Kinglos Kangaza v The People (Appeal No. 97 of 1970) [1971] ZMCA 7 (18 May 1971)

KINGLOS KANGAZA v THE PEOPLE (1971) ZR 90 (CA) COURT OF APPEAL PICKETT JP, MAGNUS AND GARDNER JJA 18th MAY 1971 I (Appeal 5 No. 97 of 1970) Flynote Criminal law and procedure - Aggravated robbery - Co - accused acquitted or discharged - Amendment alleging "with other persons unknown". Criminal law and procedure - Appeal - Appellant could have been found guilty of some other offence - Meaning of "some other offence" - When 10 court will substitute judgment. Headnote The appellant was charged with aggravated robbery with two other named persons. Only the appellant was convicted. He appealed on the ground that as the information charged the appellant jointly with named co - accused who were acquitted he was entitled to an acquittal as the 15 information did not charge him with committing the offence with other persons unknown, it being an essential ingredient of the offence that the appellant was acting together with one or more persons. Held: ■ ■ (i) On an information charging him jointly with his co - accused 20 with aggravated robbery, on the acquittal of his co - accused the Court of Appeal can amend the information to allege that the appellant acted jointly with persons unknown provided he was not prejudiced by the amendment. ■ (ii) The offence of aggravated robbery together with named 25 co - accused persons is different from the offence of aggravated robbery together with persons unknown and is "some other offence" within the meaning of s. 15 (2) of the Court of Appeal for Zambia Ordinance. ■ I Cases cited: 30 (1) R v Plummer [1900 - 1903] All ER 613. (2) Chitambala & Ors v R (1961) R & N 166; (3) Dharmasena v The King [1951] AC 1. (4) R v Sudbury 91 ER 502. I Legislation referred to: 35 Court of Appeal for Zambia Ordinance (No. 52 of 1964), (Cap. 12), s.15 (2). Criminal Procedure Code, 1965 (Cap. 7), s. 245 (2), (3). Judgment Gardner JA: delivered the Judgment of the court: Kinglos Kangaza was charged together with Patrick Mwanza, Moses Chilembwe and Joseph Zulu before the High Court at Lusaka with the offence of 40 aggravated robbery. The particulars of the offence were that Kinglos Kangaza and Patrick Mwanza, Moses Chilembwe and Joseph Zulu on the 28th day of January, 1970, at Lusaka, whilst acting together did steal from Norah Ngulube articles of clothing, together valued at K15.45, the property of Norah Ngulube, and at or immediately before or immediately ■ 1971 ZR p91 GARDNER JA after the time of such robbery did use personal violence to the said Norah Ngulube. Moses Chilembwe the third accused in the trial did not appear for his arraignment and there is a note on the record that he had absconded. On application by the State Advocate the court allowed the charge against 5 the third accused to be withdrawn and he was formally discharged. The principal evidence against the remaining three accused was that of prosecution witness No. 1, Norah Ngulube who said that at 9 p.m. on the 28th January, 1970, in Maripodi Compound she left a friend's house in order to return to her home and on the I ■ ■ way she met four boys, 10 whom she recognised as males. They beat her and removed all her clothes and ran away. The complainant, who was naked, went to the house of a woman nearby where she was given something to wear and the following morning she went to the Emmasdale Police Station and reported to the police. While at the police station she saw a handkerchief belonging to her 15 when it was taken from a man who was being searched by the police. She identified the handkerchief as having been taken from her on the previous night and she identified the person in the police station with the handkerchief as being the first accused. She then went with the police and the first accused to a house in Mandevu Compound where the first accused stayed and there she found the articles which had been taken from her the previous evening and which were the subject of the information against the accused. She said that there were other men in the house but she did not know any of them. Police witnesses gave evidence that when the first accused 25 now the appellant, was questioned about the handkerchief, he said he picked it up when his friends were beating a certain woman and whilst he was standing by. When formally charged the appellant said, "I deny the charge of taking away her property but we wanted to beat her. The one who took her property is Patrick Mwanza. When he took away her 30 property we were ■ not there." At the close of the prosecution case the learned trial judge found that the fourth accused had no case to answer and he was therefore acquitted. The first and second accused gave evidence in their own defence, denying that they had anything to do with the robbery and saying that 35 they were involved with the police in connection with an entirely different offence. In his judgment the learned trial judge found that there was insufficient evidence to convict the second accused and he was acquitted. With regard to the appellant, however, the learned trial judge found "as I have found supra there is undoubted evidence against first accused. 