Maunga & Others v People (SCZ Appeal 311 of 2013) [2015] ZMSC 62 (22 July 2015)

SCZ Appeal Nos. 311,312, 313/2013 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: EMMANUELMAUNGA ANDREWGONDWE AMOS TALUBINGA AND THE PEOPLE 1ST APPELLANT 2ND APPELLANT 3RD APPELLANT RESPONDENT Coram: Phiri, Wanki, JJS and Lisimba, AgjJS On the 7th day of May, 2013 and on 22nd July, 2015 For the 1st and 3rd Appellant: For the 2nd Appellant: For the Respondent: Mr. A. Ngulube, Director Legal Aid Board of Mrs. B. Kerns, of Messrs KBF and Partners Mrs. M. P. Lungu, Advocate State Phiri, JS, delivered the Judgment of the Court JUDGMENT Cases referred to: 1. Kenious Sialuzi vs. The People (2006) Z. R. 81 The Appellants were jointly tried by the High Court and convicted of one Count of the offence of Aggravated Robbery contrary to Sections 294(2) of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence were that the Appellants, on the 11thJune, 2010 at Monze, in the Monze District of the Southern Province of the Republic of Zambia jointly and whilst acting together and while being armed with offensive weapons, namely; knives, screwdrivers and a Pistol did steal K38,500,000 and a bunch of keys, the property of Justin Mwiinga and at or immediately before or immediately after such robbery did threaten to use actual violence to the said Justin Mwiinga in order to obtain or prevent or overcome resistance to the property being stolen. The three Appellants were each given the mandatory death sentence. The evidence before the trial Court was glVen by seven (7) prosecution witnesses. PW1 was Justin Mwiinga the owner of the house which was robbed during the night on the 11th of June, 2010. This witness was at his home with his family when at around 19.00 hours he saw a man's face peeping into the house J2 • .' through the window. He recognized the face as that of his tenant, Andrew Gondwe, the second Appellant. Ten minutes later, PWl saw another man armed with a Pistol enter the house. A second man armed with a screwdriver also entered the house. A third man who was wearing a mask on his face also entered the house. The robbers searched PWl's pockets from , which they stole K3,500,OOO(unrebased). The man with a Pistol pointed it to his head and ordered him to take the robbers to his bedroom where the gunman demanded for more money. PWl insisted that he only had the money which was taken from him. One of the assailants counted that money and confirmed the amount. PW1 was ordered to lie down on the floor and he was pushed under the bed. According to PW1, he lost a total of K38,500,OOO,(unrebased) in cash and some other items which included keys to the kitchen door. At the end of the robbery, PWl was locked up in the bedroom together with PW2 and PW3 who were forced to join him. The robbers then locked the house and went with the keys. After the J3 I • ., After about four to five months, PWl was called to the Police Station to attend a Police identification parade. He identified the third Appellant as the man who was carrying the Pistol during the robbery. During trial, PWl also identified the first Appellant as the man he and PW3 apprehended during the night of the robbery as they returned from the police Station. PW1 further identified the second Appellant who had peeped into the house through the window. The second Appellant was his tenant. When cross- examined, PWl stated that he did not see the second Appellant among the five assailants who entered the house, but insisted that one of the assailants was wearing a face mask. PW2 was Rachel Mwiinga, PW1's wife. Their testimony was similar. She was assaulted during the robbery. The assailants specifically demanded for her storeroom keys. They believed that the money was kept in the storeroom. The masked robber broke down the • storeroom door and took out a briefcase containing money. PW2 was then pulled into the bedroom where PWl was, and she was equally pushed under their bed. J5 PW2 further narrated how they broke themselves free from the bedroom and unlocked the kitchen door using the spare key provided by PW4. PWI and PW3 went to report the robbery to the Police Station and a short while later; her husband came back with the first Appellant. She further stated that she identified the third Appellant as the robber who came into the house armed with a Pistol. She confirmed that there was a good lighting system at the house and the robbery took about ten minutes, during which time she identified the third Appellant. When cross-examined, PW2 stated that she never saw the second Appellant during the robbery. PW3 was Thomas Mwiinga PWl's nephew who lived together with PW1 and PW2 in the same house. According to this witness, the second Appellant, who happened to be their neighbor, earlier came to inquire from him when PW1 would be going away to Lusaka. The second Appellant made a similar inquiry on Monday and Wednesday preceding the robbery which occurred on Friday night. When the second Appellant made a similar inquiry on Wednesday, PW3 informed him that PWI would be leaving for Lusaka on Friday. During the night of the robbery, the second Appellant went to PW3's J6 • • home to inquire about PWl's trip to Lusaka. Ten minutes after the second Appellant left PW1's home, the robbers struck. During the robbery, PW3 was in the house with PW1, PW2 and PW4. The rest of PW3's evidence was similar to that of PWl and PW2. According to PW3, he was equally beaten by the