Lyford Phiri v The People (Appeal No 135/2022) [2023] ZMCA 324 (20 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No 135/2022 BETWEEN: LYFORD PHIRI AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA On 26th April 2023, and 20th November 2023 For the Appellant: For the Respondent: Mr. H. M. Mweemba, Director Legal Aid Board Mr. M. Libakeni, Senior State Advocate/ National Prosecution Authority JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. Machipisha Kombe v. The People (2009) ZR 184 2. Emmanuel Phiri v. The People {1982) Z. R. 77 Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia. 1.0. INTRODUCTION. 1.1. The Appellant was sentenced to 50 years by Makubalo, J following a conviction of having Canal knowledge of a person against the order of nature in the Subordinate Court of the First Class. J2 1.2. The particulars of the offence alleged that on 3rd March 2021 at Katete District in Eastern Province of the Republic of Zambia, the appellant had carnal knowledge of Tobias Chanda through the anus, an act which is against the order of nature. 2.0. PROSECUTION EVIDENCE BEFORE THE TRIAL COURT 2.1. The appellant's conviction was secured by the evidence of three prosecution witnesses. The evidence implicating the appellant was profiled by PWl, who was the victim. His evidence was that on 3rd March 2021, he was sent by his mother (PW2) to go and collect K160.00 from the appellant so that she could buy a school jersey for him. 2.2. Prior to this, the appellant had informed PW2 that he had met PWl and that he had some money for Ino's mother to buy maize. The K160.00 was enough for two 50kg bags of Maize which PW2 would supply. Around 19:00 hours, PWl went to the appellant with a lot of hesitation because of his experience the last time he visited the appellant. He narrated that on a date he could not remember but in the month of October 2020, the appellant invited him to his house and when he got there around 18 hours, he invited him to his bedroom as his wife and children were away. 2.3. He told the trial court that as they laid down to sleep, the appellant started undressing him. When he finished undressing him, the appellant also undressed himself and penetrated into his anus and started having sex with him. He narrated that he had no strength to stop him and that after the J3 appellant finished the act, he proceeded to stroke PWl's penis until he ejaculated. After that, the appellant went on to pull his testicles very hard to the extent that he felt a lot of pain. 2.4. Later that night, he went back home and slept. The appellant ordered him not to tell anyone what had happened as he would die if he told anyone and he gave him a 10 Kwacha. The following day, he told his friend Gastone Banda (PW3) what had happened. 2.5. He narrated further that on the day PW2 sent him when he reached the appellant's house, the appellant pulled him to his bedroom and had sex with him through his anus. He told the trial court that after he finished, the appellant again pulled his testicles hard and felt an excruciating pain in his testicles and back. Thereafter, the appellant gave him K160.00 to take to his mother. 2.6. The following morning he went to school and when he came back, he took a nap. When he woke up, the mother inquired why he had slept and he responded that he was not feeling well. He further explained that his testicles, his anus and his back were paining 2. 7. He was taken to the hospital but there was no improvement. On further inquiry by PW2, he told her that he dreamt that the appellant had sexual intercourse with him through his anus. PW2 quickly took him to a witch doctor. When PW3 visited PW1 and inquired what was going on and upon being informed about the dream, he disclosed that it was true that PW1 J4 informed him some 5 months prior, in October 2020, that the appellant had sex with PWl through the anus. This account was admitted by PWl and in his evidence, PWl narrated how the appellant had sex with him in October 2020, which facts were similar to the current offence. 2.8. PW4 was the police officer who arrested and charged the appellant with the subject offence. He produced the medical report in court. 2.9. This marked the end of the prosecution case. The appellant was found with a case to answer and he was put on his defence. 3.0. DEFENCE. 3.1. In his defence, the appellant opted to give unsworn evidence and called no witnesses. He denied having had carnal knowledge of PWl against the order of nature. He seemed to suggest that PWl came to get the money on 15th February 2021 together with others. 3.2. This marked the end of the defence case. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. After careful consideration of the evidence before him, the learned trial Magistrate believed and accepted the evidence of PWl and found that the appellant had carnal knowledge of PWl against the order of nature and convicted him for the subject offence. The appellant was later sentenced to 50 years imprisonment with hard labour by the High Court. 5.0. GROUNDS OF APPEAL JS 5.1. Disconsolate with the conviction and sentence, the appellant launched the present appeal fronting two grounds structured as follows: (1) The learned trial court erred in law and in fact when it convicted the appellant in the absence of corroborative evidence regarding both the identity of the offender and the commission of the offence. (2) The learned trial court went into grave error by sentencing the appellant to 50 years imprisonment with hard labour when on record, there was nothing disclosing serious aggravating circumstances. 6.0. THE APPELLANT'S ARGUMENTS 6.1. In support of the appeal, learned Counsel contended that the offence which the appellant was charged with requires that there must be corroboration both of the identity of the offender as well as the commission of the offence. It was submitted that the evidence of PW1 was not corroborated as to the identity of the offender as required by the law. 6.2. According to learned counsel, the evidence of PW3 whose effect was to make amends to the corroboration as to the identity of the offender cannot reasonably be said to corroborate as his narrations relate to the occurrence of issues that allegedly happened in October 2020 and no indictment was raised or charged against the appellant pertaining to this. JG 6.3. Regarding corroboration as to the commission of the offence, there was no expert evidence from a medical person to attest to what could have been the cause of the purported lacerations on the anus of PWl. It was counsel's view that in a case as this one, it is critical for the evidence of a qualified medical practitioner to be brought to corroborate the commission of the offence. 