Kelvin Kasiwa v People (ACZ/NO. 46/2016) [2017] ZMCA 504 (12 April 2017)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) ACZ/NO. 46/2016 BETWEEN: ..... _., _ .. KELVIN KASIWA .~:~✓'"---~~~i 1,~\l 1:PPELLANT / AND THE PEOPLE f" .,\ I \ 1 ~~~--·. -:. ·- •'.: ( · ... , ·• • I "'·,-. ...... '.' . . · RESPONDENT Coram: Makungu, Sichinga and Kondolo, J. J. A On the 1 ?thday January and 12th day of April, 2017 For the Appellant: Mr. K. Muzenga - Deputy Director, Legal Aid Counsel For the Respondent: Mr. M. P. Lungu - Senior State Advocate C. K. MAKUNGU, JA d elivered the Judgment of the Court. Cases referred to: 1. Emmanuel Phiri v. The People (1982) ZR 77 2 . Muvuma Kambanja Situna v. The People (1982) ZR 155. 3. Katebe v. The People (1975) ZR 13 4. flunga Kalaba and John Masefu v. The People (1981) ZR 102 at page 109 5. Inonge Anayawa and Lubinda Sinjambi v. The People SCZ Appeal No. 143/ 144 of 2011 6. Machipisha Kombe v. The People SCZ Judgement no. 27 of 2009 7. Ngati and others v. The People Judgment no. 14 of 2003 8. Rex v. August Mussa (1940 - 1945) Nyasaland Law Report P. 16 9. Nsofu v. The People (1973) ZR 7 This 1s an appeal against conviction only. The Subordinate Court convicted the appellant of defilement contrary to Section 138 (1) of the Penal Code as amended by Act No. 15 of 2005 of the Penal Code Chapter 87 of the laws of Zambia and referred the matter to the High Court for sentencing, which court sentenced him to 20 years imprisonment with hard labour. The two grounds of appeal are as fallows: 1. The learned trial Judge erred in law and 1n fact when he convicted the appellant in the absence of corroborative /vid~nce as to t6~ iclentity~of_th:-~ffender.~ ¥ • - ¥ • • : ~ - - _.· '-"'~ ~--5 ·. . - :~~..i;. ~ . ·-- - - ,:,;__.,_..i;. -;:--:-- . - ·· ·- -~,,lf; -,;:--5 . • :J>- ·. ~ :~~► -::~ : __ . - 2. The trial Judge erred in law and in fact when he rejected the alibi advanced by the appellant in the absence of evidence by the prosecution disproving the same to the required standard . In brief, the evidence in the court below was as fallows: On 28 th July, 2015 the prosecutrix L. M. who was 14 years old was walking home from school in Kafue using a short cut around 15:00 hours in broad day light. When she was about 15 minutes walk away from her house, she saw a man standing in her way about three meters in front of her. It was her first time to see him. He was -J2- wearing a short sleeved yellow shirt and blue trousers. That man asked her to pass. She refused and started walking backwards . They were only the two of them at the scene at the material time . Then he grabbed her, dragged her into the bush and had sexual intercourse with her. Thereafter, he asked if she would return and she agreed just so that he could let her go. Thereafter, he let her go and she went back home where she found her elder sister, C. M. and her mother M. H . She told her mother and sister that she had been defiled and that the culprit was wearing a 'l_ . yellow t-shirt and a b lue pair of trousers. At that time she was .>-· ·:.>.· . _j,I,._· ·z.>..· .;1,_· . io~hl'nZ~cirnffy .;.,itWa):tirty unifo~~ti: she-W~S; ~g~:~hg ~nifolrm-~ :: was produced in evidence. Acting upon that information, the sister and mother went out to look for a man wearing the said clothes. They saw somebody who was wearing a yellow t-shirt about a kilometer away from their house. That man run away and the prosecutrix's sister chased him but failed to catch him. It was unclear to them whether he was actually running away from them or just rushing somewhere . Later that day, the prosecutrix was taken to Kafue Estates Police where the matter was reported and Kafue District Hospital where -J3- she was examined. The two medical reports on the prosecutrix were produced in evidence. The medical reports showed that the findings of the medical practitioner upon examining the prosecutrix were consistent with the report of defilement. Two days later, on 31 st July, 2015 at 08 :00 hours the prosecutrix led her father and other family members to the crime scene. Before they got there, they saw a group of men standing along Mongu road. Amongst them , the prosecutrix identified the accused person as the one who had defiled her because she said she had a close look at his face on the material date . The accused and another in his group were both wearing black>t-shirts at the~me but the pr~secutrix pointc!el him out to hA ~ -~ ~ : father- a fter she had asked him to stop near that group. Her father ~ -~~-;~_::' __ - ~ ,:::=--~~ ~~ :-~- -- ~ ;;_~~ -~ -:-· -- - ~ .:;:=._~ -:;-~ :-.