Miloslav v The People (Appeal 49 of 2013) [2014] ZMSC 142 (9 March 2014)

SCZ JUDGMENT NO.26/2014 P624. IN THE SUPREME COURT FOR ZAMBIA APPEAL No.049/2013 HOLDEN AT LUSAKA (Appellate Jurisdiction) BETWEEN: APPELLANT AND MIKE NEDIC MILOSLAV THE PEOPLE RESPONDENT CORAM: Mumba, ADCJ, Muyovwe, JS, and Hamaundu, AJS On 7th May, 2013 and 10th March, 2014 For the Appellant : Mr. Derrick Mulenga, Messrs Derrick Mulenga and For the Respondent: Mr. Richard Libogo Masempela, State Advocate Company J U D G M E N T HAMAUNDU, AJS, delivered the Judgment of the Court Cases referred to: 1. Mwewa Murono v The People [2004] Z. R. 207 2. Emmanuel Phiri v The People [1982] Z. R 77 , 3. R v Yacoob (1981) CR 4. CR 248, R v Hill (1951) 2 Den 25 5. R v Dunning [1965) Crim LR 372 , 6. Zimba v The People [1980] ZR 359 7. R v Kimber 77 Cr. App. R. 225 . J 2 8. Mushemi v The People [1982] Z. R 71 9. Mohamed v Attorney General [1982] ZR 49 10. Patrick Brian Barker (1977) 65 Cr. App. R. 287 Works referred to: 11. Archibald on Criminal Pleadings 12. Magistrates Handbook, 6th edition by E. J. Swarbrick When we heard this appeal, Hon. Mrs. Justices F. N. N. Mumba sat with us. She has since retired. Therefore, this is a majority judgment. This is an appeal against conviction. The appellant was charged in the Subordinate Court of the first class at Ndola with the offence of indecent assault on a female contrary to Section 137(1) of the Penal Code, Chapter 87 of the Laws of Zambia. It was alleged that on the 17th February, 2011, in Ndola, the appellant indecently assaulted a woman named Catherine Kasongo. The evidence adduced by the prosecution before the Subordinate Court was as follows: The complainant, Catherine Kasongo, who was PW1 during the trial, used to work for the appellant as a maid. On the 17th February, 2011, the complainant reported for work as usual. In the afternoon of that day, the J 3 appellant forcibly inserted his fingers into the complainant’s private parts. The appellant, also, forced the complainant to massage his private parts up to the point where he ejaculated in the hands of the complainant. In revulsion, the complainant started crying and went outside the house where she poured water on her body. The complainant, then, jumped over the boundary wall and fell to the ground. She did not rise from the ground. The complainant was lifted by passers-by who took her to Kansenshi police station. A female police officer, Faless Mbewe, who was PW2 during the trial, attended to the complainant. The case was, initially, treated as that of rape. The officer took the complainant to Ndola Central Hospital for examination and treatment. The officer interviewed both the complainant and the appellant. The appellant admitted having inserted his fingers in the complainant’s private parts. The appellant was charged with indecent assault. The evidence adduced by the appellant during trial was as follows: On the day in issue, he had joked with the complainant J 4 about how beautiful she looked. In the process of joking, he had touched the complainant’s buttocks. When the complainant realized that he was not going to give her money, she got annoyed and ran away from the kitchen. When the appellant’s wife came from work at 14:00 hours, the complainant told her that she was not feeling well. The appellant’s wife dismissed the complainant from work instantly. Around 19.00 hours, the police came and apprehended the appellant. On that evidence, the trial court found as follows: (i) that the medical report showed that the complainant had sustained bruises on both arms, thighs and her private parts. (ii) That, by his own admission, the appellant had touched the complainant on the shoulders, thighs and buttocks. J 5 The trial court, then, held that the conduct which the appellant had admitted, on his own, amounted to indecent assault. The appellant was convicted of the offence. He was sentenced by the High Court to fifteen years imprisonment with hard labour. Initially, the appellant filed three grounds of appeal. The first ground was that the trial court fell into grave error when it failed to give effect to the purport and import of Section 338(1) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. The second ground was that the trial court erred in law and fact when it failed to consider the insufficiency and totality of the evidence before it, thereby convicting the appellant. The third ground was that the trial court misdirected itself in law when it failed to appreciate that the appellant could not follow proceedings owing to the language barrier. J 6 At the hearing of the appeal, the appellant abandoned the fore going grounds and, instead, advanced four different ones. The first ground now is that the trial court erred in law and fact when it found the appellant with a case to answer at the close of the prosecution’s case. The second ground is that the trial court erred in law and fact when it convicted the appellant of the offence in the absence of corroborative evidence. The third ground is that the trial court erred in law when it convicted the appellant on the evidence of the complainant who suffered from unsoundness of mind without satisfying itself that the complainant understood the nature of an oath and was capable of giving rational testimony. J 7 The fourth ground is in two parts. The first part is that the trial court erred in law and fact when it held that the findings in the medical report supported the prosecution’s evidence. The second part is that the trial court erred in law and fact when it held that the appellant had corroborated the evidence of the complainant when he admitted touching the complainant’s shoulder, thigh and buttocks. On behalf of the appellant, learned counsel, Mr. Mulenga, argued the appeal. In the first ground, learned counsel argued that the ingredients that were required to be established in order to prove the offence were as follows; (i) that the complainant was indecently assaulted by the appellant. (ii) that the indecent assault was unlawful (that is, without the consent of the complainant since she was an adult). J 8 Learned counsel argued that, while the prosecution had established, at the close of their case, that the complainant had been indecently assaulted, they did not establish the second ingredient, namely, that the indecent assault was committed without the consent of the complainant. In support of this argument, learned counsel pointed to the complainant’s evidence that she had massaged the appellant’s private parts until he ejaculated. Counsel also pointed to the appellant’s testimony that the complainant only got annoyed when she realized that the appellant was not going to give her money. Counsel argued that such evidence was indicative only of the fact that both the complainant and the appellant were consenting adults to what was alleged to be an indecent assault. Learned counsel relied on the case of Mwewa Murono v The People(1) for the foregoing submissions. In the second ground, learned counsel pointed out that the witnesses who were said to have picked up the complainant J 9 outside the wall were never called upon to testify in court. Counsel submitted that, in the circumstances, the only evidence against the appellant was that given by the complainant. Counsel argued that, on the authority of the case of Emmanuel Phiri v The People(2) a conviction on the charge of indecent assault could not stand. In the third ground, learned counsel submitted that the record of proceedings showed that the evidence of the complainant was incoherent. On the authority of the cases of R v Yacoob(3) , R v Hill(4) and R v Dunning(5) and the Magistrates Handbook by E. J. Sharbrick, 1991 edition, pages 641 – 642, counsel argued that the trial court should have conducted a voire dire in order for it to decide whether the complainant was competent to testify or not. Counsel argued that the failure by the trial court to invoke that process was a serious error on which the appeal must be allowed. J 10 In the first part of the fourth ground, learned counsel submitted that the reliance by the trial court on the medical report meant that the court believed the contents thereof. Counsel submitted that, after believing the contents, the trial court came to the conclusion that the bruises stated in the medical report were caused by the appellant, ignoring the fact that there was evidence from the complainant that she had jumped over the boundary wall and fallen. Counsel argued that the trial court should have analysed the evidence and resolved the issue as to whether the bruises were caused by the appellant or by the complainant’s fall. Counsel contended that, in the light of that omission, the conclusion by the trial court that the medical report corroborated the prosecution’s evidence was arrived at in error. Counsel relied on the case of Zimba v The People(6) for the foregoing submissions. J 11 In the second part of the fourth ground, counsel submitted that, indeed, the appellant’s testimony in his defence suggested an indecent assault. Counsel argued, however, that where a man believed that a woman was consenting to his conduct no offence would be committed. Counsel relied on Archibald on Criminal Pleadings and the case of R v Kimber(7) and argued that the trial court should have considered the fact that the appellant was merely joking. Counsel further argued that the trial court did not consider at all the appellant’s testimony that the complainant only got annoyed when she realized that the appellant was not going to give her money. Counsel submitted that it was the trial court’s duty to consider that defence and give reasons why it did not accept the defence. Those were the submissions on behalf of the appellant. On behalf of the State, the learned State Advocate Mr Masempela argued the appeal. Counsel argued the first two J 12 grounds together. Counsel submitted that the trial court did not err in law when it found the appellant with a case to answer because the appellant himself did not deny touching the complainant. Counsel submitted that to touch a woman on her private parts, buttocks and thighs against her will was an indecent assault. To illustrate that the complainant did not consent to the appellant’s touch, counsel referred us to the complainant’s evidence that she had run away from the appellant and that she had cried and vomited after he had forced her to massage his private parts. Counsel submitted that the medical report provided corroboration of the indecent assault with its finding that the complainant’s private parts were bruised. Counsel submitted that corroboration as regards the identity of the perpetrator came from the appellant’s admission that he touched the complainant’s buttocks, thighs and shoulder. Counsel, further, argued that there was no evidence J 13 before the trial court to show cause why the complainant would falsely implicate the appellant. Counsel relied on the case of Emmanuel Phiri v The People(2) for the foregoing arguments. In the third ground, learned counsel submitted that the trial court, did not err when it did not conduct a voire dire on the complainant because she was of sound mind. Counsel pointed out that the complainant had been employed by the appellant as a maid. Counsel, further, pointed out that the complainant’s testimony was consistent. It was argued that if the complainant had been of unsound mind, the appellant would not have kept her in employment. Counsel submitted, also, that the trial court would have noticed any strange behavior about her. In the first part of the fourth ground, learned counsel argued that the appellant was trying to attribute the bruises listed on the medical report to the complainant’s fall after jumping over the wall. Counsel submitted that the bruises on the complainant’s private J 14 parts were consistent with her complaint that the appellant had inserted a finger in them. Counsel argued that such bruises could not have been caused by the complainants fall. In the second part of the fourth ground, counsel submitted that the relationship between the appellant and the complainant was that of master and servant, as opposed to that of peers or spouses or lovers. Counsel argued that if a master were to touch his servant’s body in an erotic way, without first asking her, that would be indecent of the master. Counsel submitted that, in this case, the appellant admitted to having touched the complainant’s buttocks without asking her first. Those were the submissions on behalf of the State. We have set out the test to be applied in determining whether or not there is a case to answer in a number of our decisions. The most recent case is that of Mwewa Murono v The People(1) in which we held: J 15 “2. A submission of no case to answer may properly be made and upheld when there has been no evidence to prove the essential element of the alleged offence and when evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it.” The Magistrate’s Handbook(12) which provides authoritative guidance to Subordinate courts in Zambia and, to a large extent, the High Court, as regards procedure in criminal cases, has provided the approach which a trial court should adopt at the close of the prosecution case. The Handbook provides; “At this stage, provided the evidence is not obviously defective, the magistrate should assume that the evidence for the prosecution will be accepted and he should ignore evidence militating against the prosecution case as it could, conceivably, be rejected. J 16 The magistrate, therefore, should not concern himself with the quality of the evidence by considering the veracity of the various witnesses and deciding which evidence to accept. Provided that there has been sufficient evidence adduced which, if accepted, would justify a conviction then the magistrate should rule that there is a case to answer” (6th edition by E. J. Swarbrick, page 214) The Handbook bases this guidance on the decision of the English Court of Appeal in the case of Patrick Brian Barker(10). In that case, Lord Widgery, C J said: “It cannot be clearly stated that the Judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the Judge’s J 17 job to weigh the evidence, decide who is telling the truth and stop the case merely because he thinks the witness is lying” (at page 288). In this case, counsel for the appellant acknowledged that, at the close of the case for the prosecution, one ingredient had been established, namely, that the complainant had been indecently assaulted. Counsel, however, argued that the second ingredient, namely that the indecent assault was without the complainant’s consent, had not been established. In support of this argument, learned counsel relied on the complainant’s testimony that she had massaged the appellant’s private parts until he ejaculated. Learned counsel argued that the trial court was in error for not interpreting that testimony, at that stage, as being evidence that the appellant and the complainant were consenting adults to what was, later, alleged to be an indecent assault. J 18 The complainant’s testimony was that the indecent assault on her was without her consent. Her testimony was that the appellant forced her to massage his private parts. According to the authorities which we have just cited, it was not the duty of the trial court, at that stage, to weigh the complainant’s testimony and decide whether she was lying or not. As long as that testimony had not been so discredited that no reasonable tribunal could safely convict on it, the duty of the trial court was to assume that the complainant’s testimony was true in its totality and, then, decide whether, on that testimony, all the ingredients of the offence had been established. In this case, we are satisfied that the complainant’s testimony had been presented in a very coherent manner. We are satisfied, also, that, based on the assumption that the testimony was true, it J 19 had established the three ingredients of the offence, namely; (i) that the complainant had been indecently assaulted, (ii) that the indecent assault was committed by the appellant and (iii) that the assault was without the consent of the complainant. We are satisfied again that, from the record, the complainant’s testimony was not discredited at all. Therefore, we hold that the trial court, did correctly find the appellant with a case to answer. The first ground of appeal fails. In the second ground, the appellant contends that the trial court erred when it convicted the appellant on uncorroborated evidence. In this ground, learned counsel’s argument was that, since the people who were said to have picked up the complainant after she had fallen off the wall were not called as witnesses, then, the only evidence against the appellant was that of the complainant. J 20 In the case of Emmanuel Phiri v The People(2), which learned counsel cited in support of the argument in this ground, we held as follows: “(i) In a sexual offence there must be corroboration of both the commission of the offence and the identity of the offender in order to eliminate the dangers of false complaint and false implication. Failure by the court to warn itself is a misdirection. (iii) A conviction may be upheld in a proper case notwithstanding that no warning as to corroboration has been given if there in fact exists in the case corroboration or that something more as excludes the dangers referred to. J 21 (iv) It is a special and compelling ground, or that something more which would justify a conviction on uncorroborated evidence, where, in the particular circumstances of the case there can be no motive for a prosecutrix deliberately and dishonesty to make a false allegation against an accused; and the case in effect resolves itself in practice to being no different from any other in which the conviction depends on the reliability of her evidence as to the identity of the culprit.” The trial court found as a fact that the appellant had touched the complainant on the shoulders, thighs and buttocks. The finding of fact was based on the appellant’s own admission in his defence, both during examination in chief and in cross- examination. J 22 This finding of fact discloses evidence that was corroborative of the fact that the appellant conducted himself towards the complainant in a manner which, in the absence of consent from the complainant, would be termed as an indecent assault. The finding of fact, however, does not go further to provide corroboration to the complainant’s testimony that the assault was without her consent. It is clear from the record that the appellant’s contention was that his behavior towards the complainant was with her consent and that the latter only became annoyed after she realized that he was not going to give her money. On the other hand, the record shows that the complainant’s contention was that the appellant’s behaviour towards her was without her consent. This was a disputed issue of fact. There was no doubt that the issue went to the root of the third ingredient in the offence, that is, the lack of consent on the part of the complainant. J 23 In the case of Mushemi v The People(8) at page 74 we stated as follows; “The judgment of any trial court faced with conflicting evidence should show on the face of it the reasons why a witness who has been seriously contradicted by others is believed in preference to those others.” Therefore, it was the duty of the trial court to resolve the disputed issue of consent by assessing the two conflicting versions between the complainant and the appellant. Upon that assessment, the trial court should have accepted one and rejected the other, giving reasons for doing so. That omission by the trial court was a misdirection. However, the misdirection notwithstanding, there is sufficient evidence on record which would have assisted the trial court to assess the two versions. In the case of Mohamed v Attorney General(9) we held; J 24 “The appellate court may draw its own inferences in opposition to those drawn by the trial court although it may not lightly reverse the findings of primary facts.” Likewise, where a trial court has omitted to resolve a dispute of fact and there is sufficient evidence for the appellate court to do so, the appellate court may proceed to draw its own inferences from the evidence. In this case, the complainant’s testimony was as follows: After the indecent assault on her, she vomited. She, then, ran and jumped over the boundary wall. She fell on the other side. She could not rise from the ground until some people came and picked her up. That evidence was not challenged. We find it odd that the complainant could have been so revulsed by the indecent assault as to vomit and that she could have risked life and part by jumping over the boundary wall merely because the appellant J 25 had refused to give her money for his sexual advances. The only logical inference that can be drawn from the complainant’s reaction is that she did not consent to the appellant’s indecent assault. Therefore, although the trial court did not resolve the disputed issue regarding consent on the part of the complainant, the evidence on record is such that, had the trial court done so, it would inevitably have come to the conclusion that the complainant did not consent to the indecent assault. The second ground of appeal fails. In the third ground, the appellant contends that the trial court erred when it received the evidence of the complainant without conducting a voire dire. The gist of the argument by counsel for the appellant in this ground was that since the complainant’s testimony was incoherent and that the complainant had stated that she could not remember how she was taken to the psychiatric wing of the J 26 hospital, it was the duty of the trial court to conduct a voire dire and make a ruling as to whether or not the complainant was a competent witness. We wish to cite a passage in the Magistrates Handbook. The passage is as follows: “If a witness who has been sworn appears, while attempting to give evidence, to be of unsound mind or too incoherent or incapable of communication to make sense, the court may rule the witness incompetent. In such cases the court should conduct a voire dire in the usual way and make an appropriate ruling. If the court rules that the witness is incompetent the magistrate must then note on the record that any evidence already given by the witness will be ignored for the purpose of the trial. If the incompetency appears to be temporary the court may adjourn the J 27 taking of his evidence until the incapacity is over.” (page 642) It is obvious from the foregoing passage that the trial court will only conduct a voire dire when it becomes apparent that there is something unusual with the witness before it. In this case, we agree with the submissions by the learned State Advocate that the complainant’s testimony, as it appears in the record, was very consistent and was given with lucid clarity. There was nothing in the complainant’s testimony that could have compelled the trial court to conduct a voire dire. The third ground of appeal also fails. In the first part of the fourth ground, the appellant contends that the trial court erred when it made a finding that the complainant’s testimony that she was indecently assaulted was supported by the medical report. J 28 The gist of the argument by counsel for the appellant was that the trial court should have considered whether the bruises were caused by the complainant’s fall after jumping over the wall. The observations in the medical report were that the complainant had bruises on the posterior aspects of both arms and thighs. The observations were also that the complainant had bruises on her private parts. While the bruises on the external parts of the complainant’s arms and thighs could have been caused when she fell after jumping over the wall, we agree with the learned State Advocate’s submissions that the bruises on the complainant’s private parts, on the other hand, were consistent with her testimony that the appellant had forcibly inserted his fingers in her private parts. Furthermore, the doctor, being a medical expert, was in a position to determine whether the bruises on the complainant were J 29 consistent with causes other than those of forcible sexual intercourse. However, the doctor made a specific finding that the bruises that he had observed on the complainant were consistent with forcible sexual intercourse. That finding was sufficient for the court below to make a finding that the prosecution evidence was supported by the medical report. The first part of the fourth ground fails. In the second part of the fourth ground, the appellant contends that the trial court erred when it held that the appellant’s testimony corroborated the evidence of the complainant. The gist of the argument by counsel for the appellant in this ground was that the appellant believed that the complainant was consenting to the indecent assault. J 30 We have looked at the case of R v David Michael Kimber(7), cited by counsel for the appellant. Indeed, we agree that the decision in that case is that it is a defence in a case of this nature if an accused person believed that the complainant was consenting and that it is the belief, not the grounds on which it is based, which goes to negative the intent to indecently assault without the complainant’s consent. We have pointed out in the second ground that the complainant’s reaction to the indecent assault in this case signified a total lack of consent on her part. The question now is whether the appellant believed that she was consenting. As the learned State Advocate submitted, the relationship between the appellant and the complainant was that of master and servant. There was no evidence that the two were also in a romantic relationship. That notwithstanding, the appellant went ahead to indecently assault her without bothering to find out whether she would consent or not. Clearly, that attitude of indifference on the J 31 appellant’s part did rebut the defence that the appellant believed that the complainant was consenting. We are satisfied that had the trial court considered this aspect of the case, it would inevitably have concluded that the appellant did not believe that the complainant was consenting to his indecent assault. The second part of the fourth ground, also fails. Therefore, the appellant’s appeal has failed. We have, however, considered the sentence of fifteen years imprisonment that was meted out to the appellant. The minimum sentence for the offence of indecent assault is fifteen years. The maximum sentence is twenty years. The minimum sentence is reserved for those cases which do not disclose aggravating circumstances. In a case of this nature, an example would be an indecent assault between peers. In this case, the appellant was master over the complainant. The attitude he adopted in committing this offence shows that he set out to abuse the complainant because of the authority that he wielded over her. J 32 Therefore, the case was removed from the category of those which deserve the minimum sentence. The imposition of the minimum sentence was, therefore, wrong in principle. We hereby set aside the sentence of fifteen years imprisonment. In its place, we impose on the appellant the sentence of twenty years imprisonment with hard labour with effect from the date of conviction. RETIRED ____________________________ F. N. M. MUMBA ACTING DEPUTY CHIEF JUSTICE __________________ E. M. HAMAUNDU E. N. C MUYOVWE _____________________ ACTING SUPREME COURT JUDGE SUPREME COURT JUDGE