Martin Nc'ube v People (APPEAL: 22/2016) [2017] ZMCA 482 (16 February 2017)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL: 22/2016, l + HOLDEN ATNDOLA (Criminal Jurisdiction) THE PEOPLE RESPONDENT APPELLANT Coram: Chisanga, JP, Chashi and Mulongoti, JJA On the 7 thAND 16th of February, 2017. For the Appellant: Ms. E. I. Banda, Senior Legal Aid Counsel For the Respondent: Mr. C. Bako, Chief State Advocate CHISANGA, JP delivered the Judgment of the Court. Cases referred to: 1. Mulonda vs The People (2000)ZR 135 2. Nsofu vs The People (1973) ZR 287 3. Mwaba vs The people (1974) ZR 265 4. Phiri (Macheka) vs The People (1973) ZR 145 5. Phiri vs The· People (1982) ZR 77 6. Musupi vs The People (1978) ZR 271 7. Mwambona vs The People ( 1973) ZR 28 8 . Kaunda vs The People (1990-92) ZR 215 9 , Mwale vs The People, SCZ No. 285 of 2014 10. Chipendeka vs The People (1969) ZR Reprint Page 113. Jl --~~~~~~ ~~~ . • v' . :~~~~~ff ~~ 'd 11. Julius vs R,6 N. R. L. R. 24 12. R vs Mwakanangile (1957) R & N 740 On 18th November 2015, the appellant was found guilty of one count of defilement contrary to section 138(1) of the Penal Code Cap 87 as amended by Act No 15 of 2005 and Act No 2 of 2011 of the Laws of Zambia. Particulars of the offence were that between 15th and 18th July 2015 at Kabwe in the Kabwe District of the Central Province of the Republic of Zambia, the appellant had carnal knowledge of a child. He was sentenced to the mandatory minimum sentence as by section provided. The evidence against the appellant was that he had carnal knowledge of the ..>--. prosecutrix, a girl alleged to be 14 years of age, for three nights, from the 15th . > . A - day: ,af~D.ly ~o r5 ::a,t,l;th<s,-~aJ:i:e.ellant's:J;i.g:m-©:~ This evia. E!~~~ ~ e from ~pw~t~ :-· .. _-r j•_ - _. J,._. .,_..,,.. - ..__r - ..__-r ..__,,,,- ·-· ·-- ··· -· ·- - -~--- prosecutrix. PW3 confirmed escorting the prosecutrix to the appellant's house around 19:00 hours on the 16thday of July 2015, and subsequently the 17thday of July 2015, as revealed by her testimony in the trial Court. Naturally, PW2, the prosecutrix mother was worried that the prosecutrix was spending nights away from home, and enlisted PW4's help in searching for her daughter's whereabouts . It was PW4 who found the prosecutrix and alerted her mother, whereupon the prosecutrix was confronted as to where she had spent the nights she had been away from home. PW3 who was with the prosecutrix, and at whose home the latter was found, revealed that the prosecutrix had been spending nights at the appellant's home . This revelation led to the J2 ;~?;i -~ apprehension of the appellant, who was charged with the subject offence, tried and found guilty as charged. The case was referred to · the High Court for sentencing. Apparently satisfied with the conviction, the High Court Judge inflicted 15 years imprisonment with hard labour on the appellant. Dissatisfied with the conviction, the appellant seeks to assail the judgment on three grounds, which we reproduce verbatim: 1. The learned Court below erred in law and in fact when it convicted the appellant without explaining the mandatory proviso to the said offence. 2. The learned trial Court erred in law and in fact for not ascertaining the age of the alleged victim of the alleged offence. 3. The learned Court below erred in law and fact by convicting the appellant ~- - . ~ - . j)._· . . A· . j)._· ·ir:i.~:tht .. q,_bsence of· c5':>.rro bQrative evideB~e .. q1;., ~vidence -of. ~om~thing more ¥: :. -'t.",. -, ) ;~ - :~ -, ~ -- . . .... _ · - --~ --... ·"&}.-,; - -:~ ~ ... . , • ...;i. · . - - - · .:_"t. .. ,.~:'l)i , -:~ ... ~-- ' _, -. - :..:t" .... ,..,,;. ··=-~:~... . -~- --- • .:.t<-;f.'"Jt . _ ·:_;~, to exclude the danger of false implication. These grounds of appeal are addressed sequentially in the appellant's heads of arguments. We should state here that the appellant is represented by Ms. Banda, while the respondent is represented by Mr. Bako. On the first ground, the attention of the Court is drawn to section 138 (1) of the Penal Code, which enacts the following: "Any person who unlawfully and carnally knows any child commits a felony and is liable, upon conviction, to a term of imprisonment of not less than fifteen years and may be liable to imprisonment for life. J3 .:~.