Moses Chisha and Ors v The People (Appeal 9,10,11,12,13, 14/ 2023) [2023] ZMCA 359 (23 November 2023)

• I IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT NDOLA (CRIMINAL JURISDICTION) APPEAL 9 , 1 0, 11 , 12 , 13 , 14 / 2023 BETWEEN: MOSES CHISHA CHAKALU CHIFWANYANGA DANIEL NGOMA BERNARD ZULU WILLIAM CHULU WILLIAM MWANSA AND THE PEOPLE 1 ST APPELLANT 2 ND APPELLANT 3 RD APPELLANT 4 T H APPELLANT / 5 TH APPELLANT 6 TH APPELLANT RESPONDENT CORAM: Mchenga DJP , Banda-Bobo, Sharpe-Phiri, JJA ON : 14 th November 2023 and 23 rd November 2023 For the Appellant : J. K . Matende , Le gal Ai d Cou nsel, Legal Aid Board For the Respondent: V. Choongo, State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP , delivered the judgment of the court Cases referred to : J2 1. David Zulu v. The People [ 1977] Z. R. 151 2. George Nswan a v . The Pe ople [1988 - 1 989] Z . R . 174 3 . Sipa l o Chibozu a nd Chiboz u v . Th e Peo ple [ 1 9 8 1 ] Z. R. 4. Madubula v . The People , scz· Selected j udgment No 63 o f 1 994 Legislation referred to: 1 . The Penal Code , Chapt e r 87 of the Laws of Zambia INTRODUCTION [1] The appe l lant s appeare d be f ore the Hi gh Cou r t ( D. Mulenga, J . ) , charged with 4 counts o f aggrava te d robbery contrary to Section 294(2) of the Penal Code. [2] They all denie d the c h arges and th e ma t ter p r o c ee d ed to trial . [3] At the end of the tri al , t h e y we re a l l found g ui lty o f three o f t he cha r g e s, and acqu itted of th e f o ur th charge. [4] The appellan t s were all condemned t o su ffe r cap it al punishment for the three charges for which they were convicted. [5] They have al l appea l ed aga i ns t their con vict i o ns . EVIDENCE BEFORE THE TRIAL COURT J3 [6] The evi dence accepted by the trial Judge was that in the afternoon of the 25 t h of February 20 22 , Ming De Yuyang Mine in Kasempa , was attacked by robbers. [7] The robbers who were armed with a firearm and a taser , could not be identified because they were wearing hoodies or masks. [8] In the course of the robbery , they discharged a firearm and rounded up the worker s. The workers were placed in one room and the robbers too k the sum of K46 , 200.00 from Paison Mwi l a , K2 7 , 792 . 00 fr om Li Yiqiang and Kl 5 , 700 . 00 and 3 cell phones fr om Zhang Jian . [9] The robbers also took packets of gold samples from the mine area , before le a~ing . [10] Immediately after the robbers le ft , one of the workers informed another worker , Gift Katanekwa , who was on his way to the mine , to go to the Kasempa turn off in Kalulushi, and take down the number plates of all mo tor vehicles that were corning from the direction of the mine. J4 [11] Gift Katanekwa t ook down the number plates for a Mercedes Benz , AJE 7636 and a Toyota Co r olla , ALC 6903 . These were the only motor vehicles that came from the direction of the mine for a period of about two hours after the r o b b e ry. [12] Police off icers visited the mine t h e same evening , and retrieved a pro jectile from the point where t h e firearm was discharged . [13] The detai l s of the motor vehicles were given to the police in Kasempa, who availed them to t heir co l leagues in Kitwe . [14] The fo l lowing morning , the po li c e in Kit we spot ted the Mercedes Ben z . They apprehended t h e d r iver , the 6 th appellant , and two of hi s passengers. [15] A search o f the mo t or .v e h ic l e y i e l ded a taser and a firearm. The taser was found in the cabin , whi l e the firearm was retrieved from the bonnet. [16] A subsequen t ba lli s t ic e x amination li nke d t h e firearm to the projectile picked up a t the scene of the robbery. The ba l listics exper t c on cl uded that the fire arm found in the 6 t h appellan t ' s motor vehicle , JS discharged the projec tile recover ed from the mine after the robbery . [17] Soon after his apprehension , the 6 t h appel l ant led the police to a bar , where the other 5 appellants were apprehended in a Toyota Corol l a that was being driven by the 3~ appellant. [18) The Toyota Corolla ' s number plate matched the number plate of the Toyota Corolla that was seen driving from the direction of the mine after the robbery . [19] A search of the Toyota Corolla yielded some money and packets of gold samples that were stolen from the mine during the robbery . [20] Al l the appel l ant ' s defences were bare denials. They all claimed they were home in Ki t we . Further , both the 3 rd and 6th appellants . disputed the recovery of the firea rm, taser or gold samples , fr om their motor vehicles . [21] However , the tri al Judge rejected their alibis , concluding that they were not credible . GROUNDS OF APPEAL J6 [22] The four grounds of appeal raise two issues . [23] The first issue relates to th e i nconsistencies in the prosecution evidence , that the trial Judge is said to have failed t o consider . [24] ~he second issue is that an in ference of guilty is not the only inference that could have been drawn on the circumstantial