. R. Mchen DEPUTY JUDGE PRESIDENT ···········�·················· COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE ........... ...................... . � �;��ga