Daka v People (Appeal 103 of 1984) [1987] ZMSC 44 (14 July 1987)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 103 OF 1984 HOLDEN AT LUSAKA BETWEEN: MICHAEL DAKA Appellant AND THE PEOPLE Respondent CORAM' Ngulube, D. C. J., Gardner and Sakala JJ. S 14 July, 1987 For the Appellant : In person For the Respondent : Mr. K. C. Chanda, Senior State Advocate JUDGMENT Sakala, J. S., delivered the judgment of the court. The appellant was convicted of stock theft together with a co-accused by a Subordinate court of the first class holden at Petauke. The particulars of the offence alleged that on 12th September, 1983 at Mumbi village in Petauke, jointly and whilst acting together the two stole two oxen valued at K1,000.00 the property of Masauso Mwenda. After the conviction the appellant was committed to the High , Court for sentence on account of his having two previous convictions of stock theft, and the trial court had no power to impose the mandatory minimum sentence of seven years for a subsequent offence of stock theft. The High Court sentenced the appellant to seven years Imprisonment with hard labour. The appellant has appealed to this court against both conviction and sentence. The appellant filed two written grounds of appeal the first one being that there was no eye witness to the offence and that had the sentencing court considered his explanation he would not have been sentenced to seven years. He has also filed two additional grounds J2 - in this court this morning to the effect that the trial court erred in law and fact by admitting the confession when he had informed the court that he was tortured by the police. The second ground criticises the courts' ruling in the trial within a trial in that no reasons were stated in that ruling. On behalf of the State Mr. Chanda supports the conviction. He pointed out that the appellant was seen by PW4, his brother, who spoke to him at the time they met on the road driving the two oxen. While conceding that the confession was not properly admitted in evidence he submitted that there were other good confessions made by the appellant to PW's 1, 5 and 6. It was not in dispute that two oxen belonging to the ■ \ complainant went missing on 12th September, 1983. The case for the prosecution was that on the evening of 12th September PW4 was returning to his home village after a visit. On his way he met two young men with two oxen, he asked them three times as to whether they were known people but they did not answer him. When he asked where they were going they replied that they were going to the village where he had come from. The evidence of PW4 was to the effect that they parted company but later he suspected that the two oxen could be stollen. He decided to return to the village he had come from, he followed the two young men until they reached the village where they had said they were going. The evidence of PW4 is further to the effect that when he reached the village he went ahead and mobilised the youths to waylay the two young men. Shortly afterwards one of the two young men was apprehended within the vicinity of the village. PW4 identified the apprehended person as the appellant who was his brother. According to this witness the appellant told him that the other young man had run away. The prosecution evidence also - J3 - revealed that the appellant after his apprehension confessed to PWs 1, 5 and 6 that they had stolen the two oxen. The learned trial magistrate in convicting the appellant relied on the confession statement recorded from the appellant under warn and caution admitted after a trial within a trial. In our view the trial within a trial had been improperly conducted in that the contents of the statement the subject of the trial within a trial had been introduced into the trial within a trial itself before a determination of the voluntariness of the whole statement was made. Apart from that, the ruling itself appears to have ignored completely the complaints by the appellant. This in our view was a misdirection. On account of this misdirection this conviction can only be upheld if we are able on the evidence on record to apply the proviso to Section 15 (1) of the Supreme Court of Zambia Act. The evidence of PW4 shows that he met the two men with the two oxen, he talked to them. Shortly after parting company he followed them while they were still with the two oxen as he suspected the same to have been stolen. They reached the village together, he went ahead and organised the youths to apprehend the two young men. The appellant was apprehended within the vicinity with the two oxen. The prosecution case is that the appellant confessed to PWs 1, 5 and 6 to have stolen the two animals. The appellant's defence was a denial explaining that he also met the two young men with the two oxen while on his way home and he just followed them. We are satisfied that the confessions made to PW1, and PW5 were good confessions. We note that the confession made to PW6 was a confession made to a special constable. In the light of the other two good confessions we do not need to decide the issue of whether a confession made to a special constable could also be a good confession. We leave that issue to be decided in a proper case. J4 - On the totality of the prosecution evidence we are satisfied that this is a proper case to apply the proviso to Section 15 (1) of the Supreme Court of Zambia Act. We accordingly uphold the conviction. The appeal against conviction is dismissed. No appeal lies against the mandatory minimum sentence. M. s. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE