Mvula v People (Appeal 75 of 2015) [2016] ZMSC 30 (3 March 2016)

, IN THE SUPREME COURT OF ZAMBIA HOLDENAT LUSAKA (CRIMINAL JURISDICTION) APPEAL NO. 75/15 BETWEEN: MBULAJOE MVULA AND THE PEOPLE APPELLANT RESPONDENT Coram : Wanki, Hamaundu, and Wood, JJS on the 14th July, 2015 and the 3rd March, 2016 For the appellant: For respondent : Mr R. Mukuka, Legal Aid Counsel Mrs M. M. Kawimbe, Deputy Chief State Advocate JUDGMENT HAMAUNDU,JS, delivered the Judgment of the Court Cases referred to: 1. Katebe V The People [1975] ZR 13 2. Kambarage Kaunda V The People [1990/1992] ZR 215 3. Mwabona V The People[1973] ZR. 28, 4. Misupi V The People[1978] ZR 271 5. Chimbo & Ors V The People [1982] ZR 6. Machipisa Kombe V The People [2009] ZR 282. 7. DPP V Kilbourne[1973] 1 All ER 440 8. Yudah Nchepeshi V The People[1978] ZR 362 When we heard this appeal we sat with Mr Justice Muyinda Wanki. Mr Justice Wanki has since retired. Therefore, this judgment is by majority. J 2 This is an appeal against a judgment of the subordinate court of the lsI class at Kitwe by which the appellant was convicted of the offence of defilement of a girl under the age of sixteen years. The appeal is against both conviction and the sentence of thirty-five years imprisonment with hard labour that was imposed by the High Court at Kitwe. The prosecutions' case before the trial court was a follows: Lillian Kabwe, who was PWI during trial was the mother of the victim, PW4, who was a girl aged 6 years. PWI had an aunt named Juliet, DW2, who was married to the appellant. PWI also had a daughter named Faidess Musonda, PW4, a girl aged 9 years at the time of the incident. On the 23rd August, 2010, PWI sent her two daughters, PW2 and PW4, to her aunt Juliet's house to fetch a pot. There, the two girls found the appellant. As they were looking for the pot, the appellant tried to grab PW2. The young girl evaded him. However, he managed to grab the younger of the two girls, PW4, whom he proceeded to defile until he was disturbed by the arrival of his wife, Juliet, DW2. PW2 went back to her mother's house where upon being asked by PWI where her young sister was, PW2 replied that her young sister was on her way. Shortly thereafter, DW2, came to PWl's house and asked J 3 where PW4 was. DW2 went on to tell PWI that what she had found at her home had shocked her. Then she left. PW2 went to look for her young sister and brought her to their mother. Upon being asked as to what she had done at DW2's house, PW4 replied that the appellant had defiled her. PW1, then, passed on the report to her own mother, PW3, who went to the appellant's house to confront him. She found the door to the appellant's house locked from the inside. No one responded to her persistent knocks. PWI and the victim's father reported the matter to the police. The victim was taken to the hospital where medical examination confirmed the defilement. The appellant was apprehended the following day at a tavern by a member of the local neighbourhood watch committee in the company of the victim's father. In his defence, the appellant told the trial court that on the material day he was away from home and only came back from the tavern at 23:00 hours. He explained the accusation as being the result of some differences that he had had in the past with the victim's mother, PWl. He was supported by his wife, DW2, who told the court that on the material day her husband came back from the tavern around 23:00 hours. J4 The trial court found as a fact that: (i) The victim was below the age of 16 years and; (ii) She was defiled With regard to the identity of the defiler, the trial court observed that the evidence of the children during trial had been very clear and had remained unshaken, even under cross-examination. On that account, the court expressed satisfaction that the children did not fabricate the story. The court rejected the appellant's testimony that he had had differences with the victim's mother as being an afterthought. The court found that no motive had been disclosed for the victim to falsely accuse the appellant of having defiled her. The court took this to constitute a special and compelling ground to justify conviction even on uncorroborated testimony. For that approach, the trial court relied on the case of Katebe V The People!l) where we held; "(ii) If there are special and compelling grounds it is competent to convict on the uncorroborated testimony of a prosecutrix. (iii) Where there can be no motive for a prosecutrix deliberately and dishonestly to make a false allegation against an accused, and the case is in practice no different from any others in which the conviction depends on the reliability of her evidence as to the J 5 identity of the culprit, this is a special and compelling ground which would justify a conviction