evidence that was before the trial Judge. CONSIDERATION OF THE APPEAL AND COURT'S DECISION [25] Before we deal with what was characterised as inconsistencies i n the prosecution evidence , and whether an infer e nce of guilty , is t h e on l y i nference that could be drawn on the accepted e vidence , it is appropriate that we first evaluate the evidence ·incriminating the 1 s L, 2 r.d , 4 th and 5 t h appellants . [26] Mr. Matende argued that the app rehen s i o n o f t h e 1 sL , 2 nd , 4 t h and 5 :.h appellants , from a mo t or vehicle belonging to the 3 rd appellant , shou ld not have led to their convictions fo r the t hree charges . [27] He referred to the case of David Zulu v. The People1 and submi tted tha t this is because a n inference that J7 they were the persons who robbed the mine , is not the only inference that coul d h ave been drawn from that evidence . [28] In response , Mr . Choongo subm itted that given that the stolen money and mineral samples were found in that motor vehicle a day after the robbery , the trial Judge correctly came -co the conclusion t hat the 1 sL , 2 nd , 4 th a n d 5 th a p pellants , were the robbers . [29] He referred to the case of George Nswana v. The People2 and submitted t~at since those appel l ants were in recent possession of the stolen property , the inference of guilty was property drawn . [30] In the case of George Nswana v. The People 2 , it was held that : "The inference of guilt based on recent possession, particularly where no explanation is offered which might reasonably be true, rests on the absence of any reasonable likelihood that the goods might have changed hands in the meantime and the consequent high degree of probability that the person in recent possession himself obtained them and committed the offence" [31] In this case , the four appellants were fou nd i n a motor vehicle belonging to the 3 ~d appellant , close to 24 hours after the r obbery . The stolen property that JS was found in that motor vehicle , was not on the person of any of them , bu t in t he glove compartment or below car mats . [32) These appellants did not give any explanation for the presence of the gold samp l es in t he motor veh i cle because they denied being found in it. [33) Even if that was the case , can i t be said that the only inference that can be drawn from that evi d ence is that the appellants were the robbe rs , because they we re found in a motor vehicle that was s een driving from the direction of the mine the previous day? [34) In our v iew , given that the on l y e vidence against these appellants is that close to 24 hours after the robbery , they were found in the motor vehicle , an inference that .t hey were the robbers , i s not t he only inference tha t could h ave been drawn . [35) That could probably have been the ca se if they were found in the motor vehicle shortly after t he robbery . But in this case , it is possible that the y could have got in to the motor vehicle just moments before they were found in it~ J9 [36] We will g et b a ck t o t h e i mp li ca ti o ns o f that possibility , after consider i ng t he cas e against the J rd and 6 t h appellants . [37] Mr . Matende poin te d out t h at the evi d e n c e against the and appellants was marr e d by inconsistencies . He went on to a r gue tha t had the trial Judge conside r ed thos e incons i stenc i e s , he wou l d not have come to the con c l usion tha t a n i nfer e nc e o f guilty , was the only inference tha t c ou l d have been drawn on the evidence that was before him . [38] He - referred t o the c as e o f Sipalo Chibozu and Chibozu v. The People 3 and point ed o u t t hat t h e f a il ure by the trial Judge to deal with t he i ncons i stences i n the prosecution evi den c e , was a misdi re ction . [39] He itemised the contradict ory o r u n sa t is f actory evidence as being ; the disparity be t wee n t he amo u nt o f money stolen and the amount of money r ecovered from t he 3 ~ appellant ' s motor vehic l e; t he fa i lure to prov i de seizure forms or ce rti f i cat e s of tran s fe r fo r t he gold samples; the failure to include the gold samples in any of the charg e s ; t he fai l ure to p rov i d e sei z ur e forms or certificates o f t ransfer f o r the tase r ; t he JlO contradictory evidence on whether a firearm was discharged ; and the conflicting evidence on the time the motor vehicles were seen. [40] In response to that argumen t , Mr . Choo ngo referred to the case of Madubula v . The People 4 and submitted that the inconsistencies highlighted by Mr. Matende , did not go to the root of the case against the appellants and were therefore inconsequential . [41] He also argued that some evidence was erroneously categorised as contradictory because it was misapprehended . (42] We are not aware of any law or rule of evidence that the failure to produce in court seizure forms or certificates of transfer , render the evidence colle c te d by a police officer during investigations was inadmissible. [43] That