robbers during the attack. He also testified that they were all dragged into the bedroom and pushed under the bed before the robbers locked the house and fled the scene. They freed themselves by breaking the bedroom door. PW3 accompanied PWl to the Police Station during the same night and took part in apprehending the first Appellant on their way back from the Police Station. PW3 identified the first and second Appellants in the Courtroom. PW3 was questioned by the Police and briefly detained for purposes of investigation . PW4 was Elizabeth Mwiinga, a juvenile witness whose testimony was received after a voire dire examination. She testified that she was III the company of PW1, PW2 and PW3 when the robbers struck. She was doing her school homework. When she heard the robbers, she immediately escaped into the bedroom where she J7 • remained hidden. She heard the sounds of the victims being beaten and being pressed for money. She was called out of her hiding by PW2 and she remained in the house when everybody else went to search for the assailants during the same night. Five minutes later, the second Appellant brought a bunch of keys which he claimed he picked from the roadside. The bunch of keys belonged to the victim's house. This witness identified the second Appellant in Court and the keys which were exhibited. PW5 was No. 8292, Inspector Vincent Chibesa, a Forensic Ballistics Expert based at Zambia Police Headquarters. Briefly, his evidence in the trial Court was that he examined the exhibited Pistol and nine bullet cartridges. His Forensic analysis was that the Pistol was in good working order, and marched with the cartridges which were all of 9 millimeter caliber. His report was exhibited as part of the prosecution's evidence together with the Pistol and the cartridges. PW6 No. 8556 Detective/Inspector Richard Mweenda conducted a Police Identification Parade at which PWI and PW2 identified the third Appellant; twice, among ten male persons who constituted the J8 Parade. According to PW6, the third Appellant had been allowed to change both his positions and clothes twice, for each of the two identifying witnesses. PW7 received the report of the robbery from PWI during the same night. He visited the scene of crime at PWl's house and while there, PWI and PW3 returned to their home bringing with them the first Appellant who they had apprehended with assistance of members of the public. PW7 searched the first Appellant's pockets and recovered five bullets of 9 millimeter caliber which were concealed in an audio tape cover which was in his leather jacket. The leather jacket and the bullets were exhibited during trial. PW7 further testified in the trial Court that the first Appellant led him to the second Appellant who happened to be the complainant's tenant. Four months later, the third Appellant, who was being sought by the Police, was apprehended in Lusaka and found with the exhibited Pistol and four rounds of ammunition. The five rounds of ammunition recovered from the first Appellant and the four rounds of ammunition recovered from the third Appellant were J9 examined by PW5, the Forensic Ballistic expert and were all produced as part of the prosecution's evidence. In their defence, the first Appellant gave evidence on oath and called no witnesses. He told the trial Court that he was apprehended around 20.00 hours on his way to Monze Market from Monze Site and Service Location. He told the trial Court that he saw a motor vehicle that stopped suddenly and he was pursued by two people. He ran because he was scared and that, he was apprehended by members of the public and the two people who pursued him. He denied any knowledge of the offence in this case and he also denied any knowledge about the exhibited leather jacket in which five bullets were found by the Police. He stated that the jacket was not his. The second Appellant elected to remam silent and called no witnesses. The third Appellant gave evidence on oath and called no witnesses. In his evidence, he narrated how he was apprehended by the Police in Kitwe. He denied any knowledge about the offence in this case. no He also denied that any gun and bullets were recovered from him. He alleged that he was identified by PW1 and PW2 because he had seen them at the Police Station. He further alleged that his torn T- Shirt contributed to his identification. He alleged that all the evidence against him were lies. When cross-examined, he conceded that he was not the only one dressed in a torn T-Shirt on the Police Identification Parade. The learned trial Judge evaluated all the evidence on record and considered the written submissions filed into Court. The defence alleged that the prosecution's case had fundamental inconsistencies. The Court found that the inconsistencies referred to by the learned defence Counsel were trivial and inconsequential as they did not go to the substance of the evidence before the Court. With regard to the first Appellant, the Court believed the evidence of PWI and PW2 and found that he was properly identified because he was captured by these witnesses a short while after the robbery. The Court found that there was sufficient light in the house during the robbery and that the first Appellant's features were properly J11 mastered. The Court also found that PW7 connected the first Appellant to the robbery because of the five bullets which were recovered from his leather jacket. These five bullets marched