~ t ..,, ..... _r. ~ Provided that it shall be a defence for a person charged with an offence under this section to show that the person had reasonable cause to believe and did in fact believe, that the child against whom the offence was committed was of, or above, the age of sixteen." It is then contended that the use of the word 'shall' imposes a mandatory duty on the trial Court to read and explain the availability of the proviso to an accused person. Support for this argument is derived from Mulonda vs The People 1 where the Supreme Court restated the effect of the proviso in issue in the following terms: "It is a rule of practice that the proviso to section 138 of the Penal Code should be explained to an accused person. Failure to explain the proviso is fatal." In further ..;..@ievelopme_nt of 1lie argument, it -ts· learned - coun·s~;s view th,.at . . ·-essentially, --~xplaiiation of tlie proviso to an unrepresented accused person ~ ,~=--.• ~: ·'!;-": : ~ -:::=.¢': ·-:::-";- : - ~ ,:::_=;,¢': ·:;~ : - ~ .:::_=,~,~~~ : . . >. .:::_=,~ -,;:--s : __ . puts an accused person on notice that he bears the onus to prove that he was of the belief that the girl was above the age of 16, and that the belief was in all the circumstances of the case reasonable. According to learned counsel, the failure to explain the proviso to the accused was especially fatal in that he was young, only 21 years of age, and the prosecutrix of a borderline age. In learned counsel's opinion, the defence, had it been availed to him, would have had high prospects of success . In that connection, reliance is placed on Nsofu vs The People 2 where the Supreme Court said the following: "even where an accused pleads not guilty (as the case in casu), it is desirable that the proviso be explained before plea, but certainly at some early stage in J4 -~~~~- ~-- v' the proceedings, so that he may have the opportunity to direct his cross examination of the prosecution witness to the question of the girl's age." In apparent reference to this decision, it is argued that the appellant failed to properly direct himself during cross examination, to that defence. It is learned counsel's view point that when the trial court observed alterations on the birth record, its suspicion was aroused. That suspicion should have led to the explanation of the proviso to the young and otherwise immature school going appellant. It is maintained that as this was a borderline case, the failure to explain the proviso was fatal. It is sought to emphasise the fatality of said failure by referenc~ t5l_Mwaba vs T~:,._~eople 3 where _ ;f~ Supreme Co~~ stated the " ....... but in a case of a plea of not guilty, such failure is at best from an accused person's point of view an irregularity which may be cured if there has been no prejudice." Learned counsel submits that the incredible claim by the prosecutrix that the accused person had carnal knowledge of her after tying her hands with a necktie was disbelieved, by the trial Court. Further, the evidence revealed that the prosecutrix would leave accused's home, and return in the evening of her own volition. Given such facts, the argument proceeds, the court's failure was fatal. JS In further argument, it is stated that the dispute over the prosecutrix's age, as well as the passage of time should militate against a retrial. The reasons proffered for this argument are that the prosecution and the Court would capitalize on the available evidence, and have a second bite at the cherry. The arguments on ground 2 are that Phiri (Macheka) vs The People 4 establishes the proposition that in offences where the age of the victim is essential, age must be strictly proved. In the present case, according to learned counsel, the age of the victim was not established, especially that the birth record was altered. The trial Court made no occular observation as to the age of the prosecutrix. Additionally, P3, the admission document, was hearsay as to the age o:&(he prosecutrix; :.i&· the best. evidert-h ought to have teen _produced:· ~ -· ~ c~~:"1-;. -,;:---::- ~ ,:_=._,;i;•"'-,;-":- __ · ~ ,:;:.?