40 I would go further and hold that PW1 said she was attacked by four men who removed her clothing and I have held that first accused was one of them. I I therefore find first accused guilty of the charge and convict him accordingly." 45 ■ ■ ■ 1971 ZR p92 I I ■ GARDNER JA By this finding the learned trial judge in effect convicted the appellant of having together with the co - accused persons named in the information (whom he had already acquitted or discharged) robbed the complainant and used violence while so doing. Mr 5 Daly on behalf of the appellant abandoned the grounds of appeal filed by the appellant personally and relied solely on one additional ground filed with the leave of the court. This additional ground of appeal is to the effect that as the information charged the appellant jointly with named co - defendants and as the other co - defendants were acquitted at 10 the trial and the information did not charge the appellant with committing the offence whilst acting together with other persons unknown, the appellant was entitled to an acquittal, it being an essential ingredient of the offence that the appellant was acting together with one or more other persons. The 15 learned trial judge found that the appellant had made statements to the police to the effect that he was present at the scene when the complainant was beaten and robbed and although the appellant said that he took no part in the robbery, he did in one of his statements say, "we intended to beat her". The learned judge was satisfied on the evidence 20 that the appellant had taken part in the beating and the robbery and he disbelieved his subsequent evidence in court that he, the appellant, had merely taken the police to his house where the stolen articles were found because the police wished to see the house in connection with another offence. There is no reason to interfere with this finding of the learned 25 trial judge and the only question for consideration is whether the appellant was correctly convicted of aggravated robbery having regard to the fact that his co - defendants named in the information were acquitted or as in the case of one co - defendant was discharged. The law relating to this situation in the case of conspiracy is quiet [sic] 30 clearly laid down in R v Plummer (1), which case was followed by the Federal Supreme Court in the case of Chitambala and Others v R (2). In that case at p. 172 Claydon, ACJ, refers to ■ ■ ■ ■ the previously cited law and to the case of Dharmasena v The King (3) in which Lord Porter said "it is well established law that if two persons are accused of conspiracy and 35 one is acquitted, the other must also escape condemnation. Two at least are required to commit the crime of conspiracy, one alone cannot do so." Claydon, ACJ, went on to say, "that this is so even where the acquittal has come about by reason of shortage of evidence appears in the case of Hillman 23 Criminal Appeal Reports, 53." In the case of R v Plummer, 40 Bruce, J, pointed out at p. 616 that unless the indictment alleges conspiracy with persons unknown acquittal of other persons named in the indictment as conspirators necessarily results in the acquittal of the one left even if he has pleaded guilty. This statement by Bruce, J, follows Chitty on Criminal Law (2nd Ed.) and although Bruce, J, said this was 45 fully supported by the authorities it does not appear that until that time there was any authority that it was necessary to allege a conspiracy with certain persons unknown in order to secure a conviction where co - defendants were acquitted. In the case of Hillman and in the case of Chitambala ■ ■ 1971 ZR p93 I ■ GARDNER JA it was found that there had been no communication between the appellants and either a convicted co - conspirator or a person named in the indictment as having joined in the conspiracy and not acquitted thereof. This finding is clear because conspiracy depends upon communication between two persons. The offence of aggravated robbery, whilst only capable of being 5 committed by more than one person (or by one person who is armed) is not necessarily dependent upon there being communication between the parties. If two persons without any prior communication between them contemporaneously beat and rob another person that would constitute the offence of I aggravated robbery. This equally applies in the case of riot. 10 In R v Plummer, Wright, J, referred to the case of R v Sudbury cited in 91 ER, 502 in which it was held that when only two out of three were found guilty of riot (it being necessary for more than two persons to join together in order to constitute the offence of riot) and there was no allegation of "cum aliis" they were entitled to acquittal on appeal. 