Martin Sinyinza v The People (Appeal 135 of 2017) [2018] ZMSC 337 (7 August 2018)

Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA/KABWE (Criminal Jurisdiction) APPEAL No. 135/2017 BETWEEN MARTIN SINYINZA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mu yovwe, Hamaundu, and Chinyama, JJS On 10th July, 20 18 and 7th August, 2018 FOR THE APPELLANT: Mrs. M. Marebesa-Mwenya, Legal Aid Counsel FOR THE STATE: Mrs. M. Chitundu, Deputy Chief State Advocate and Mrs. Angelica Kennedy Mwanza, Senior State Advocate JUDGMENT Hamaundu, JS delivered the judgment of the court. Cases referred to: Chisha v The People (1980) Z. R. 36 Emmanuel Phiri v The People (1982) Z. R. 77 Dorothy Mutale and Richard Phiri v The People ( 1997) Z. R. 227 1. 2. 3 . 4. Murono v The People (2004) Z. R. 207 5 . 6 . Machipi sa Kombe v The Pe ople (2009) Z. R. 232 Nsofu v The People (1973) Z. R. 287 J2 Kanyama v The People, Appeal No. 145 of 2011 7. 8. Wilson Masuso Zulu v Avondale Housing Project (1982) Z. R. 172 9 . Bernard Chisha v The People ( 1980) Z. R. 36 '. ' . '. The appellant appeals against his conviction by the Subordinate Court •.of the offence bf d efilement contrary to section 138(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The appeal is based on the solitary ground that the trial court erred in convicting the appellant in the absence of any evidence of circumstances that provided corrobor ation as to his identity as the perpetrator of the offence. The story that t he prosecution presented before the trial court through the testimony of witnesses was this: The victim, a girl aged nine years when th e incident occurred, was living with her grandmother in Isoka at the materia l time . This was in 2011. The a ppellant was an uncle to the victim, namely, being the younger b roth er of the victim's mother. Around the month of October, 201 1, the victim's grandm other discovered som e sores on the victim's private parts. The victim was taken to the District Hospital where medical examination revealed / / J3 that the victim had been defiled; and that the sores on her private parts related to sexually transmitted diseases. The victim, upon further examination, was found to be HIV positive. It is then that the victim revealed that the appellant had previously defiled her on a number of occasions. According to the prosecution's testimony, the appellant, who up to that time had been living with the victim and her grandmother, fled Isoka; and was at large until he was apprehended in Nakonde in April, 2013. The story presented by the appellant before the trial court, through his testimony, was in the form of an alibi. The story was this: That, indeed, he, at some time, had been living with his mother, (the victim's grandmother) in Isoka, but that this was in 2009 when he had fallen very ill; That, at that time, the victim was living with her mother in Nakonde. And, that, in 2011 , when the victim was living with the grandmother, he had already gone back to Nakonde. ... , ' . . ·J4 The trial court rejected the appellant's defence of alibi on the ground that h e did not raise it in time for the police officers to ' investiga te I ' it; and also on the ground that the prosecution's ' ' I I I '· •. evidence pointing to his idflntity was so overwhelming as to n egative that defence. The trial court accepted the prosecution's version of th~ story, namely ,that the appellant was living with the victim and her grandmother in Isoka at the time of the d efilem ent and th a t h e fled Isoka when the defilement was r evealed by the victim. The tria l court had 1:10 difficulty in finding tha t th~ victim was inq.eed below sixteen years, there being no dispute that s he was n ine years old at the time of the incident. The tr ial court also had no difficulty in finding that the victim h ad been defile d , as this fact was corroborated by m edical evidence. Coming to corroboration of the victim's allegation that it was the appella nt who had d efiled h er, the trial court r elied on the fact that, from the testimony that had accepted, the appellant had opportunity to commit the offence; and the fact that the appellant has run away from Isoka wh en the defilement was revealed . The trial court further found corroboration in the medical evidence which showed that the victim was found to be HIV positive and that appellant was HIV positive as 'f I . , , JS well. Finally the trial court found corroboration in the fact that, the appellant being related to the victim and the prosecution witnesses , ' I ' I ' I ' I there was no motive for the witnesses to falsely accuse the appellant. '· Thus, the trial court convicted the appellant of the offence. Upon committal to the High Court for sentence, the appellant was sentenced to 40 years imprisonment with hard labour. The appellant then appealed to this court. The app eal was argued entirely on written heads of argument. On behalf 'of the appellant, reliance was placed heavily on our judgment in the case of Chisha v The People 1 where we explained the r easons why the evidence of a child witness requires to be corroborated. Reliance was