6.4. In summation, we were urged to allow this appeal as the circumstances of the case and the evidence on the record do not satisfy the requirement in sexual offences, there must be corroboration of both the identity of the offender and the commission of the offence. 6.5. In support of ground two of the appeal which was argued in the alternative, we were asked to exercise our discretion and reduce the sentence, if in our view, the sentence is one that comes to us with a sense of shock among other factors. It was contended that a sentence of 50 years with hard labour should invoke a sense of shock as the appellant is a first offender. 6.6. Learned counsel held the view that this case should attract a minimum mandatory sentence of 15 years imprisonment with hard labour. In summation, counsel urged us to allow the appeal, set aside the sentence and substitute it with the minimum mandatory sentence of 15 years. 7.0. RESPONDENT'S ARGUMENT 7.1. On behalf of the respondent, the learned Counsel contended that the trial court rightfully found the evidence of PW1, PW2 and PW3 credible. It was J7 contended that there was sufficient evidence to corroborate the allegations against the appellant. In support of this, we were referred to the case of Machipisha Kombe v. The People1 where it was held that: "Corroboration must not be equated with independent proof. It is not evidence which needs to be conclusive in itself. Corroboration is independent evidence which tends to confirm that the witness is telling the truth when he or she says that the offence was committed and that it was the accused who committed it. Law is not static; it is developing. There need not now be a technical approach to corroboration. Evidence of something more, which though not constituting corroboration as a matter of strict law, satisfies the Court that the danger of false implication has been excluded, and it is safe to rely on the evidence implicating the accused." 7.2. According to the learned state advocate, the trial court was right, when it found that the contents of the medical report corroborated the commission of the offence. The medical report provides as follows: "the victim had an oral fungal infection, and healed lesions on the anal orifice that were extending into the anorectal canal and the anal orifice. The doctor concluded that the circumstances were consistent with the allegation because of the presence of healed anorectal lesions". J8 7.3. With regard to the corroboration of the identity of the offender, it was submitted that the victim's evidence was sufficiently corroborated and warranted the finding of guilt imposed on him by the trial court. According to counsel, PW2 sent PWl to the appellant and it was only after he returned from the appellant that he started getting sick. 7.4. We were urged to dismiss the appeal as it lacks merit. 7.5. In responding to ground two of the appeal, it was the learned counsel's contention that the trial court was on firm ground when it sentenced the appellant to 50 years imprisonment with hard labour as there were aggravating factors. According to learned counsel, the sentence is not wrong in principle and sodomy is a vice that should be curbed by imposing harsh sentences on convicts so as to deter the would-be offenders. 7.6. In conclusion, we were urged to dismiss this appeal. 8.0. HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1. At the hearing of the appeal, the learned Director of the Legal Aid Board, Mr. Mweemba placed full reliance on the documents filed. On behalf of the state, Mr. Libakeni informed the court that the state would equally rely on the heads of argument filed before the court. 9.0. CONSIDERATION AND DECISION OF THE COURT 9.1. We have considered the evidence on record, the respective arguments of learned Counsel and the impugned Judgment. The issue for determination is whether there was corroboration to warrant a conviction. 9.2 The general rule in sexual offences is that there must be corroboration of J9 both the commission of the offence and the identity of the offender in order to eliminate the twin dangers of false complaint and false implication. The law relating to corroboration was summed up in the case of Emmanuel Phiri v. The People2 , as follows: 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 complaint and false implication. Failure by the court to warn itself is a misdirection. 9.3 On the commission of the offence, the medical report produced by the prosecution confirmed that the victim had an oral fungal infection, and healed lesions on the anal orifice that were extending into the anorectal canal and the anal orifice. The doctor concluded that the circumstances were consistent with the allegation because of the presence of healed anorectal lesions. This report was produced in court by the arresting office and the prosecution did not bother to call the doctor who conducted the medical examination to explain what may have caused the healed lesions. We are alive to the fact that a medical report prepared by a medical officer can be tendered into evidence even without calling the medical Doctor. We however hold the view that certain circumstances, such as in casu, require the JlO Doctor's oral evidence in order to explain the medical findings to aid the trial court to make well informed findings. 9.4. In the circumstances, we hold the view the medical report did not provide corroboration as to the commission of the offence. We find force in Mr. Mweemba's argument in this regard. 9.5 . As to the identity of the offender, we note that the trial court did not even address its mind to this requirement, neither did it even warn itself. This was a serious error. We agree with the learned Director of Legal Aid Board that the only evidence which could have corroborated the identity of the appellant was that of PW3 which unfortunately spoke to an alleged earlier incident which was never reported to the police and no indictment was raised against the appellant. 9.6. Given the foregoing, we are convinced that had the trial court properly directed its mind to the requirements set out in the Emmanuel Phiri case supra, it would no doubt have reached a conclusion as ours. It is our considered view therefore that the prosecution did not prove its case beyond reasonable doubt for want of corroboration. We therefore find merit in ground one of the appeal. 9.7. Having found merit in ground one, and ground two being an alternative argument, we find it unnecessary to consider it. ' .. 10.0 CONCLUSION Jll 10.1 All in all, we find merit in the appeal and we allow it. The conviction and sentence is set aside. We acquit the appellant and set him at liberty forthwith. DEP P. C. M. NGULUBE COURT OF APPEAL JUDGE ·······~ ············ K. MUZENGA COURT OF APPEAL JUDGE