-~ .. ~...:_ : . ~ ;'~~~ -•~ ~ .:_=._,~ -~ : . - --- :· - . : ·- 'fhat document ·-could not b"e relied -upon as no medical person from Kabwe General Hospital was called to testify about it. It was learned counsel's submission that although a parent can verify the age of a prosecutrix, the altered birth record came from the mother, rendering her evidence flawed and doubtful. She was in fact a witness with her own interest to serve, with a motive to falsify evidence and implicate the accused. Regarding ground three, it is submitted that corroboration of commission of the offence as well as the identity of the offender should be provided in a sexual offence, as per Emmanuel Phiri vs The People5 . In the present case, there was no corroboration as the Court failed to warn itself of the dangers of false implication. The evidence of PW2, the mother of the prosecutrix should have J6 been corroborated as she was a witness with an interest to serve. This argument is premised on Musupi vs The People6 where the Supreme Court stated the following : "The critical question is not whether the witness does in fact have an interest or a purpose of his own to serve but whether he is a witness who because of the category in which he falls or because of the particular circumstances of the case may have a motive to give false evidence." It is learned counsel's contention that the failure to warn itself regarding PW2 was a serious misdirection, detrimental to the appellant. This argument is founded on Mwambona vs The People7 where it was held that: "The evidence of a biased witness should be treated with caution and suspicion and failure to regard it as such is a misdirection on the part of the court which may lead to a conviction being quashed." . A. . . ~ -. . j,A. -~ - . - . :. A . ~ -~=c~ -!;-4:8)~ar1:ect C/~Jl&~;l~~ y~w-that,:tJ!~Z~J :n~ e~iden_~~~.~~~et PW2 ~s "E.~~~'..,,~ !h e prosecu trix stated that she was not examined at the hospital but only given ~ ·- -:.,;-- - -JI"" ·- . - - .:;_=,.~ medicine, in contradiction of PW2 who described the alleged examination and identified the medical report purportedly rendered thereafter. Learned counsel maintains that the motive for PW2 to give false evidence was great and the court should have warned itself accordingly. This view is premised on Kambarage Kaunda vs The People 8 where the Supreme Court stated inter alia that: "Prosecution witnesses who are friends and relatives of the prosecutrix may have a possible interest of their own to serve and should be treated as suspect witnesses. The court should therefore warn itself against the dangers of false implication of the accused, and go further to ensure that the danger has been excluded." J7 --~-=~~~- ., . :~~~~- ~~- ,-' --~~-t- ~:~- ,, In learned counsel's opm10n, PW2, PW3 and PW4 were suspect witnesses whose testimony required corroboration while documents produced in evidence Pl and P2 should have been discarded by the trial court. The State wholeheartedly supports the conviction. In response to the appellant's arguments on ground one, learned counsel concedes that the proviso was not explained to the accused person, as required by the cited cases. He however points out that in Mwaba vs The People3 , the Supreme Court indicated that the irregularity could be cured if no prejudice is inflicted on the accused person as a result. It is learned counsel's argument that the Mwaba case established that if an appellant had not from the time of . J>._. . ...... . -~~ :,,; .. ~.pprehensioi:i,~ sl:?:?.~J?-,. the desi~~\ t<2 :~ly. on the stq,!~~ory clefence,~ tl}.~ ~ou.rt __ can .,..._,~ ·;:,s . . hold that there is no prejudice. In the present case, the argument proceeds, the . ~ ~ . ·- · . -~ -. ··"'·"'l=· -: :~ >. . . J>-. ,j;i, -r - = ·',)i, : - ~ , .:: ~- . . . . - - • - ,;:~~ accused denied having had carnal knowledge of the prosecutrix. Therefore, he may have opted not to direct his cross-examination accordingly even had the proviso been explained to him. It is learned counsel's view that the record does not reveal prejudice. He has urged the Court to hold that the failure to explain the proviso was not fatal in this case. In the alternative, he argues that in the event the omission is found to be fatal, a retrial should be ordered as the omission was at the Court's instance. Regarding the age of the prosecutrix, it is learned counsel's argument that her age was stated by the mother, who indicated that she was born on 1st February, 2001, thus 14 years old at the time. The case of Phiri (Macheka) vs J8 the People4 is prayed in aid, as urgmg the Court to receive the age of a prosecutrix from the parent or the guardian or any other best evidence in the absence of the guardian or parents. Learned counsel has pointed out that in certain instances, where the parent or guardian is incapacitated by factors such as illiteracy, the Court may refer to other best methods available. In the present case, he argues, the mother showed the Court that she was able to tell when her child was