with the caliber of the Pistol recovered by the Police from the third Appellant. The trial Court concluded that this evidence could not be a mere coincidence but odd coincidence supporting the charge. As already indicated, the second Appellant opted to remain silent. However, the trial Court proceeded to examine the evidence on record against him. The Court accepted the evidence that before the robbery occurred, the second Appellant kept inquiring from PW3 when PWl would undertake his trip to Lusaka for business. The Court also accepted PW3's evidence that the second Appellant was seen peeping into PW1's house moments before the robbers struck. Further, the Court believed the evidence of PW7 who stated that the second Appellant was found to have been m constant communication with one of the suspects in the robbery who was later sought by Police but was not found. The Court further J12 • accepted PW4's evidence that he received PWl's house keys from the second Appellant soon after the robbery when she remained alone at the scene of crime after the rest of the members of the household proceeded to report the robbery to the Police. The Court applied the principle stated by this Court in the case of Kenious Sialuzi vs. The People/I) and held that the second Appellant's silence in the face of strong evidence against him strengthened the inference that he was guilty. Based on this finding, the Court concluded that the second Appellant was an accessory to the offence. With regard to the third Appellant, the Court believed the evidence of PWI and PW2 who implicated the third Appellant. The Court found as a fact that PWI and PW2 spent about ten minutes with the third Appellant under a good and sufficient lighting system which gave them ample opportunity to observe. The Court found that PWI and PW2 described the third Appellant's physical features sufficiently. J13 • In addition, the Court found as a fact that the third Appellant was found with the gun and the bullets used in the robbery and that these exhibits marched with the bullets recovered from the first Appellant who was apprehended during the night of the robbery, within the area between the Police Station and the crime scene as PW1 and PW3 returned to their house from the Police Station. The Court also found that evidence of identification by PW1 and PW2 was flawed; nevertheless the trial Court found that this evidence had been strengthened by the recovery of the Pistol and ammunition on the third Appellant four months after the robbery. On the basis of the foregoing findings, the learned trial Judge found each of the Appellants guilty and convicted them as charged. There is an unusual situation regarding this appeal. This is that on the 30th of November, 2012, after the three Appellants' names were cause listed for hearing of their case on the 4th of December, 2012, Miss Inutu Sub a of Messrs Kuta Chambers filed a Notice into the Principal Registry under Appeal No. 256/2011, but bearing the three Appellants' names as "1st Accused, 2nd Accused and 3rd J14 • Accused", respectively. The relevant portion of the Notice read as follows: "TAKENOTICETHATTHE l"t Accused's advocate herein will at the hearing of the appeal solely rely on its submissions made before the High Court and are at pages 59 to 70 of the record". Messrs Kuta Chambers purportedly signed as "Advocates for the Accused persons". The Cause Number referred to in the Notice filed by Messrs Kuta Chambers has nothing to do with this appeal and the contents of the Notice are manifestly erroneous and misleading. Such inattentive and deceptive conduct by senior Counsel must be frowned upon; and we so do. Three grounds of appeal were filed on behalf of the Appellants. These were: "1. That the learned High Court Judge erred in law and in fact when he convicted the second Appellant when the evidence before him was clear that the Appellant did not actually participate in the commission of the offence as he was not among the five persons that entered to rob the house. 2. That the learned Judge erred in law and in fact when he convicted the second Appellant merely on the fact that he was purportedly mentioned by the first Appellant and that he had asked PW3 on when PWl was going to Lusaka. Further that the MTNactivity J15 • there was showed that communication report between the 2nd Appellant and one of the assailants by the name of Shanduka when in fact the first Appellant himself in his defence denied knowing that suspect. 3. Further, the learned Judge the when he circumstantial evidence." convicted erred in law and in fact on Appellants merely In respect of the first Appellant, it was argued that there was no witness who positively identified him and linked him to the robbery. He was not seen at the scene of crime and PW1 as well as PW3 could not single him out in their evidence. Learned Counsel also alleged that PWI and PW3 saw the first Appellant along the road and stopped to ask him a question about the brown leather jacket he was wearing. PWI and PW3 flashed their car lights at the first Appellant's face causing him to run as he felt frightened. Learned Counsel suggested that the first Appellant suspected PWI and PW3 to be thieves who could attack him. According to Mr. Ngulube, this explains why PW2 failed to identify the first Appellant. Mr. Ngulube also suggested that the evidence given by PW7 to the effect that the first Appellant led him to his accomplices was not