Nalishebo Muyambango and Anor v The People (Appeal No . 155,156/2022) [2024] ZMCA 340 (18 December 2024)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No . 155,156/2022 HOLDEN AT LUSAKA and NDOLA (Crimina l Jurisdiction) BETWEEN: NALISHEBO MUYAMBANGO MULUMEMUI WAMULUME AND THE PEOPLE 1 st APPELLANT 2 ND APPELLANT ox 50067, RESPONDENT CORAM : Mchenga DJP, Muzenga and Chembe JJA ON: 14 t h June 2023 and 18 th December 2024 For the Appellant: K. Chishala Bwalya, Legal Aid Counsel, Legal Aid Board For the Respondent : N . Munkombwe, State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: l . Muwowo v . The People [1980] Z . R . 201 2 . Chigowe v . The People [1977] Z . R . Legislation referred to 1. The Penal Code , Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION J2 1.1 The appellants appeared before the High Court jointly charged with one count of the of fence of murder contrary to Section 200 of the Penal Code. 1 . 2 They both denied the charge and the matter proceeded to trial. 1.3 At the end of the tria l , the appellants were convicted as charged , and condemned to suffer capita l punishment. 1.4 They have both appealed against their convictions . 2.0 CASE BEFORE THE TRIAL JUDGE 2 . 1 On 24 th July 2016 , around 21:00 hours , Mwiya Kakungu was shot dead while at his kraal in Lishekana Village in Senanga . At the time he was shot , he was alone and no one saw the shooter . 2.2 His ki l ling was discovered when his relatives rushed to the kraal after hearing the gunshot . On getting there , they found Mwiya Kakungu alive but he died moments later . 2.3 The fact that Mwiya Kakungu died as a result of being J3 shoot was confirmed by a report i ssued by a patholog i st after a post - mortem examination of his body . 2.4 The evidence incriminating the appellants were confession statements they made to the po l ice following their arrest . In those statements , the appellants admitted that the 1 s t appellant shot Mwiya Kakungu after being led to his kraal by the 2 nd appellant . 2 . 5 These confession statements were admitted into evidence after a tria l within a trial . 3 . 0 GROUNDS OF APPEAL AND ARGUMENTS BY THE PARTIES 3.1 One of the grounds in support of this appeal is that the confession statements were wrong l y admitted i nto evidence by the trial Judge. 3.2 In support of this ground of appeal , it was submitted that the trial Judge erred when he disbelieved the appellants ' narration surrounding the making of the statements , on the ground that they failed to produce medical reports to prove that they had been beaten . J4 3 . 3 The cases of Muwowo v. The People1 and Chigowe v . The People2 , were referred to and it was submitted that since the burden of proof lay on the prosecution , it was wrong to demand that the appellants produce medical reports . The demand , in effect , shifted the burden of proof to the appellants . 3.4 In response to this ground of appeal , it was submitted that scrutiny of the ruling following the trial within the trial , shows that the trial Judge was alive of the fact that the prosecution bore the burden of proof . 3.5 It was also submitted that the trial Judge was entitled to disbelieve the appellants ' story on the basis that they did not produce medical reports to support their claims that they were beaten , because the issue was not raised when prosecution witnesses gave evidence. 4.0 CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT 4.1 As earlier indicated , the case against the appellants wholly rests on the confession statements they made to the police following their arrests. Our examination of the record of proceedings establishes JS that during the trial , there was a misapprehension of the procedure for the introduction of the confession statements into evidence. 4.2 The procedure for the introduction of a confession statement during a trial is the same as that for introducing any other exhibit. A prosecutor seeking to introduce a confession statement into evidence , must first get the witness who has been lined up to produce the statement , to describe how that witness is able to identify the statement . 4. 3 After that description , the witness must then proceed to identify the statement. Where the identification is satisfactory , the court assigns an identification number (ID number) to the statement. 4.4 It is only after an identification number has been assigned to the statement , that the prosecutor can ask the witness whether that witness intends to produce the statement . 4 . 5 On the indication that witness intends to produce the statement , the judge or magistrate must ask counsel for the accused person , or the accused person , where such an accused person is not J6 represented , if there is a n y obj e ction to the production of the statement . 4.6 Shou ld the reasons for objecting to the production of the statement , be those that warrant the holding of a trial within a trial , the judge or magistrate must direct the holding of a trial within a trial , unless the prosecutor indicates that the intention to produce the statement , has been abandoned . 4 . 7 In this case , the trial Judge ruled that a trial within the trial wo u ld be conducted before the contested statements had been identified , and an attempt to int r oduce them into evidence had been made . Procedurally , this was wrong , and it led to confusion that tainted the trial within the trial . 4 . 8 Since the statements were not identified before the trial Judge ordered the trial within the trial , he allowed the statements to be identified and introduced i nto evidence by the arresting officer , during the trial within the trial . The trial Judge then allowed the a rresting officer to produce them during the trial within the trial . This was equally wrong . J7 4.9 This was wrong because the purpose of the trial within the trial was to determine whether the statements should be admitted into evidence . That being the case , the court could have only determined the admissibility of the statements at the end of the trial within the trial . 4.lO As it turned out , the premature admission of the statements into evidence had the effect of prejudicing the trial Judge ' s consideration of whether he should admit them . 4.ll in his ruling at the end of trial within the trial , the trial Judge opined as follows , 'Moreover a thorough consideration of the warn and caution statements recorded from both Al and A2 which were done at different times indicates consistencies in the way they explained the events leading up to the death of the deceased and this has further convinced me that these statements were recorded voluntarily because I find it impossible to believe two reasonable people would give consistent statements in an environment that was not conducive or after JS being tortured to the extent that the Accused persons claimed they were.' 4.12 A judge or magistrate conducting a trial within a trial , is not supposed to allow evidence of the contents of the confession statement to be given during the process . This is to avoid the judge or magistrate being prejudiced . 4.13 For the same reason , a judge or magistrate is not supposed to examine and use the contents of the confession statement to determine its admissibility . This is because in addition to the danger of being prejudiced , at that point , the statement has not been admitted into evidence. 4.14 The contents of such a statement can only be used after the statement has been admitted into evidence , at the end of the trial within a trial , following a finding that it was made ' freely and voluntarily '. 4.15 It is our view that in as much as the trial Judge rightly came to the conclusion that there was need to hold a trial within a trial, the procedure he deployed in conducting that trial was wrong and i t prejudiced the appellants . J9 4.16 In view of or finding that the confessions statements were improperly admitted into evidence , it is our view that this appeal should be determined to their exclusion . 4.17 As previously pointed out , the appellants ' convictions wholly rested on the confession statements . In the absence of those statements , the case against them collapses as there is no other evidence incriminating them . 5. 0 VERDICT 5.1 Having found that the confession statements where not properly admitted into evidence , we find that appellants ' convictions are unsafe . We set the convictions aside and acquit them hlli!a G DEC 202\ K . Muz ga COURT OF APPEAL JUDGE CRIMINAL REGISTRY 2 .............. fl.g(!Y).k.g ............ . Y . Chembe COURT OF APPEAL JUDGE