being t he case, we do not f i nd t h a t evi dence from the police that gold samples , a firearm and a taser , were seized from these two appe l lants can be ruled as not being credible because no seizure forms or certificates of trans f er, were p rod u ced d u ri ng the trial. Jll [44] As regards the failure to include the gold samples in any of the charges , it is our view that it is in the discretion of the prosecu tor to decide what articles are in c l uded i n a charge . [45] The fact that the appellants were not charged for stealing them cannot le ad to a conclusion that they were not collected from the mine during the robbery . [46] The question whether they were also ' collected ' from the mine du ri ng the robbery must be dete rmined on t he basis of evidence presented during the tri al . [47] We will now deal with the d is pa rity between the amount of mo ne y stolen and the amount of money Le covered -from the 3~ appellant ' s motor vehic l e . [48] The evidence showed t hat in excess of K70 , 000 . 00 , was sto l en during the robbery . The K32,000.00 that was recovered from. the 3 ~ appe l lant ' s mo t or vehicle , was found c l ose to 24 h ours after the robbery . [49] Anything could have happened wi t h part o f the stolen money between t he robbe ry and its recovery t he following day . That being the case , we do not see how thi s d ispar ity , if it can b e even be · cl assi fied as a disparity , can be an issue . J12 [50] Coming to the time the motcr vehicles were seen, Mr Matende pointed out that the arrest i ng officer gave evidence that the police were in formed about the robbery around 16:00 hours . When Gift Katanekwa, the employee who took down the number plates for the motor vehicles gave evidence , he said that he wrote them down around 18 : 00 hours. [51] We do not see any contradiction in the evidence of these two witnesses. The report of the robbery was made to the police at 16 : 00 hours, wh ile Gift Katanekwa reported the number plates he had taken down at 18 : 00 hours. [52] On the question whether a fire arm was discharged, Paison Mwila told the trial Judge that he saw a firearm being discharged in to the ground be t ween the legs of Li Wang Sheng , during the robbery. Thereafter , the robbers co ll ected Zhang Jian from the room where they had been confined and went with him outside , where h e heard another gunshot . [53] Eve n though Zhang Jian den ied tha t a firearm was discharged, Li Y_i . Qiang , testified t hat after hearing a gunshot , he saw smoke at the p lace wh ere one of th e J13 robbers was with Li Wang Sheng. Li Wang Sheng did not testify . [54) In view of the fact that the police picked up a projecti le discharged from a firearm, we are satisfied that the trial Judge cannot be faulted for findin g that a firearm was discharged during the robbery , despite Zhang Jian saying that he did not hear any gunshot . [55) Reverting to the entire evidence, we are satisfied that there was cogent evidence that Mi ng De Yu Yang Mine in Kasempa , was on 25 th February 2022 attacked by robbers who stole money and phon es from the workers. The robbers also stole gold samp les and a firearm was dischargetj during the robbery . [56) Soon after the robbery, a motor vehicle that the 3 rd appellant owned was seen driving from the mine. Also seen driving from the mine , was a motor vehicle that the 6 th appellant was found driving the following day. [57) In the motor vehicle that the 6 L h appellant was found driving the following day , a firearm was recovered . The firearm was found to have discharged a projectile that was -recovered from the scene of the robber y . . . • I J14 [58] On his apprehension , the 6 th appel la nt led the police to the 3 rd appellant . I n the third appellant ' s motor vehicle , gold samples that were stolen during the robbery , were recovered . [59] On this evidence, we are satisfied that the trial Judge was entit l ed to come to the conclusion that even though the evidence against the 3 r d and 6 t h appellant was circumstantial, the only inference tha t could be drawn on it , was that the duo was part of the gang of robbers who att 9 cked Ming De Yu Yang Mine on 25 t h Februar,-y 2022 . . VERDICT [60] Having found that an inference of guilty is not the only inference tha t could have been dra wn on the evidence against the 1 st , 2 nd , 4 th and 5 i.h appellants , we fi nd that their convictions are not satisfactory . [61] We allow their appeals and se t aside their convictions . W(;; also quash the sentences imposed on them. . . JlS [62] As regards the 3 rd and 6 th appe ll a nt s, we find no merits i n their appeals and we dismiss them as we are satisfied that their convictions were warranted by the evidence that was before the trial Judge . [63] We also uphold the sentences imposed on them. C. F. R. Mc DEPUTY JUDGE A. M . Banda-Bobo COURT OF APPEAL JUDGE - . ....................... :. •..... ............. .. -""N . A . Sharpe-Phi i COURT OF APPEAL JUDGE J,c....