Siangumba v The People (Appeal No 180/2023) [2023] ZMCA 228 (30 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No 180/2023 BETWEEN: MICHELO SIANGUMBA � 3 o · · --"" 1 I IJin/ uJ -'· � j · , APPELLANT AND _ (. N n�~··"'(·2/ .�Pl I At r, ,.\., � :< -.... ..... THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga, Chembe JJA On 22nd August 2023 and 30th August 2023 Senior For the Appellant: Mrs. L. Tembo-Tindi, legal Aid Counsel, Board Legal Aid For the Respondent: Mr. G. Zimba, Deputy Chief State Prosecution Authority Advocate, National JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. Esaya Mumpasha, Nange Chiti & Moshi Bongoma v. The People SCZ Appeal No. 12, 13, 14 Of 2021 2. Dorothy Mutale & Another v. The People (1997) S. J. 3. David Zulu v The People (1977) Z. R 151 s.c. 4. George Nswana v The People (1988-1989) 51 (S. C.) ZR (S. C) 5. Ibrahim v. R (1914) AC 599 6. Abel Banda v. The People (1986) Z. R. 105 J2 7. Jackson Kamanga and 4 Others v. The People, SCZ Appeal Number 30, 31, 32, 34/2020 8. Robson Chizike v. The People, CAZ Appeal No. 94 of 2020. Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia. 1.0. INTRODUCTION 1.1. The appellant was charged with one count of the offence of murder contrary to Section 200 of the Penal Code. The particulars of the offence alleged that the appellant on unknown dates but between 2nd and 4th May, 2020 at Mazabuka District in the Southern Province of the Republic of Zambia jointly and whilst acting together with Bright Siangumba murdered Tina Muyuni. 1.2. The appellant was subsequently convicted and sentenced to death and his co-accused juvenile was acquitted by Mulife J. He has appealed against the conviction and sentence. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The appellant's conviction was secured by the evidence of nine prosecution witnesses. A summary of the prosecution evidence relevant to this appeal was that the deceased was last seen alive on J3 2nd May, 2020 in the evening. Her lifeless body was discovered in a drainage at Nakambala Sugar plantation . Her relatives identified her body and it was deposited at the hospital after which a postmortem examination was conducted and the cause of death was determined to be "Blunt impact trauma to the head." Investigations into the death were instituted and it was discovered that the deceased's sim card was, on the 2nd June 2020, inserted into a phone belonging to a juvenile suspect, who was the co-accused in the of the appellant court below. This led to the juvenile suspect's apprehension and subsequently the apprehension of the appellant. The deceased's sim card and phone were recovered from the house in which the appellant and his co-accused lived with their parent. 2.2. The appellant and his co-accused led the police to the place where the body of the deceased was found, in the company of PW2 and PW3. According to PW2 and PW3, the appellant demonstrated how he killed the deceased and pointed her to a place where he killed from. The defence objected to PW2 narrating confessions which were given to the police, stating that the evidence should come through the officers. The court overruled the objection that he stating J4 was simply narrating what he witnessed and the defence could object when the police officer came in to testify. 2.3. This marked the end of the prosecution and his case. The appellant co-accused were found with a case to answer and they were put on their defence. 3.0. THE DEFENCE 3.1. In his defence, the appellant opted to give sworn evidence and called no other witnesses. He narrated that on 25th June, 2020, as he was going to the market at Mulonga extension, he picked up an Itel phone on the road, which turned out to be the deceased's phone. The phone was off and when he reached home, he removed the sim card and put it on the TV stand, together with his sim card. Later that day he told his co-accused (his young brother) to put the sim card which was on the TV stand in his phone as the appellant's phone was damaged. After the sim card was inserted into the phone and the phone was handed over to him, the appellant realized, from the numbers in the phone book, that his brother had inserted a wrong sim card. The appellant then asked his co-accused to insert the correct sim card. A few days later the appellant's co-accused was JS apprehended by the police. The co-accused's led to the apprehension arrest of the appellant. Regarding that he the dates, he admitted could have mixed up the dates, when he was reminded that the sim card was actually inserted on 2nd June, 2020. 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 court found that the evidence against the appellant is circumstantial, arising from the possession phone of the deceased's and sim card. The trial judge also found that there was no evidence linking the co-accused to the murder. The trial court relied on the possession of the phone and sim card, as well as the evidence of PW2 and PW3 about leading, demonstration and confession to the police in convicting the appellant and acquitted the co-accused. 5.0. GROUNDS OF APPEAL 5.1. Unhappy with the High Court judgment, the appellant launched the present appeal, fronting two grounds of appeal couched as follows: (1) The learned trial Court erred in law and fact when the Court admitted evidence of Confession in the absence J6 of conclusive evidence that it was given freely and voluntarily. (2) The learned trial Court erred in law and fact when the Court convicted the Appellant for the offence of Murder based on circumstantial evidence which did not take the case out of the realm of conjecture to permit only an inference of guilt. 