convincing. J16 Regarding the second Appellant, it was argued that he did not participate in the commission of the crime; and that the only evidence that was offered to the Court was that he was implicated by the first Appellant. The learned Director submitted that the mere fact that the second Appellant brought the keys to PW4 was not sufficient to implicate him in the commission of the crime. It was further submitted that the alleged communication between the second Appellant and a wanted suspect was never known to the Court and therefore, remained speculative. The learned Director submitted that the learned trial Judge convicted the second Appellant on the basis of circumstantial evidence which had not been taken out of the realm of conjecture; and therefore, the inference of guilty was wrongly drawn. Regarding the third Appellant, it was argued that PWI and PW2 who identified him at the Police Identification Parade, conceded that they were very frightened during the robbery; that the third Appellant was a total stranger to PWI and PW2 and mistaken identity was possible; and that the Parade was unfairly conducted J17 because the third Appellant was seen by PWI and PW2 before the Identification Parade was conducted. In response to the Appellants' grounds of appeal, Ms Lungu supported the conviction and the sentence. Regarding the first Appellant, she submitted that he was apprehended by the complainants and found with incriminating evidence; and he led the Police to the second Appellant's house. Ms Lungu further submitted that odd coincidences, if unexplained, can amount to supporting evidence, and that an unreasonable explanation is no explanation at all. For these reasons, we were also invited, in the face of the second Appellant's silence, to consider the second Appellant as having enabled or aided his co- accused to commit the offence, and that he was squarely captured under Section 21(11 (hI of the Penal Code, Chapter 87 of the Laws. In addition, it was argued that the possession of the complainant's keys by the second Appellant was highly suspicious because it was inconceivable that he picked up a bunch of two keys on the road, in J18 the night; and correctly concluded that they belonged to the complainant. According to Ms Lungu, this evidence supported the prosecution's case. We have considered the grounds of appeal, the arguments and the submissions made before us. We have also considered the Judgment of the trial Court. We have taken note that the circumstances in which each of the Appellants were arrested were different, notwithstanding that they were alleged to have committed the same offence. For this reason, we propose to consider the arguments and the evidence against each Appellant separately. The gist of the argument in support of the first Appellant's appeal was that he was convicted on insufficient circumstantial evidence. We have examined the evidence on record and we note that the first Appellant's evidence and that of PWI and PW3, the complainants, was in concert with regard to how the first Appellant was apprehended between the scene of crime and the Police Station where PWI and PW3 went to report the robbery during the same night. PWI and PW3 apprehended the first Appellant after Jl9 . . identifying him earlier at the scene of crime during the robbery. They saw him after flashing their car's lights at him. The first Appellant was found with five bullets of a 9 millimeter caliber concealed in an audio tape cover which was in his leather jacket. The bullets, the audio tape cover and the leather jacket were exhibited as evidence without objection. Most importantly, the first Appellant was apprehended by the complainants within an hour of the robbery and all the prosecution witnesses who were at the scene of crime categorically stated that the scene was well lit with electricity lights. On his part, the first Appellant denied that he was found with the exhibited leather jacket and the five concealed bullets. In other words, the first Appellant alleged that the Police fabricated the evidence against him. We have carefully examined the record of appeal and we have not seen any evidence suggesting that the Police could have fabricated the evidence against the first Appellant. When the first Appellant was apprehended, PW1 and PW3 who apprehended him were not in the company of any Police Officers. They were returning from the Police Station where they went to report the robbery. All these J20 • • events occurred within an hour or so after the robbery. The Police came into contact with the first Appellant when they visited the crime scene during the same night. According to the evidence of PW7, he arrived at the scene before PW1 and PW3 returned to their house from the Police Station. As it turned out, PWl and PW3 returned with the first Appellant who they handed over to the Police. When PW7 searched him at the scene of crime, he discovered the five bullets concealed in his leather jacket. We agree with Ms Lungu that odd coincidences, if unexplained, can amount to supporting evidence. The discovery, on the first Appellant, of the 9mm marching caliber bullets so soon after the robbery was dearly an odd coincidence that tended to substantially implicate him. We therefore find that the learned trial Judge was on firm ground when he convicted the first Appellant on the basis of strong and compelling circumstantial evidence which was supported by odd coincidences and direct