born. Although the birth record had alterations, there was no need to resort to that evidence, as the evidence given by the mother regarding the prosecutrix's age was the best that could be given. That therefore, the trial magistrate was satisfied that no evidence that showed any motive on the part of the prosecution witnesses to falsely implicate the appellant. It is argued that the evidence before the trial Court was that the medical report tendered in evidence revealed a finding of sexual intercourse by the Doctor. PW2's testimony that the prosecutrix was examined at the hospital was not an exaggeration. That being the case, there was no need for the trial Magistrate to state in the judgment that he was treating the prosecution witnesses as suspect witnesses. Learned counsel refers to Yokoniya Mwale vs The People9 , where it was stated that: " We ought however, to stress, that these authorities did not establish, nor were they intended to cast in stone, a general proposition that friends and J9 relatives of the deceased, or the victim are always to be treated as witnesses with an interest to serve and whose evidence therefore routinely required corroboration. Were this to be the case, crime that occurs in family environments where no witnesses other than near relatives and friends are present would go unpunished for want of corroborative evidence. Credible available evidence would be rendered insufficient on the technicality of want of independent corroboration. This, in our view, would be to severely circumscribe the criminal justice system by asphyxiating the courts even where the ends of criminal justice are evident. The point in all these authorities is that this category of witnesses may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the accused. Once this is discernable, and 011ly in those circumstances, should the court treat those witnesses in the manner we suggested in the Kambarage case .. A conviction will thus be safe if it is based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or the victim, provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused, or any other interest of their own to serve." was a friend and PW4 an acquaintance did not automatically render them suspect witnesses, especially that they did not know the appellant and no motive to falsely implicate the appellant was revealed on the evidence. In response, learned counsel for the appellant argues that the appellant having been unrepresented and ignorant of the law, it was mandatory for the proviso to be explained to the accused person by the Court. The failure to do so was fatal, as the age of the prosecutrix was disputed. The trial Court observed that the birth record was altered, but glossed over that aspect. The conclusion that the alteration related to the age of the prosecutrix is inevitable. Further that JlO given the alterations on the birth record, the mother of the prosecutrix, PW2, had a motive to falsely implicate the appellant. This aspect distinguishes the present case from that of Phiri, cited by the State. It was further maintained that the disparity in the testimony of PWl and PW2 regarding the examination at the hospital called for collaboration of the alleged medical examination of the prosecutrix at the hospital. We have considered the arguments advanced in support of and against the grounds on which it is proposed to impugn the Judgment of the trial Court. We will deal with grounds 1 and 2 of appeal successively. The arguments advanced on ground one are premised on decisions that ~ cons~e the provis.;-'ft~ection 138 of tite-. Penal Code, as'~ell ;3.s the effect~{ ,~ ... ,:. -;:---5 . failure to explain the proviso to an accused person. We should remark here '~"~ -,;:.-.. : -- _ ~ -~._,:. -;:s : - -- _ ~ -~"..,;'~--5 : -:5:~ '•c;,'S :: _ . that Act No. 2 of 2011, section 138 of the Penal Code was amended by the insertion of the proviso, which had earlier been repealed by Act No. 15 of 2005 . It will be observed that the proviso was virtually re-enacted, thus in the exact same terms as the erstwhile proviso. While therefore the decisions referred to related to the proviso before its repeal, they are nonetheless helpful as the present proviso is in the same terms as the one construed in the decisions referred to. In 1969, Skinner, C. J. as he then was, decided Chipendeka vs The People 12. In that case, the appellant was convicted in the Subordinate Court of the First Class in Lusaka of the offence of defilement