also placed on Emmanuel Phiri v The People 2 where we h eld that in a sexual offence there must be corroboration of both the commission of the offence and the identity of the offender: and, a lso , that where there can be no motive for a prosecutrix to deliberately and dishonestly make a false allegation against an accused, that is a special and compelling ground which would justify a conviction on uncorroborated evidence. It was then ,I • . , , J6 submitted that there was absolutely no evidence on record to show that the evidence of the victim in this case was corroborated with I • 1, I I f 1 , '· '· regard to the identification of the appellant as the offender. Learned counsel for the a p pellant submitted that the triai court fell in error when it concluded that it was the appellant who committed th~ offence on the ground t hat the appellant was HIV positive and the victim was infected with HIV at the time that the appellant and the victim were living in the same house. It was learned counsel's argument t.h at there was :µo evidence to .show that the victim had previously b een HIV n egative and that the only way in which the victim contracted HIV was th r ough sexual intercourse with the a ppellant. Counsel argued that there were many infe rences that could be made as to how the victim could have contracted HIV. Counsel suggested that the victim could have contracted HIV at birth or could h ave contracted it through other ways than sexual intercourse. Relying on the case of Dorothy Mutale a nd Richard . ' . Phiri v The People 3 , counsel ar gued that, faced with th ese multiple inferences, the trial cou rt should have adopted those which were more favourable to the appellant. Finally, counsel argued that the prosecution's failure to provide a nexus between t h e victim's HIV • • ' •. I . . •J7 status and the appellant created a doubt as to the appellant's guilt; which doubt was fatal to the prosecution's case. According to ' I I , ' I \ I •. . ' counsel, this m eant that the prosecution had failed to discharge its burden to ,providing that, the appellant , had defiled the victim. Citing the case of Murono v The People 4 where we held that the burden of proving, every element of the offence and , ultimately, ,the guilt of the accused lies from beginning to end on the prosecution, counsel urged us to uphold this appeal. In response, the State supported the conviction of the trial court. In doing so, the State concurred with what the trial court considered and accepted as constituting corroboration. Learned counsel for the State submitted that the prosecution witnesses had testified that the appellant himself, in his testimony, confirmed that he had been living with his mother , ther eby placing himself at the scene. Counsel then argued that this gave the appellant opportunity to commit the offence. We were ref erred · to the case of Nsofu v The People5 wher e we regarded opportunity as cap a ble of providing corroboration in an appropriate case . I , J8 Counsel also concurred with the trial court that the evidence that the victim and the appellant were both found to be HIV positive \I '• , , ' • t i was an odd coincidence that provided corroboration. Counsel submitted that that•odd coincidence amounted to ''something more" as we stated in the case of Machipisa Kombe v The People6 . Counsel su.bmitted that if, ,indeed, the victiim was born HJV positive, such information would have been availed; and that, in any case, the appellant did not raise the issue with either the victim's mother or g~andmother. Counsel went on to argue that there was no motive for the victim to deliberately make false allegations against the appellant. According to counsel, this was another special and compelling ground which provided corroboration, as was held in the case of Emmanuel Phiri v The People 2 . Finally the case of Kanyanga v The People7 was cited where we applied the grounds upon which an appellate court may interfere with the findings of fact made by the trial court which we had stated in the case of Wilson Masauso Zulu v Avondale Housing Project 8 . It was then submitted that the trial court had the opportunity of seein g and h earing the witnesses J9 and that, therefore, it was best placed to make the findings of fact upon which it came to only one conclusion; that the appellant ' I l, \ I t, t committed the offence of defilement. I With those arguments , we were urged to dismiss the appeal. , I l I In Bernard Chisha v The People1, wh ich has been cited extensively by the defence, the main issue that arose was wh eth er the sworn evidence of a child is to be treated like the sworn evidence of any other witness. The following is part of what we said in that case: "As it is necessary to heed the warning, corroboration of the sworn evidence of a child is, in practice, usually looked for. There need not now be a technical approach to corroboration: evidence of something more suffices. " In Machipisa Kombe v The People6 we stated that the provisio to s ection 122 of the Juveniles Act requires that there be corroboration of the evidence of a child before there