incriminating evidence in form of the 9 millimeter bullet cartridges concealed in an audio tape cover found in the first Appellant's leather jacket. This evidence J21 . '. clearly corroborates the evidence of identification given by PWl and PW2. With regard to the second Appellant, the prosecution's story is that he was the victim's tenant who had come to the victim's home earlier on to inquire about when PWl would leave for Lusaka on his business trip. The evidence was that in addition to his curious inquiries, the second Appellant was seen peeping into the victim's house moments before the robbers struck. He was also seen at the victim's house about ten minutes after the robbery when he returned the victims' bunch of two keys, which the robbers had earlier stolen after using those keys to lock up their victims in the house. The significance of the keys is that this was at night in an area which had no street lights and we wonder how anyone else would find keys along a dirty gravel road which he could not have known about; and proceed to identify them with a specific house during the night the victims' house was attacked and robbed. While we hold that the second Appellant was perfectly entitled to remain silent in the face of the serious allegations against him, we J22 r'"w wish to reaffirm what we stated in the case of Kenious Sialuzi vs. The People/i) where we stated as follows: "There is no obligation on an accused person to give evidence, but where an accused person does not give evidence, to possible explanation for the event in question. The Court's duty is to draw the proper inferences it has before it". the Court will not from the evidence speculate as In the present case, the second Appellant did not offer any explanation regarding his conduct at the victims' house and how he was able to recover the victims' stolen keys and return them to the victims' house through PW4 during the night of the robbery. He chose to remain silent. The second Appellant's visit to the scene of crime within ten minutes of the occurrence of a very violent robbery does, in our view, not only bring the second Appellant to the scene of crime in an incriminating way, but goes further to provide strong and compelling circumstantial evidence against him. This evidence which was supported by his possession of the victims' bunch of two keys which the robbers had stolen a short while earlier, was corroborating evidence. We have found no fault in the manner the learned trial Judge treated the evidence against the second Appellant. We agree with the learned trial Judge's finding that the J23 , '- strong and compelling evidence had its weight enhanced by the second Appellant's silence in the face of the serious allegations. As regards the third Appellant, the evidence before the Court was that he was identified by PWI and PW2 at the Police Identification Parade. At each of the identifying sessions, the third Appellant was allowed to, twice, change his position and clothes; but was still identified by the two identifying witnesses. Further evidence against the third Appellant was that he was found in possession of the exhibited Pistol with four rounds of ammunition; which items were marched with the ammunition found on the 1st Appellant. The third Appellant's argument is that his identification at the Police Identification Parade was weak because he had earlier on been seen by PW1 and PW2 at the Police Station. Curiously, the leaned trial Judge found that the third Appellant's identification had lapses; but proceeded to find that those lapses were cured by the rest of the evidence implicating him to the robbery. We do not agree that the third Appellant was seen by PWI and PW2 at the Police Station before the Police J24 ~ J' ••• Identification Parade was conducted. We say so because had the third Appellant been seen by PWI and PW2 at the Police Station earlier than the Parade, he would not have opted to change his clothes, twice; and his positions, twice during the process of the Identification Parade. We have examined the process through which the third Appellant was subjected at the Police Identification Parade and we hold the view that his identification by PWI and PW2 was cogent and devoid of any lapses. As correctly observed by the learned trial Judge, evidence of the Police Identification Parade by PWI and PW2 was not the only evidence implicating the third Appellant. The third Appellant was also implicated by the Police evidence to the effect that the exhibited Pistol and four of the nine exhibited cartridges were found on him when he was arrested in Lusaka, four months after the robbery in Monze. The Forensic Ballistic Expert's evidence is that the bullets marched with the five earlier recovered from the first Appellant during the night of the robbery and that, all the nine exhibited bullets were of the same caliber as the exhibited Pistol found on the J25 third Appellant. The learned trial Judge, in our VIew, correctly analyzed this evidence and concluded that the third Appellant participated in committing the crime. The trial Court's findings of fact against each of the three Appellants were amply supported by the evidence on record. They are not perverse and we cannot fault the trial Court's conclusion. We dismiss this appeal and uphold both the conviction and sentence. . (110.\ ~LG. S':Phiri SUPREME COURT JUDGE .(/~ . E. kanki SUPREME COURT JUDGE (RETIRED) M. Lisimba A/G SUPREME COURT JUDGE J26