of a girl under the age of Jl 1 sixteen years, contrary to section 119 ( 1) of the Penal Code a prov1s1on similar to section 138 of the Penal Code. He was sentenced to two years ' imprisonment. He appealed against both his conviction and sentence. In determining the appeal, Skinner C. J. adverted to Somerhough J's decision in Julius vs R 13where Mr. Justice Somerhough explained the dictum of Evans J . inR vs Phiri by saying: "As I understand his dictum, it goes no further than to say that before a plea of guilty to a charge under 119 is accepted as being unequivocal, the Court to whom a plea of guilty is tendered should at the time, and in the course of ascertaining that the accused understands the nature of the offence to which he is pleading guilty, put the proviso to the accused in simple terms so that the Court may be assured that the accused has not got a defence to the charge before accepting his plea." J.>._ . -:. A . ~ ~lp.9~~ :~~J . _ aJsC?:-,t,~J ~~ e~ - =o approved the dictum of Evans J in Phiri's case, namely that a plea of guilty should not be accepted in a charge under section 119 of the Penal Code, until the effect of the proviso to that section has been explained. Somerhough J went on to say: "Moreover I would add that the fact that this has been done should clearly appear on the record ........... If it seems that the accused could have set up that defence with a prospect of success, however remote, then in my view the effect of the decision of this court in R vs Phiri must be that the conviction cannot stand unless the prisoner was made aware of the defence." Having referred to Somerhough J's dicta, Skinner C. J. observed that in the case with which he was at the time engaged, the proviso to section 119 was not J12 put to the appellant at the time he was initially called upon to plead, nor at the time he changed his plea to one of guilty in the course of the trial. His Lordship observed that the appellant was young, while the girl was aged fourteen . He noted that the girl's aunt said she had passed the puberty stage and it appeared to His Lordship that the appellant could have set up the defence given to him by the proviso with some prospect of success, and as the proviso was not explained to the appellant, he could not allow the conviction to stand. In the Nsofu case, the appellant was convicted on three counts of defilement. The proviso to section 138 of the Penal Code was not explained to him. There was certain evidence which it was argued was corroborative of the evidence of ""-. the three girls but which was not conclusive in itself. The appellant appealed ,-;:=. ... ~ -~~ :·· ~n ~he gi q~~ ~h~t !he~f@\ll'ej~ ~x_pl~in thg:,,~oJi§c{.19 s_ectiofi=. .. ,t-3~:'ifesulte_d i~ ,-;:~ •-,:;~ :· . . . :.>-. . . ""-. . ·. :.;/-_ . . . .>-. . .;1,_ . . . . . the appellant being denied the opportunity to make out the defence which that proviso creates and that the evidence put forward as corroborative was not conclusive and therefore could not be corroboration. It was held inter alia that: (i) In the case of a plea of not guilty the failure to explain to an accused the proviso to section 138 of the Penal Code is at best from his point of view an irregularity which may be cured if there has been no prejudice. (ii) It is a rule of practice that where it appears that an unrepresented accused may be intending to plead guilty to a charge of defilement the proviso to section 138 of the Penal Code should be explained to him. J13 (iii) Even where an accused pleads not guilty, it is desirable that the proviso be explained before plea but certainly at some early stage in the proceedings so that he may have the opportunity to direct his cross examination of the prosecution witnesses to the question of the girl's age. In that case, the trial Magistrate considered the question whether the accused could reasonably believe that the girls defiled were 16 years of age or above. He said: "Having seen the girls myself, I am satisfied that no one can think that any of them could be over sixteen years." On appeal, that observation was deemed sufficient to dispose of the argument -~ - --->· > ~ > · _,.._ .a . the effect of that failure . In Mwaba vs The People 3 , the appellant was convicted of defilement and sentenced to three years imprisonment with hard labour. The record disclosed that the trial magistrate did not at any stage of the proceedings explain to the appellant the statutory defence available to him under the proviso