6.0. THE APPELLANT'S ARGUMENTS 6.1. The gist of the appellant's argument in support of ground one of the appeal is that the trial court erred when it overruled the appellant's objection to the evidence of PW2 grazing the court's record as the trial court was not going to have the opportunity to inquire into the voluntariness and fairness of the alleged leading, demonstration and confession by the appellant. The appellant called into aid the case of Esaya Mumpasha, Nange Chiti & Moshi Bongoma v. The People1 where it was held that: that whether or not an accused person is a trial court should always, when the point "It is settled represented, is reached at which a witness is the content of a statement, has any objection about to depose as to ask whether the defence to that evidence being led. The J7 of and ...... However, or distress appellants by an accused of demonstration the demonstration we take is that this should apply with equal voluntarily how they committed the crimes. is a re-enactment The judge found that did not show any signs and that the 3rd appellant and the latter the record does not agreed to There is that the police asked them if they would be to go back to the scene and re-enact the way in position force to the evidence person because a demonstration an oral or written confession the photos of of beatings James Kabwe refused to demonstrate even refused to confess. show that the demonstrate no evidence willing which they broke into the Bank or that the police reminded them that they were still under caution and they were not obliged that when the police took them to the scene, they told them that they would take pictures of the or again warned them that they were demonstration to take part in the and were not obliged under caution demonstration if they did not wish to do so. Even if the defence did of the demonstrations satisfied voluntariness doubt and we set aside the finding we are not had proved the beyond reasonable not raise the objection of the demonstrations that the prosecution was introduced, when the evidence by the trial judge." is there evidence to go. Neither 6.2. It was contended all the that had the trial Court considered circumstances surrounding the leading, demonstration and confession, the trial Court would have inquired into the same to ensure that they were made freely and voluntarily. J8 6.3. In summation, it was submitted that the court having failed to inquire into the voluntariness and fairness of the leading, demonstration and confession, it goes without saying that the same could have been obtained under duress and/ or coercion and thus, cannot be relied on to secure a conviction. 6.4. We were urged to exclude the said evidence of leading, demonstration and confession on the court's record. 6.5. In support of the second ground of appeal, it was the learned counsel's contention that even though the appellant was found with the phone and sim card alleged to belong to the deceased, the explanation he gave that he picked up the phone was a reasonable explanation. According to counsel, the appellant's explanation coupled with the fact that a period of one month had elapsed from the time the deceased went missing to the time the deceased's alleged sim card was inserted in the appellant's phone leaves room for other inferences to be drawn other than the inference that the appellant killed the deceased and took her phone. J9 6.6. It was contended that an inference which is more favourable to the should appellant be made. We were referred to the case of Dorothy Mutate & Another v. The People 2 where it was held that: principle of criminal it has are possible, law that the one that is more favourable "Where two or more inferences always been a cardinal Court will adopt the favourable that inference. Court is required accused". to resolve such or less to exclude doubts the doubts in favour of the to an accused if there is nothing Where there are lingering 6.7. We were urged to quash the conviction and sentence and set the appellant at liberty. 7.0. RESPONDENT'S ARGUMENT 7.1. In responding to ground one of the appeal, learned for the counsel appellant supported the conviction and sentence of the trial He court. contended that it is a settled principle of law that for a confession to be admissible, it must be made in accordance with the judge's rules to a person in authority. It was submitted that the appellant's argument that PW2 and PW3 who are not police officers were used by the prosecution to sneak in a confession against the appellant is misplaced. According to counsel, the trial court cannot be criticized for having accepted the evidence of PW2 and PW3 as the same did JlO not fall in the ambit of the rules governing the receipt of confession evidence. 7.2. In responding to ground two of the appeal, counsel submitted that there was overwhelming evidence circumstantial presented before the trial court pointing to the appellant as the perpetrator of the subject offence and that the said evidence took the case out of the realm of conjecture such that it attained a degree of cogency to permit only an inference of guilt in line with the decision in the case of David Zulu v The People3. 7.3. It was further contended that the trial court fully assessed the evidence before it and made a finding which rules out the possibility that the exhibit s exchanged hands having examined the date when the sim card was first inserted into the juvenile phone. Counsel contended that the trial court was on firm ground to draw an inference that the appellant was the one who killed the deceased having ruled out that his explanation was tainted with inconsistencies and falsehood. We were referred to the case of George Nswana v The People4 where it was held that "The inference particularly of guilty based on recent possession, where no explanation is offered which Jll likelihood be true, rests on the absence of any that the goods might have might reasonably reasonable changed hands in the meantime and the consequent high degree of probability obtained himself possession offence. Where suspicious that indicate to have been in innocent remains whether the applicant, possession, retainer." that the person in recent them and committed the the case surround claim cannot reasonably the question not being in innocent was the thief or a guilty receiver that the applicant possession, features or 7.4. In summation, it was contended that the totality of circumstantial evidence on record took this case out of the realm of conjecture leading only to the inference that the appellant murdered the deceased. We were urged to dismiss the appeal as it lacks merit. 8.0. THE HEARING OF THE APPEAL 8.1. At the hearing Mrs. of this appeal, learned for the appellant counsel Tembo-Tindi and learned counsel for the respondent Mr. Zimba informed the Court that they would rely on the filed arguments. 