- ~ - then went and apprehended the accused whom he took to the police station. She identified the accused as her defiler even in court during trial. There was no identification parade. The prosecutrix had explained to the investigating police officer/ arresting officer that the defiler was of medium height and dark in complexion and according to the arresting officer, that description fitted the description of the accused person. -J4- In his defence , the accused had raised an alibi that on the material date at 08:30 hours he had escorted his sister from Kafue to Lusaka and returned to Kafue at 14:40 hours. Thereafter, he was at his sister's house until 16:00 hours b efore he went to his parents house. He confirmed that on 31 st July, 2015 he was apprehended on Mongu road b y the prosecutrix's father who was with the prosecutrix and other family members . According to the accused p erson , after he was apprehended , they passed through Garry Njovu 's house who allegedly witnessed the defilement. Garry Njovu told them that the appellant was not the one who defiled the pros~trix. On the hearing of the appeal, learned counsel for the appellant relied on his written heads of arguments filed herein on 8 th February, 2017. On the first ground of appeal, it has been argued that the trial court misdirected itself by not warning itself of the dangers of convicting on uncorroborated evidence. In his view the finding of clothes at the appellant's house matching the description given b y PWl or the boots matching the boot prints which PW6 saw at the crime scene , would have provided evidence of something more to rule out the -JS- •--~<~ ,,. . ~ . ~ possibility of false implication or indeed honest n1istaken identification. He also contended that if PW2 and PW3 had confirmed before court that the person they saw running had features fitting the appellant's features , this would have possibly provided a link. In support of this, he relied on the case of Emmanuel Phiri v. The People f1Jwhere it was held inter alia that: "In a sexual offence, there must be corroboration of both commission of the offence and the identity of the offender in order to eliminate the dangers of false implication. Failure by the court to warn itself is a misdirection." - :.. ;.;l.. .iA. ~ ,;=.:~ -~ ,-;.-=,,~ -~....-:_ :- :_ ·_ - .,,.. - it - was further-- argued that the danger of an honest mistaken ~ '~ ~ -~ __:-: _ ___ ~ ,-;.=.:~ -~ . ~ ,::i ~ ,~~ :_ - ~- ,~=-=~-~ identification cannot be ruled out in the present case because it is not clear for how long PWl observed her assailant. The opportunity for observation in the circumstances were not conclusive. To fortify this he relied on the case of Muvuma Kambanja Situna v. The People r21 where it was held that: "Evidence of a single identifying witness must be treated and evaluated with the greatest care to exclude the dangers of honest mistake; the witness should be subjected to searching questions and -J6- careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognise the accused. If the opportunity for a positive and reliable identification is poor, then it follows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render a mistaken identification too much of a coincidence." He said in this case, there is no corroboration of PWl's allegation that it was the appellant who had carnal knowledge of her. · -~ ·~ _,,.1 · - ·- ,;. Jt_ · ·>-· . ~ - ~-- . . ~-- ..... ~ - . ,~;,~ -~:,s .::.on -gr01Tfttl ·:Z4:~a-PB:ed c'6\1fi%e1 'fcr.r the ap13elianrarguectTuJ th--e alibi ,=•·'I)?~~ . . . -. .. :::-:. -- . ..... __ ...,.. ,.. ,.. . .- ,- ,- --. .. _>-· .... ~-- .. ~ . . raised by the appellant was not investigated by the police. The trial court rejected the alibi on the unjustified grounds that the appellant did not give sufficient details to PW6 as to who could support his a libi and also that he never brought it up during cross examination of PW6 the investigating officer. He said PW6 was cross examined as can be seen from page 18 of the record. He further argued that if someon e says he was at home , that is sufficient as all the officer needs to do is to go to his home and interview the people the accused person lives with and his neighbours in order to verify the -J7- alibi. He submitted furth er that since the alibi w a s not inves tigated a n d the a ppella n t h a d evidence of the alibi a nd the prosecution did not n egative it, it must b e upheld. To fortify this , h e r elied on the cas e of Katebe v . The People (3 J and Ilunga Kalaba and John Masefu v. The People. r4J In the Kate b e case it was held that: "Where a defence of an alibi is set up and there is some evidence of such an alibi, it is for the prosecution to negative it. There is no onus on the accused person to establish his alibi; the law as to the onus is precisely the same as in cases of self defence or provocation. _ It is ~ ·derelictio n of dut,y for an: ·i-tf-vestigattng offi.c~r ~ .;_:,.~ - ~..