of section 138 of the Penal Code. Hughes J. S, delivering the decision of the Supreme Court, referred to the decision in Nsofu vs The People 2 and reiterated the principles established in that case on the n eed to explain the proviso, and the effect of failure to do so . J14 <~~ ~f;-~-~ ., His Lordship went on to observe that in the case which the Court was considering, the complainant's allegation that she had been raped was not supported by the medical evidence, and that the appellant had largely directed his cross-examination towards establishing consent. The complainant was just under fifteen years of age at the time of the offence and the prosecution adduced evidence which tended to show that she had had sexual intercourse with other men at least seven times before the offence was committed. The appellant, when put on his defence , elected to give sworn testimony, and then, patently told lies claiming that he had never had intercourse with the complainant, thus contradicting his admissions to the police and the earlier conduct of his defence directed at establishing consent. His Lor.q_sh, .considered tb-~ ~-Gestion wh,etger fn~ a.ppellal!,t was1~ejudiced by - - ~ - ,.r::=: .. ,-;i; ·-::-"5- : ·- '~"-~ ·-::-"5- . - ,~-.,~~ ·-::-"5- . - .:::.=c,~ --:;,'5,- : - · ~ -- ~ -~;)/.: ~ "5- - - - : such irregularity. He arrived at the conclusion that his earlier conduct of the defence and admissions to the police would have enabled him to raise the statutory defence if it had been explained to him. It could not therefore be said that he was not prejudiced by the omission to explain the defence available to him under the proviso. The appeal was allowed and the sentence quashed. In Mulonda vs The People 1 thirty years later, the Supreme Court was called upon to decide a case in which the proviso had not been explained to the accused. The facts were that the appellant pleaded guilty to a charge of defilement of a girl under the age of 16 years contrary to section 138(1) of the J15 Penal Code Cap 87 of the Laws of Zambia. On appeal, it was held inter alia that: 1. It is a rule of practice that the proviso to section 138 of the Penal Code should be explained to an accused person. Failure to explain the proviso is fatal. 2. The age of the victim in defilement cases is crucial and a very essential ingredient of the charge. The Supreme Court endorsed the decisions in the Chipendeka and Mwaba cases, and went on to observe that the proviso was not explained to the appellant. The Court was of the opinion that the facts revealed that the appellant had a meritorious statutory defence which was not explained as - ~ -- . ·:.i>--- · :_J,._ · ~ - - - JA_ - was so fatal that the Court did not even consider to order a retrial. We accept the argument that in the present case, the proviso to section 138 of the Penal Code was not explained to the appellant, who was unrepresented at the time. The cited cases establish that the proviso to section 138 of the Penal Code must be explained to an accused person. In the Mulonda case, the Supreme Court described the failure to explain the proviso as a fatality. Needless to say, this Court is bound by decisions of the Supreme Court. Where a later decision conflicts or qualities with earlier ones, the later decision binds the Court of Appeal. The precise words of Sakala, C. J. as he then was in the Mulonda case were as follows, at page 139: J16 "Failure to explain the proviso on the facts of this case was so fatal that we did not even consider to order a retrial." These words imply that the effect of failure to explain the proviso depends on the circumstances of a particular case. In some instances, the facts may be such that the failure to explain the proviso may not be so fatal as to militate against a retrial. The Supreme Court having endorsed the Chipendeka and Mwabacases supra, it cannot be said the view expressed in the Mulonda case does away with the principle that the failure to explain the statutory defence to ) an accused person is an irregularity which may be cured if no prejudice is visited on an accused person. We are therefore obliged to consider whether prejudice was inflicted on the appellant as a result of the failure to explain the >· > ~ -> - >· > · The prosecutrix in this case was of a borderline age. She used to go to the appellant's home, to be defiled. That she was carnally known by the appellant is borne out by the evidence on record, and the trial magistrate cannot be faulted