15 The report in the case of R v Sudbury does not however indicate whether on the facts there were other unknown persons who took part in the riot who could have been referred to in the charge by the words "cum aliis". The interpretation of the law that "other persons unknown" must be referred to in the charge seems to be based on the Sudbury case and 20 the extract from Chitty on Criminal Law referred to by Bruce, J, in the Plummer case. In the case at present before the court the learned trial judge found as a fact that the appellant acting together with three other persons unknown beat and robbed the complainant but as Mr Daly has quite 25 rightly pointed out the information alleges only ■ that the appellant acted with three other named persons who were not convicted of the charge. Mr Daly submits that the charge should have been amended to allege that the appellant committed the offence with persons unknown. It would appear to be impractical to have charged each of the joint accused in the 30 alternative with acting together with persons unknown because the very essence of the charge against the four accused was that they were known people who had acted together. At the beginning of the trial when the State Advocate formally withdrew the charge against the third accused, he did in fact at the same 35 time ask to amend the particulars of the charge as to the number of handkerchiefs alleged to have been stolen. At this stage it would have been possible for him to apply to amend the charge to delete the name of the third accused and allege that the other three accused acted together and with a person unknown. As a result any one of the accused could have 40 been convicted if it were found that one of them acted with one other person for that is all that is necessary to constitute the offence of aggravated robbery. This course was not taken by the State Advocate nor was it taken by the learned trial judge and this court has to consider whether it is possible or proper to substitute a conviction on that charge. The 45 powers of this court are contained in the Court of Appeal for Zambia Ordinance, s. 15 (2) which reads as follows: ■ ■ ■ ■ I 1971 ZR p94 GARDNER JA "Where an appellant has been convicted of an offence and the trial court could on the information, or charge, have found him guilty of some other offence, and on the findings of the trial court it appears to the Court that the trial court must have been 5 satisfied on the facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the judgment of the trial court a judgment of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that 10 other offence, not being a sentence of greater severity." Section 245 (2) of the Criminal Procedure Code provides that: ■ I "Where before a trial upon information or at any stage of such trial it appears to the court that the information ■ ■ ■ is defective, the court shall make such order for the amendment of the information 15 as the court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice. All such amendments shall be made upon such terms as to the court shall seem just." Section 245 (3) provides for a note of such amendment to be endorsed 20 on the information. The learned trial judge did not take this course although he could have done so in his judgment provided he was satisfied that there was no prejudice to the appellant. The court has to consider whether under s. 15 (2) there is power to 25 remedy this omission. This depends on the meaning of "some other offence" in the section. This phrase could refer to some other offence not referred to in the information at all or it could be held to refer to the same offence substantiated by other particulars. At first sight the section clearly refers to a different offence but this need not necessarily be an 30 offence under a different law or different section of the Penal Code. The offence of aggravated robbery together with named co - accused persons is different from the offence of aggravated robbery together with persons unknown. In our view the latter offence is "some other offence" within the meaning of the section. It follows therefore that this court 35 may substitute a judgment of guilty in the latter form. As such a substitution would have the same effect as an amendment of the information by the trial court under s. 245 (2) of the Criminal Procedure Code it is essential that this court should have regard to the proviso contained in that section namely, "unless having regard to the merits of the case the 40 amendments cannot be made without injustice". At his trial the appellant was properly informed of the nature of the charge against him - that of aggravated robbery. He was further properly given particulars of the time and place, and the complainant and the articles of clothing alleged to have been stolen. The 45 particulars of his accomplices were incorrect that they were specified by name instead of being referred to vaguely as "persons unknown". ■ ■ ■ I 1971 ZR p95 GARDNER JA The appellant in this case was not prejudiced by the failure to refer to persons unknown in the indictment. His defence was that he was not at the scene of the crime and the identity of the other persons taking part in the robbery was immaterial to that defence. In any event, whatever his defence, it could not in this case depend upon the identity of the other assailants. We are quite satisfied that the appellant would not have been prejudiced if the information had been amended and we are equally satisfied that he would not be I prejudiced by this court's substitution of a judgment to the same effect. 10 We therefore dismiss the appeal against conviction and substitute a judgment of guilty of the offence of aggravated robbery whilst acting together with persons unknown. The sentence of fifteen years' imprisonment with hard labour is a statutory sentence. I The appeal against sentence is dismissed. 15 Appeal dismissed