-.:. __ · not tr,- ~mttk:e a pr<J'jJer investigafton of an alleged ~ _:J:,_ ,► --~ : - ~ -~~ .. :"'i:.,(_ : :~~~ - ~ "5- . . . . - alibi." In the Ilunga Kalaba and another ca s e the Suprem e Court h eld that: "In any criminal case where an alibi is alleged, the onus is on the prosecution to disprove the alibi. The . prosecution take a serious risk if they do not adduce evidence from witnesses who can discount the alibi, unless the remainder of the evidence is itself sufficient to counteract it." -JS- He finally prayed that the appeal be upheld, the conviction and sentence be quashed and the appellant be set free. The state advocate submitted in writing as follows : On the first ground; the evidence on record shows that the prosecutrix had sufficient opportunity to make a reliable observation of the appellant. Therefore, the dangers of mistaken identity have been removed. She relied on Emmanuel Phiri v. The People f5J where it was held that: "A conviction may be upheld in a proper case notwtthstanding tl:iut no warninff-as to corrobol-ation ~ 1-iit~ -Geen-~ giv~,j:~ff?fh.ere -i~/J~i cii~'t~ -i~ 'i)f;~i~s~ something more which corroboration or that excludes the dangers referred to." In light of the foregoing, she submitted that the manner in which the appellant was identified and the time and circumstances surrounding the defilement provided compelling grounds on which to believe the evidence of the prosecutrix. To fortify this she relied on the case of Katebe v. The People f3J where it was held inter alia that: -J9 - "(ii) If there are "special and compelling grounds," it is competent to convict on the uncorroborated testimony of the prosecutrix. (iii) Where there can be no motive for the prosecutrix deliberately and dishonestly to make a false allegation against the accused, and the case is in practice no different from any others in which the conviction depends on the re liability of her evidence as to the identity of the culprit, this is a "special and compelling ground" which would justify a conviction on uncorroborated evidence." S~e therefore coutended t1:1at th~e was n? mot}>_e whatsoever J_w- the ,; ~1,~le:cutr~~ t~~''fa~l iy-imp{i2! -~ -:m~-:a ppei1~~t is~ irre -di~ ';1t ~t~n - - ~ -~~ know him prior to the fateful day. The ample opportunity that she had to observe the appellant and the manner in which she identified him, provided special and compelling grounds justifying a conviction based on her evidence of identification. On the second ground of appeal, the state advocate submitted that in cross examination PW6 stated that the appellant told him that he was at home and his home is near the area where the prosecutrix was defiled. -JlO- :::::~ ~~·~_,- However in his defence , he claimed that he went to Lusaka with his sister on that day and from there, they went to his parent's house. Although the appellant's sister supported his evidence , the appellant only involved his sister and details of going to Lusaka in his evidence adduced 1n court. She contended that it was an afterthought as none of the prosecution witnesses were cross examined on it. She relied on the Supreme Court case of Inonge Anayawa and Lubinda Sinjambi v. The People (6J where a question of alibi was dealt with and the court held among other t>J.ings that: "The defence should have been raised earlier in order to give the prosecution a chance to address it." She went further to submit that since an alibi was raised late in that case, the Supreme Court concluded that it was an afterthought. The question of dereliction of duty was therefore ruled out. In view of this case she urged us to also conclude that the police had no duty to investigate the alibi in this case. She finally prayed for the dismissal of the appeal. -Jl 1- Mr. Muzenga replied verbally that the prosecutrix did not have an ample opportunity to observe the defiler clearly because she went straight home after the ordeal and only described the culprit by the colours of his clothes. If she had time to observe him , she would have described his features like the shape of the nose and that he had a beard because he had a beard at that time. He said the identification evidence was very weak. Therefore without any supporting evidence, it was unsafe to convict. He said this case is different from the Inonge Anawaya case because the appellant herein told the police where he was on the material date unlike in --~e Anawaya-~as~. :~~ ~ . ~ ,;.~-~ -~ :~ In ~ addirt6n,_. the qppe111iit __ called~ ey:id/iic~_- to . ,~-.,~ --::~ . __ ; - ;;;.:=,,..