on uncorroborated testimony" The court then found that the prosecution had proved that it was the appellant who had defiled PW4. The appellant was convicted. Upon committal to the High Court for sentence, he was ordered to undergo 35 years imprisonment with hard labour. The appellant appeals on only one ground, namely; that the trial court erred in law and fact when it convicted him on the evidence of witnesses with a possible interest to serve. The appellant and the State filed written heads of argument which their respective counsel relied on at the hearing. The appellant's argument was that it is trite law til our jurisdiction that when relatives and friends of the victim or complainant in an offence are called to testify as prosecution witnesses, the court ought to treat them as suspect witnesses. For that proposition we were referred to the case of KambarageKaunda V The People(2 ) where one of our holdings was: "(vi) Prosecution witnesses who are friends or relatives of the prosecutrix may have a possible interest of their own to serve and should be treated as suspect witnesses. The court should therefore warn itself against J 6 the danger of false implication of the accused and go further to ensure that that danger has been excluded" Counsel went on to point out that the witnesses, PWI to PW4, who testified as to the identity of the appellant as the offender, were relatives of the victim and their evidence ought to have been treated with suspicion by the trial court. It was argued that the failure by the trial court to treat their evidence as such and the failure by the trial court to ensure that the danger of false implication was excluded before convicting the appellant was a misdirection. In response, it was acknowledged on behalf of the respondent that the evidence of a witness with a purpose of his own to serve should be treated with caution and suspicion as was held by the Court of Appeal, this court's predecessor, in the case of Mwabona V The Peoplel31• However, counsel for the respondent argued that the trial court had no reason to make a special finding on the status of the witnesses complained of. To drive the point home, the respondent advanced several related arguments: It was the respondent's argument that although PWl, PW2 and PW3 were related to the victim, PW4, the appellant was equally related to them through marriage. The respondent J 7 argued that, in those circumstances, the witnesses could not be accused of bias against the appellant because they would have had bias in his favour as well had they found PW4 to have lied. The respondent referred us to our decision in the case of Misupi V The People(4) where we held as follows; "The tendency to use the expression 'witness with an interest (or purpose) of his own to serve' carries with it the danger of losing sight of the real issue. The critical consideration is not whether the witness does infact have an interest or purpose of his own to serve, but whether he is a witness who, because of the category into which he falls or because of the particular circumstances of the case, may have a motive to give false evidence". On that authority, it was argued on behalf of the respondent that the witnesses complained of in this case did not have reason to give false evidence and that, infact, they fell into the category of trustworthy, credible and reliable witnesses. In those circumstances, it was argued, there was no need for the trial court to warn itself of the danger of false implication. The respondent went on to argue that our decision m the Kambarage Kaunda case was not meant to be of general J 8 application, but that each case had to be determined on its own facts. The respondent anchored that argument on a passage in the case of Chimbo & Ors V The People(5 ) where we said; "It is the duty of a trial judge, if the circumstances so dictate, to make a finding regarding the status of any particular witness, and while different witnesses can be suspect for different reasons, it obviously does not follow that a witness must be regarded as suspect merely because she happens to be the wife of the victim". The respondent then argued that; where circumstances leave no doubt to the court as to the identity of the accused; where there is opportunity for the accused to commit the crime, and; where there is corroboration from independent sources, then there would be no impropriety on the court for not making a special inquiry as to whether witnesses have a possible bias. Finally the respondent argued that the witnesses' evidence was corroborated by that of PW5 and PW6 and that this was what led the trial court to disregard the possibility that the appellant was falsely implicated. The respondent referred us to our decision in the case of Machipisa Kombe V The People (7 ). In reply, the appellant conceded that the evidence of the medical officer and that of the arresting officer, PW5 and PW6 J9 respectively did corroborate the commlSSlOnof the offence but hastened to point out that it did not corroborate the identity of the offender. Relying on the case of DPP V Kilbourne(8) and still laying emphasis on the decision in Musupi V The People l41 , the appellant argued that PW2 and PW3, being relatives of the victim, PW4, could have had a motive to give false evidence against the appellant because they were victims of defilement while, PWl, apart from being the victim's mother, had a motive to give false evidence by virtue of the differences she had with the appellant. On those grounds, the appellant argued, there was need for the trial court to warn itself and exclude the possibility of false implication before it could safely convict. Those were the submissions on both sides. The appellant's appeal hinges on the question whether the witnesses PWI to PW4, being related to each other, should have been found to be witnesses with an interest to serve whose evidence required to be corroborated by some other independent evidence. To answer that question we will refer to our decision in the case of Yudah Nchepeshi V The Peoplel91 . In that case we held as follows: J 10 "(i) A court cannot be called upon to address its mind to the question whether or not a witness falls into the category of witnesses whose evidence it is dangerous to accept without corroboration or support unless there is some evidence 'fit to be left to a jury' which raises that issue. The mere assertion by the accused that it was the witness and not the accused who was the culprit is not sufficient without more to raise the issue. (ii) Once the issue is properly raised it is incumbent upon the court to consider it and rule upon it, the court should make a positive finding whether or not the witness is one whose evidence it is dangerous to accept without corroboration or support. (iii)The mere raising of the issue does not render the case a corroboration case as distinct from a straightforward issue of credibility; even though the issue has been raised it is still perfectly proper for the court, having considered all the evidence and circumstances of the case, to conclude that the witness is not one who falls into the category of witnesses whose evidence it is dangerous to accept without corroboration or support". In this case, the appellant did raise issue with the testimony of PWI whom he accused of having a motive to falsely implicate J11 him because of some differences he alleged to have had with her in the past. That issue was considered by the trial court, which rejected the appellant's accusation as a mere afterthought; having been raised only during his defence. As for the rest of the witnesses whose testimony is complained of, the evidence clearly showed that they were all related to the appellant through marriage. There was no evidence that there was acnmony between the household of PW1 and that of her aunt who was married to the appellant. This can be evidenced by the fact that PWI sent her daughters to collect a pot from her aunt's household. Therefore, there was nothing in the evidence to warn the trial court that the four prosecution witnesses would have an interest to falsely implicate the appellant. Indeed, to follow what we said in the case of Chimbol5) cited above, the circumstances did not dictate to the court to make a finding regarding the status of the witnesses complained of. In any event, should the court have found that the circumstances did exist which demanded that they be treated as witnesses with a possible interest to serve, what was required was for the court to consider whether or not the danger of false implication had been excluded. This is what the trial court did when it found no evidence to suggest a motive , . ' , J 12 on the part of the witnesses to falsely implicate the accused. Therefore, even if the trial court did not expressly treat the witnesses as those in the category of witnesses with an interest to serve, its approach in resolving the issue of the corroboration as to the identity of the perpetrator did traverse what is normally required for a court to resolve the issue of witnesses with a possible interest to serve. Had the trial court asked itself the question whether those witnesses were witnesses with an interest to serve it would inevitably have found that they were not. Therefore the appellant's sole ground of appeal fails. There being no other aspect of the judgment which the appellant is aggrieved with, we dismiss the appeal and confirm the sentence of 35 years imprisonment with hard labour. RETIRED .. , M. E. Wanki SUPREME COURT JUDGE .................~ E. M. Hamaundu SUPREME COURT JUDGE . .