can be a conviction. We then said the following: "Law is not static; it is developing. There need not now be a technical approach to corroboration. Evidence of "something more", which, though not consisting corroboration as a matter of strict law, yet (satisfies) the court that the danger of false implication has been excluded and that it is safe to rely on the evidence implicating the JlO accused (will suffice). Odd coincidences constitute evidence of "something more". They represent an additional piece of evidence which the coqrt is entitled tQ take into acco\lnt. They provide a " · I I I I support of the evidence of a suspect witness or an accomplice, or any other witness whose evidence requires corroboration. This is I the less technical approach as 'to what constitutes corroboration, Further, odd coincidences can, if unexplained, be supporting evidence. " I I I Having said the foregoing 1n that case, we proceeded to identify corroboration evidence in the form of four odd coincidences and upheld the conviction. The two cases that we h ave cited make it clear that the evidence of a child can be corroborated by evidence of "something more"; which may be even in the form of odd coin cidences. In this case the defence have only attacked the court for placing reliance on the medical examination which showed that both the victim · and appellant · wer e HIV positive. The appellanes argument on this issue is that the mere finding that the appellant was HIV positive and that the victim was also found to be HIV positive was not conclusive of the fact that it was the appellant who , Jll infected the victim with the HIV virus. In other words, the a ppellant's argument is that this piece of c orroborative evidence 'I t \ '. ought to h a ve been conclusive. We dealt with a similar argument in the case of Nsofu v,The People 5 • In th at case, this is what we saicl; Mr. Zamchiya submits that these three items of evidence all showed that the appellant had the opportunity ,to commit the offence. Miss • • Mwachande meets this argument by saying that although the appellant certainly had such opportunity the evidence was insufficient to establish that no one else e qually had such opportunity and therefore this evidence is insufficient to afford corroboration that it was the appellant who committed the offence. Miss Mwachan de 's argument seems to assume that unless the evidence which is relied upon as corroboration is sufficient in itself to prove the fact in issue it cannot be corroborated. This a pproach misconceives the character of corroborative evidence. If it were necessary for s uch evidence to be conclusive in itself then the question of corroboration would not arise; it would then be possible to convict without relying on the evidence of the prosecutrix. Corroboration must not be equaled with indepe ndent proof; it is not evidence which needs to be conclusive in itself. Corroboration is independent evidence which tends to confirm that the prosecutrix is telling the truth when she says that the offence was committed and that it was the accused who committed it. As Lord Diplock put it in D. P. P v Esther at page 1073g: What is looked for under the common law rule is confirmation from s ome other source that the suspect witness is telling the truth in 'J12 s ome part of his story which goes to show that the accused committed the offence with whic h he is charged. . . ' The matter is placed 'in proper perspec.tive if the wording of the . ' . ' cautionary rule is borne in mind, namely that it is dangerous to convict on the uncorro,borated evidence of a prosecutri.x in such cases. The necessity for corroboration does not alte r the fact that ' the evidence on which the conviction is based is that of the prosecutrix; the corroborative evidence serves (only) to satisfy the I I court that it is safe to rely on that of the prosecutrix" (word in bracke t add ed for clarity) . This passage was a bly summa rised by the editors of the law report in which that cas e is r eported in to three h oldings, two of which we s ubse quently a pplied in Machipisa Kombe v The People 6 • Going b y our explanation in Nsofu v The People5 , it can be said in this case that the conviction of the a p pellant was based on th e testimon y of the victim. The evidence of the HIV statu s of th e victim and th e ap pellant, th e evidence of opportu nity, the eviden ce of the a ppellant h aving fled Nakond e when the defilement was revealed a11.d the finding of lack of motive on the part of the prosecution witnesses to falsely implicate the appellant were pieces of eviden ce that m erely served to s atisfy the tria l court that it was . ' ' J13 safe to rely on the testimony of th e victim. Therefore, it was not necessary for those pieces of evidence to be conclusive in themselves. For the above reasons we find no merit in the arguments on behalf of the appellant; and since that was the only issue which was argued, there is no m erit in the appeal. We uphold the conviction and dismiss the appeal. E. C. Muyovwe SUPREME COURT JUDGE E . M. undu SUPREME COURT JUDGE J. C~~ SUPREME COURT JUDGE