Nyirenda v People (Appeal 29 of 1986) [1987] ZMSC 65 (29 July 1987)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 29 PF 1986 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: LASTONE NYIRENDA Appellant v THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner and Sakala JJ. S 29 July 19B7 For the Appellant : Mr. Mwanakatwe Asst. Legal Aid Counsel For the Respondent : Mr. N, Slvakumarsn Asat. Senior State Advocate JUDGMENT Sakala, J. S. delivered the judgment of the court. Cases referred to: (1) Nkumbula vs Regina (1961) R & N ( 2) Patrick Sakais vs The People (1980) ZR 205 The appellant was sentenced to death following upon his conviction for the offence of murder. The particulars of the offence alleged that on 14th April 19B5 at Katete he murdered Andrew Nall. The brief facts of the case were that on 14th April 19B5 Pld1, the appellant’s wife, left her child, the deceased eged about two years and ten months with the appellant when she went looking for okra. When she returned she did not find the appellant and she did not also find her child. She reported the matter to the police. Thereafter she also reported the matter to the village headman. At the village the UNIP officials organised party militants to search for the appellant. The appellant was apprehended sometime later □2 In Lundazl and brought back to Kateta. While at Katete according to the prosecution evidence, the appellant led the police and other proaecution witnesses to a stream where the dead body of the ohild was found floating in the stream. The body was recovered. According to the prosecution evidence it was subsequently identified as the body of the child left with the appellant on the 1<»th of April 1985. Ths prosecution produced in evidence a warn and caution statement recorded from the appellant after the oourt ruled in a trial within a trial that the statement wan free and voluntary and, therefore, admissible. The appellant did not give evidence in his defense, a course which in our law he was entitled to take. The learned trial judge after a very careful examination of evidence found that the appellant caused ths death of the deceased and convicted him accordingly The appellant filed two written grounds of appeal which Mr. Mwanakatwe, on his behalf, has asked the court to take into consideration in addition to the four grounds he has argued before us. Mr* Mwanakatwe has argued four rounds before us. These are that the learned trial judge misdirected himself in convicting the appellant in the absence of a specific finding as to the eause of death; that the learned trial judge erred in convicting the appellant an the oiroumetantlal evidence which was too weak to warrant the conviction; that there was no conolusive proof that the body recovered was that of the deceased; and the confession statement ought Rat to have been admitted. The submission on the first ground was that since there was no medical evidence as to the cause of death it was possible that the deceased could have met his death by natural causes. Counsel submitted that the evidence did not rule out that J3 possibility as the doctor who conducted th postmortem could not give any opinion aa to the oause of death on account of the body having been decomposed. When counsel wee referred to the feet that the learned trial judge relied on the case of Nkumbula vs Regina CD, that medical evidence ia not neoeesary to establish the cause of death* Counsel argued that the Nkumbula case should be distinguished from the facta of the present case. The argumenta and submission on the second ground were that the circumstantial evidence was so weak that it could not justify the conviction of the appellant as the child could have been killed by another person. Counsel submitted that the learned trial judge drew a wrong inference from the facta of the ease and the conclusion was unjustified. The arguments an the third ground wera that the deceased body having been recovered from a stream was not properly identified, particularly as the body was decomposed. The submission on the fourth ground was that the confession statement aught not to have been admitted as it was obtained under duress. It was argued that there was Evidence from the appellant that he was tortured by the arresting officer thereby inducing him to sign a warn and caution statement. Counsel further argued that even if the statement was properly admitted there was a basis upon which the trial judge should have exercised his discretion by excluding the statement. It was contended that the basis was that there was evidence that the appellant was beaten by fellow villagers when he wan apprehended. It was submitted that this suggested unfairness surrounding the recording of the statement. Reacting to the arguments and submissions on grounds one, two and three Mr. Sivakumaran □u appearing for the respondent submitted that this was a case where a child left in the care of his father was found missing as well as his father. He argued that the appellant was only apprehended after a search and when asked where the child was he led the police officers and ether independent witnesses to e stream where the child was found floating in the stream. Mr. Sivakumaran submitted that this was sufficient identification. He also submitted that in these circumstances there was no need for medical evidence as to the. cause of death particularly that the child wae identified by the father. He further submitted that the evidence on record was adequate regarding the death and identification of the child. He contended that even leaving the confession out there wee adequate circumstantial evidence. Turning to the ground relating to ths confession statement Mr. Sivakumaran submitted that the learned trial judge dealt with the Issue on the basis of credibility. He found the appellant inconsistent in hie evidence. Counsel submitted that the trial within a trial was properly conducted. kb have very carefully considered the submieaions by both learned counsel. Ue hove also examined the evidence on record. Gn the question of circumstantial evidence this court dealt with the issue in the case of Patrick Sekula vs The People (2). The brief facts of that case, as can be ascertained from the heeding, are that the appellant wae convicted of murder of a boy aged four years who was at the time travelling with his mother. The appellant proposed love to the child's mother. On her refusal the appellant assaulted her ac severely that she was rendered unconcioua for about □5 sight hours. On regaining oonciouanaas she found that her suitcase had disappeared and the child was dead* There was no dispute as to the appellant's identity nor was the assault challenged. The crucial issue wee whether the appellant sauced the child’s death* On appeal the appellant denied killing the child end argued that there wee ns direct evidence connecting him with the offence. The Supreme Court held that the circumstantial evidence was sc cogent and Compelling that on no rational hypothecs other than murder could the facts in the ease be accounted for. In our view the Sskolg case Is en all fours with the present case* There was in the present case sufficient circumsta­ ntial evidence connecting the appellant with ths offence. The appellant was left with the deceased, his step son* He disappeared and his atep son also disappeared. About ten days later he was apprehended in Lundazi. When he was brought back to Matete ho led the police to the stream where the body of his step eon was found floating and dead in the stream. In addition to thio evidence there Is his confession statement which was In our view properly admitted after a trial within a trial. T^tconfeselon statement is a complete admission af how he threw this child into the stream* Ue find no merit in this appeal. We, therefore, diamiaa It. M. S. Ngulube DEPUTY CHIEF JUSTICE B. T* Bardner SUPREME COURT JUDGE E. L. Sokals SUPREME COURT JUDGE