-:;;. -~ ~ : . ,_;_~~ -~ . . - - . - - - prove his alibi. Having perused the whole record of appeal and having considered the written and oral submissions our views are as follows: The judgment of the Magistrate addresses the following questions; 1. Whether the prosecutrix had an opportunity to positively and reliably identify the one who defiled her. 2 . Whether the possibility of an honest mistaken identity could be eliminated. -J12- 3 . Whether there was some evidence supporting the prosecutrix's evidence. The Magistrate actually tested and evaluated the single witnesses 1 evidence with care to exclude the dangers of honest mistaken as required by law in Emmanuel Phiri and others v. The People r11 and the case of Machipisha Kombe v. The People, (61 Ngati and others v. The People (71 and Muvuma Kambanja Si tuna v. The People. (21 It is therefore incorrect to say that she did not warn herself of the >. . ~-. ,·. :~_. ~-. ·, :J,l_ . -~~ --~11g,~r9 -of:.fails-~impli_c;;ti&rn;-: ~lie_. Ma~ist Ntt~~ -~ on ~ fi¥'.m ~-o{i.ncL ~ =~~~ when she found that the evidence on record shows that the incident occurred between 14: 00 hours and 15:00 hours in broad daylight, which gave the prosecutrix the ability to clearly make out the features of the person who was defiling her and that the defiler was in close proximity to her. The prosecutrix was thus able to give PW6, the investigating officer in this matter a description of some features of the culprit that actually ,fitted the accused's features. The Magistrate also rightly found that the prosecutrix identified the accused among a group of ten men. Since that was done a short -J13- period after the incident complained of it was very unlikely that the prosecutrix would have identified the wrong person. The Magistrate indicated in her judgment that if the prosecutrix had not carefully observed the accused, she would not have been able to single him out from a group of ten men becaus he was not known to her or her family previously. She said she was satisfied that there could be no motive for the prosecutrix to deliberately and dishonestly make a false allegation against the accused. She therefore said she found it safe to rely on the evidence of the pros~_:J:trix implicati~ the accused_.>':1-=s the one wh_fl_-defiled _her o~_- -2 7'~ ¢'J~;:~-2 0-1 ~- ,~:.,¥1f.e-5-~ferem~n1Mn~ct·::fi-nc}i;gf;w~e ::in~ OU; 'iii~~: :~~-: based on the evidence on record and proper reasoning and therefore cannot be disturbed. It is clear to us that the learned Magistrate was satisfied that the dangers of mistaken identity had been removed and she in fact had warned herself of the need to eliminate dangers of false implication and the need for corroboration in sexual offences as per Nsofu v. The People f9J on page 2 of her judgment paragraph 4. In our considered view, it must have taken a reasonable period from the time the prosecutrix and the appellant met up to the time that they parted after having a conversation as to -J14- whether the prosecutrix would return . Therefore the Magistrate cannot be faulted for her findings . We accept the submissions of the state to the effect that the manner in which the prosecutrix identified the appellant, the time and circumstances surrounding the defilement are compelling grounds to believe the evidence of the prosecutrix. The case of Katebe v. The People (3 J applies. We have applied the principles enunciated in the Katebe case because there was no corroboration of the prosecutrix's evidence that it was the appellant who defiled her but speci¾_and compelli~ groun~s or ~mething mor~which s~tisfir.~- - thi ~~1-tha t-the '~1~\~e/ :erf fal;e •1Bfp~Cci~rorr h~d~~ 2-~~lud~l~;~cfr~ _ :· ~~- it was safe to rely on the evidence implicating the accused. On ground two we have no difficulty in accepting the Magistrate's findings and the state's submissions. The Magistrate rightly applied the case of Ilunga Kalaba and John Masefu v. The People (4J to the facts of this case . She was on firm ground when she found that during the investigations made by PW6 the accused told her that he was at home at the material time and did not give details of the witnesses who could vouch for him. He should have mentioned his sister (DW2) to the police to enable them investigate his purported -J15- alibi. The Magistrate was not convinced that the alibi was true. So in the same vein as the case of Inonge Anawaya and another v. The People, we find that the question of dereliction of duty is not an issue in this case. The finding of the Magistrate on the last page of the judgment that the alibi was a mere fabrication and an afterthought because it was not brought up at any point during the cross examination of PW6 was made on weak grounds because it is not the duty of the accused to prove his alleged alibi. The Magistrate applied the wrong test inste1- of the tests J~d dow~ in, }~~ Katebe cas_j_ -_f3 KaliihZ.5 ~Cl:Se- (4 ). <;_b"u-t'~eas:tu~d~We-w~i~-1:hat ~tlf~~;:;d~~ie- add~~eP-:~~- --- J and Ilung~ _ ~~ : by the accused in support of the alibi weighs much less as compared to the evidence of the prosecutrix regarding identification of the defiler. In fact the appellant did not give the police enough information to enable them investigate the alibi. -J16- .-;~~,~ ., Overall, the conviction was safe and sound and we hereby uphold it. The appeal is therefore dismissed. Dated this 12 th day of April, 2017. C. K. MAKUNGU COURT OF APPEAL JUDGE -:.-:, . . rCOU~T OF APPE&L J:p-DGE , r ,,,;"''ll? :;--"5- . ·-- -- .±<.::~ , ;,,.·- . . - - - ,,,,- - . - - ... - -~- - .- :~~~ • • ~ _:·t~OURT::QF="'2\PPEAL JUDOE~·:. M. M. KONDOLO, sc-i>--· )?. L~Y s1pHIN A_~~c -Jl 7-