Mutula and Anor v People (Appeal 20 of 1988) [1988] ZMSC 79 (25 October 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal Nos. 20-21 Of 1988 HOLDEN AT LUSAKA ’ ■ ; in the trialj. -3 trial, . (Criminal Jurisdiction) ■ >'< • q - Mr Phi ■ vi? a. -, jijii.c properly indLcateJ ■that ha wcwld-r; ’ ('iirirnforn! tiw** t- stc 1 ‘.ant* fin*' th” '-nd*M ; ••• > '■■ ERING MUTULA 1st Appellant ' JUBECK MUSONDA ' •• ’ ; - y ~ ■n ■: r c THE PEOPLE1 • nt, It Respondent hy < 11 •. -.’v ■ r;< • v- tlm h* identifia CORAM: Ngulube, D. C. J., Gardner, J. S. and Chaila, AJ. S. -■ ••■•■■ ,t '■>. -n?'. HU •<■•■.. » at hi posses; . ... 25th October, 1988 > - • •. •> ‘h <-• •' . Mr. Sakai a. Director Legal Aid, tha^appella^ yf > .1: r' ... . .i. • £’< ..- , Mr. G. S. Phiri, Senior State Advocate, .fjpr ,the Respondent ’■■■ -■ : = < • J UDG M-E^N-W^.^nt w;h also • * **,»..*- 11' t ♦ ■,*• Ngulube, D. C. J. delivered the judgment-of’ the'-’court-tifwithout * .:•-• •:c-.’tc?:. is ne. such evidence- For that r^a.5O> The appellants were tried and convicted on’a charge’of4aggravatec robbery and each was sentenced to undergo fifteen years imprisonment wi hard labour. The particulars of the offence were to the effect that oi 9th March, 1986, at Lusaka, the appellants robbed PH.1 of the property listed in the charge. The evidence established quite conclusively tha" on the day in question in the evening the complainant was walking near the railway line when two men accosted him, assaulted him very badlyai took his property. The prosecution evidence was that within minutes o the robbery, some vigilantes at a tavern apprehended the appellants an- took them to the police^ It was:alleged that"’the first appellant was possession of a suit and a pair of shoes stolen 'from the complainant’a few moments earlier. i;, / ■: "Ci; unr^iLaol ft&ce reference, then hlc. iitatewont tr ;^y In the course of the trial'theprosecution 'tendered in7evidence warn and caution statements which the appellants had made. These were objected to but they were admitted after a trial-within-a trial. — Thes statements-which were not relied upon by the'learned trial judge in he judgment-were admitted in evidence on what we consider to have been an . r : c of the roie uhsl .»orso'ia: i / rJ. • i «,scrol lant tried tf» sell th'; ■ 2/............ inadequate j : J2 : ; inadequate ruling on the issues raised in the trialrwithln-a trial. We have no difficulty in excluding those statements and indeed Mr Phi ri, the Senior State Advocate has quite properly indicatedrthat he would-not press for their inclusion. It follows, therefore that the case must be decided without taking into account those statements?,} by any against the other portions or ■ ■ In relation to the second appellant? it^has^been’’conceded'by Mr. Phiri that the only evidence against him was'that'he was Identified by the complainant at an identification parade.' He was not in ppssessior of any stolen property and we agree with' Mr.1 Sakala.:that the1?: circumstances of the case were such that the possibility of an honest bu' mistaken identification was very real in this case. The event occured at night. It was traumatic and the complainant was assaulted viciously. Despite, therefore, the fact that the second appellant was also identified at a parade, we agree with Mr.- Sakala that it would- be unsafe to allow a conviction to stand based solely on identification: without some supporting evidence. There is no such evidence. For that reason, the appeal of the second appellant Jubeck Musonda is allowed; the conviction quashed and the sentence set aside. With regard to the first appellant, not only was he identified by' the\comp1aInant' but such identification was supported by the findingrin his"possession of. property which had been stolen from the complainant less than an hour • previously. Mr. Sakala the learned Director of Legal Aid has argued that the evidence as to the finding of the property in the possession of this appellant was unreliable, having comefrom PW.2?whom we should regard as unreliable because we had stated in court that he had apprehended only one person when in fact PW.7 the police officer who received the report had stated that PW.2 and other vigilantes brought two persons. The argument is that since PW.2 may have been unreliable in the respect to which we have made reference, then his statement that he found the property with the first appellant should not be accepted unless it is corroborated. In answer to these statements, Mr. Phiri . . argued to the effect that there was nothing on the record to show that PW.2's evidence on this particular point was in any way weak. It was pointed out that PW.7 talked of a group of vigilantes having brought two suspects whereas PW.2 had spoken of the role that he personally played in the matter when this appellant tried to sell the property to 3/.............. him.... of t$s& ' • . him and when PW.2 took charge of the property until it was handed over fi —— : J3 'C'.:" to PW.7. We have considered the arguments on this point and we do have to agree with Mr. Phiri that the evidence that this appellant was in possession of the complainant's property was in no way weakened by any of the criticisms which may be levelled against the other portions of his evidence. Such possession did provide the necessary support for the identification evidence. It follows from what we have said that the appeal of this appellant cannot succeed. We dismiss his appeal against conviction. There can, of course, be no appeal against the mandatory sentence. V"''''"’'• . . • ' '■ /MMt -1 for tn* respon M M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE ■ " convicted jof —■ T.: Gardner, f SUPREME COURT JUDGE wi * ! ■ ■ « : ■■ In spp&H^ts robbed Pk;.i of the property, jpt- evidence csVabiAshed guite conclusively .th*t in th* av^ning the complainant W: mm. S.'rChalla Mr y .p ACTING SUPREME COURT JUDGE • ■ -■ m .. ijim .?•; '.'f - * — - apprehended Hants ' ' ■ 'i fJUjiKd that, the tipp.ellant was i ef 5fn!«n frc^ th* complainant- a ? ■" ■■ th* the ion tendered in evidence had These wr^ after a triM-KirhiMr trial, kksc " :J " ■"’■•” " : ■i.-. -r-r 'toon by the learned trial jj-dge- in her cn what consider m ij.sve been an 2/..... ,. l‘'iude<;i.;ate