9.0. CONSIDERATION AND DECISION OF THE COURT 9.1. We have carefully examined the evidence on the record, the arguments by both counsel and the judgment of the lower court. We shall deal with the grounds in the order in which they appear. J12 9.2. The historical statement of the common law rule as to the admissibility of confessions was that of Lord Summer in Ibrahim v. R5 where he stated at page 609 that: that no statement him unless by in evidence is admissible ...... "It has long been established an accused it is shown by the prosecution statement, from him either by fear of prejudice advantage authority." exercised against or held out by a person in in the sense that it has not been obtained to have been a voluntary or hope of 9.3. We note that during the trial, when the defence noticed that PW2 was giving evidence of a purported confession, to PW2 they objected narrating confessions that were given to the police, stating that the evidence should come through the police officers. In his wisdom, the trial Judge overruled the objection stating that PW2 was simply narrating what he had witnessed and the defence could object when the officer came in to testify. 9.4. The appellant was in the custody of the police when he allegedly led the police to the place where the deceased's body had been found. This was the time when the appellant confessed to committing the offence herein. PW2 and PW3 were persons not in authority, who were present when the appellant confessed to the police. In the J13 circumstances, PW2 it was wrong for the trial court to have allowed and PW3 to give confession evidence which was given to the police, notwithstanding the fact that they are not persons in authority. This was obviously an attempt by the state to sneak in a confession through the back door. The confession narrated by PW2 and PW3 must as such be excluded from the record. 9.5. We wish to guide that, a good prosecutor must be familiar with his or her case before appearing in court to prosecute. He or she must be familiar with the type of evidence they want to present before court in order to secure a conviction. If it comprises of a confession statement given to the police, that evidence must be presented through a person in authority as defined in the case of Abel Banda v. The People6 , and not through civilian witnesses in the vicinity. This is because there are different rules applicable in terms of confession evidence. Prosecution must be well thought out and organised, not prosecution by chance, coincidence or accident. 9.6. Therefore, after determining that the prosecutor will rely on a confession, the witness must be referred to the warn and caution statement, at an appropriate stage, for purposes of identifying the J14 It is statement. at the point of admission that the defence should be asked whether they have any objection to its production. The added requirement at this point is that the trial court must also personally ask the accused if the statement was voluntary or not (see the cases of Jackson Kamanga and 4 Others v. The People7 , and Robson Chizike v. The People8). If an objection is raised as to the voluntariness of a confession, the trial court must then conduct a trial within a trial. 9.7. We have found it necessary to give this guidance on account of cases which have come before us where, what appears to be haphazard, accidental, blind or prosecution by chance has become the order of the day. A laissez-faire kind of prosecution. 9.8. We therefore find merit in ground one and we allow it. The confession presented by PW2 and PW3 is expunged from the record. 9.9. We now turn to consider ground two. The issue in this ground is whether evidence the circumstantial on the record is sufficient to support a conviction after the confession has been excluded. 9.10. It well settled that a court can convict on circumstantial evidence. The requirement evidence is that the circumstantial must permit only JlS an inference of guilty. The circumstantial evidence the against appellant is that he was in possession of the phone and sim card which belonged to the deceased. His explanation was that he picked the phone on the road as he was going to the market, about a month after the deceased was found dead. 9.11. In the case of David Zulu supra, the Supreme Court held that: peculiar to circumstantial that by its very nature it is not direct proof of (i) It is a weakness evidence a matter at issue but rather but relevant inference to the fact in issue and from which an of the fact in issue may be drawn. is proof of facts not in issue drawing; (ii) It is incumbent guard against circumstantial evidence feel safe to evidence circumstantial realm of conjecture which can permit cogency on a trial judge that he should from the wrong inferences before he can satisfied that the of the the case out so that it attains such a degree of guilt. The judge must be has taken only an inference of at his disposal convict. explanation and it was therefore (iii) The appellant's was not rebutted, inference were caused in the course of committing issue. one and an unwarranted body at on the appellant's that the scratches was a logical the offence J16 9.12. The appellant proffered an explanation for his possession of the deceased's phone. We agree with counsel for the appellant that there is no evidence on the record rebutting the appellant's explanation and as such, it cannot be dismissed as a lie. Further, as the trial court rightly noted in its judgment, a phone could easily exchange hands. We agree that a period of one month could have been enough for the phone to have exchanged hands. 9.13. We note that in convicting the appellant on circumstantial evidence, the trial court heavily relied on the evidence of PW2 and PW3 for support. Had the trial court analyzed the evidence without that of PW2 and PW3, it would certainly have found that the circumstantial evidence could not permit only an inference of guilt, in the light of the explanation. We therefore evidence find that the circumstantial herein was insufficient to support the conviction. We set aside the finding by the trial court on this score. We thus allow ground two of the appeal. l J17 10.0. CONCLUSION 10.1. Having allowed both grounds of appeal, we set aside the conviction and the death sentence and set the appellant at liberty forthwith. C. F. R. MCH A DEPUTY JUDGE PRESIDENT ........... . � K. MUZENGA Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE ....... . ............ �.� ··················