Mula Sialuti v The People [2020] ZMCA 178 (20 November 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No.74/2020 BETWEEN: MULA SIALUTI AND THE PEOPLE :± ? c. APPELLANT 120 NOV 2020 i.. REGISTRY I OX 50067 ei~ E SPONDENT R CORAN: Mchenga DJP, Makungu and Ngulube, JJA On 10th November 2020 and 18" November 2020 For the Appellant: C. Chavula, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: M. Chipanta-Mwansa, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. Zefa Goba v The People [1966] Z. R. 113 2. Trampa Moonga v The People CAZ Appeal No. 19/2018 3. Ackson Mwape v The People SCZ Appeal No. 132/2010 4. Sikota Wina and Princes Nakatindi Wina v The People [1995-97] Z. R. 137 5. Nachitumbi and Another v The People [1975] Z. R. 285 6. Macheka Phiri v The People [1973] Z. R. 145 (cid:9) Legislation referred to: J2 l. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Juveniles Act, Chapter 53 of the Laws of Zambia 3. The Court of Appeal Act, Act No. 7 of 2016 1.0. Introduction 1.1. The appellant, appeared before the Subordinate Court (Hon. Z. Daka), charged with the offence of defilement of a child, contrary to section 138(1) of the Penal Code. 1.2. He denied the charge and the matter proceeded to trial. At the end of that trial, he was convicted and committed to the High Court for sentencing. 1.3. In the High Court (Maka-Phiri J.), he was sentenced to 35 years imprisonment with hard labour. 1.4. Though the appellant has appealed against both his conviction and the sentence imposed on him, the issue that this appeal raises, in our view, is whether his conviction can stand, given that no voir dire was conducted before the prosecutrix was allowed to testify. 2. 0. Background J3 2.1. The circumstances surrounding this appeal are not complex. On is: November 2018, at about 08:00 hours, the prosecutrix, who was returning from visiting her grandmother in Sinazeze, was joined by the appellant. He told her, that her grandmother, had instructed him to take her back to her mother's village. 2.2. The prosecutrix got on the appellant's bicycle, but instead of taking her to her mother's village, he took her into the bush where he forcibly had sexual intercourse with her. 2.3. Soon after the attack, the prosecutrix reported the incident to her mother. On the same day, her mother took her to a police station where she was issued with a medical report. She was only examined by a doctor, the following day. 2.4. During the trial, the medical report, which confirmed that the prosecutrix had been defiled was produced. The prosecutrix's 'under five J4 card', which gave her date of birth as 14th December 2004, was also produced. 2.5. In his defence, the appellant did not deny having had sexual intercourse with the prosecutrix on the material date. His position was that it was consensual, and that prior to the act, the prosecutrix told him that she was 17 years old. 3. O. Legal issues raised by the appeal 3.1. Mr. Chavula has submitted that testimony of the prosecutrix must be discounted because the procedure set out in section 122 (1) of the Juveniles Act, for the reception of evidence from persons below the age of 14 years, was not followed. He has referred to the cases of Zefa Goba v The People' and Trainpa Moonga v The People 2 , in support of the proposition. 3.2. He has also submitted that since the case against the appellant was anchored on the prosecutrix's inadmissible evidence, with the exclusion of that witness' testimony, the case against him collapses and the conviction cannot stand. J5 3.3. In response, Mrs Chipanta-Mwansa has conceded that the prosecutrix testimony should not have been received without the conduct of a voir dire. But she has argued that even if the prosecutrix's testimony is expunged, the conviction can still stand, because the remainder of the evidence does prove the charge. She has referred to the case of Ackson Mwape v The People3 , in support of the proposition that we can uphold the conviction if the remainder of the evidence supports the charge. 3.4. In the alternative, Mrs. Chipanta-Mwansa has argued that should the court find that the charge cannot stand because of the exclusion of the prosecutrix's testimony, a retrial should be ordered. She referred to the cases Sikota Wina and Princess Nakatini. Wina v The People and Nachitumbi and Another v The People', in support of that proposition. J6 3.5. Further, she has submitted that ordering a retrial is in the interest of justice and will not prejudice the appellant in any way. 4. 0. Court' s decision on whether the conviction can stand 4.1. First of all, as correctly pointed out by Mr. Chavula and rightly conceded by Mrs. Chipanta- Mwansa, the testimony of the prosecutrix should not have been received without the conduct of a voir dire. 4.2. Since the prosecutrix was below the age of 14 years at the time she came to testify, section 122 of the Juveniles Act, has made it mandatory that she should have been subjected to a voir dire before being allowed to testify. 4.3. It is through the voir dire that the trial magistrate would have determined her competence to testify. Such competency would have been dependent on the court being satisfied that she was possessed of sufficient intelligence to justify her giving evidence on oath and that she understood the duty of speaking the truth. J7 4.4. We have examined the record of proceedings and note that there was no attempt to ascertain the prosecutrix's age before she was allowed to take oath. That was a very serious misdirection. 4.5. Since the competence of a child to testify is dependent on that child's age, because if a child is below the age of 14 years, a voir dire must be conducted before she testifies, it is crucial that whenever a child is put up as a witness, the court ascertains his or her age. In the case of Macheka Phiri v The People6, the Supreme Court pointed out the following, on the approach, when proof of age is an issue, during a trial: 'it is not acceptable simply for a prosecutrix to state her age; this can be no more than a statement as to her belief as to her age. Age should be proved by one of the parents or by whatever other best evidence is available.' 4.6. Even though that case was concerned with age, as an ingredient of the offence, it is our view that the same approach should be adopted when age J8 determines the eligibility or competence of a child to testify. 4.7. In this case, the trial magistrate should not have just accepted the prosecutrix's age as 14 years on the basis of what she said when she took the oath. Prior to the taking of the oath, she should have enquired from either her mother or the prosecutor. 4.8. As it turned out, moments after the prosecutrix testified, the mother produced an under-five card which gave the prosecutrix age. If the magistrate had made the necessary inquiry, it would have become apparent that the prosecutrix was not 14 years old and a voir dire was required before she could testify. 4.9. Coming to whether the charge against the appellant can stand, in the absence of the prosecutrix's evidence, we do not think it is the case. The evidence incriminating the appellant was wholly given by the prosecutrix and in the absence of that evidence, the fact J9 that the appellant committed the offence, cannot be proved to the required standard. 4.10. That being the case, we accept Mrs. Chipanta- Mwansa's alternative submission, that this is an appropriate case to order a retrial. We do not think that the appellant will be prejudiced in any way if we order a retrial. We find that it will be in the interests of justice that such an order is made. 5.0. Verdict 5.1. The appellant's conviction for the offence of defilement is set aside and the sentence is quashed. Further, we invoke the provisions of section 16 of the Court of Appeal Act and order that the case be remitted back to the Subordinate Court, for 'rial . F. R. chenTa DEPUTY JUDGE PRESID C. K. Makungu (cid:9) COURT OF APPEAL JUDGE P. C. M. Ngulube COURT OF APPEAL JUDGE (cid:9)