in so finding. That she was defiled is confirmed by the evidence of PWl and, PW3. The appellant confers that the prosecutrix spent at least, one night in his home. So did his brother. PW3 said she escorted the prosecutrix to the appellant's home on two instances. Consent to be carnally known is manifest on the evidence. The story that she would be tied by the appellant ordering the act was in our view correctly discounted. The appellant himself was a young man. The facts of this case are reminiscent of the Chipendeka case supra, J17 where the appellant was young and the girl aged 14. As earlier noted Skinner C. J. was of the view that the appellant could have set up the defence given to him by the proviso with some prospect of success. This view was an apparent endorsement of Somerhough's dicta in Mwakanangile supra where he said that if it seemed that the accused could have set up that defence with a prospect of success, however remote, then the conviction could not stand unless the prisoner was made aware of the defence. Likewise in the present case. The girl, having voluntarily sought sexual connection with the appellant, can be said to have had a measure of sexual maturity. The age of 14 is a borderline one as properly conceded by learned counsel for the respondent. While consent is not a defence to a charge of . ..,._. . ..,._. . ·.:. Jt-. . ..,._. . . ->-. ~ :i~~ . Mil~men t . is -~y.~'ve . a bead ng: -w½icie · the pri ~o-~ .,,,. .,,,. - -- - ··-· - - - .,,,. - .,,,. : ngt _explcrtn;gd~ :~~Il .,,,. ¥ •- :.i'<.";;¢- accused person, as seen from the Chipendeka case. The trial magistrate made no ocular observation regarding the age of the prosecutrix. On the facts of this case, it cannot be said that the appellant could not have set up the defence availed by the proviso with some prospect of success, had it been explained to him. We do not agree with the argument that as the appellant did not pursue a line of defence consistent with the proviso, it cannot be said he was prejudiced. Neither are we persuaded that the Mwaba case suggests that prejudice will be eliminated if an accused person has not pursued a defence consistent with the proviso all along. In our considered view, that case was decided on its own facts, the Court holding that as the appellant had all along admitted carnally knowing the prosecutrix with her consent to the police and in cross J18 examination of the prosecution witnesses it could not be said he had not been prejudiced by the failure to explain the statutory defence available to him. Learned counsel's argument, if accepted, would amount to requ1nng an accused person who is ignorant of the proviso, to admit the offence upon apprehension. This approach would negate the right to remam silent upon being questioned by the police. As will be observed, the other cases cited do not establish that an accused person should direct cross examination at consensual sexual connection for the proviso to be available to him. We thus reject the argument advanced by the State. On this ground alone, this appeal is bound to succeed. _>_We will a~dress .. J~tound two_ purely.);>ecause we wish )I;>· address the eff~t of the r ,;_~~ -~1ii~r~ -to r ~a-=-crre~~ .the alt~r~tt~';~'d~~ the rb{ITtf -~d~d produ1 ~tf!'b''f the - .;-=.~ prosecutrix's mother during trial. The prosecution evidence was that the prosecutrix was 14 years old, as earlier noted and a birth record was produced in evidence in support of that assertion. The trial magistrate observed that there were alterations on the birth record but did not address that issue in his judgment. We accept the respondent's argument that the age of a prosecutrix should be received from the parent or guardian or any other best evidence in the absence of the guardian or parents. We note however that it was the mother of the prosecutrix, PW2 who produced the altered birth record. It was necessary therefore to explain why and when the alteration was made on the birth record to allay any suspicions that were likely to, and did arise on that J19 alteration. The age of a prosecutrix in a defilement case being crucial and a very essential ingredient as restated in the Mulonda case supra, the failure to address the alterations on the birth record produced by PW2 was a serious omission, and had the effect of raising doubt on the age of the prosecutrix. The questions that linger on this birth record are when, why and by who that record was altered. These unaddressed questions regarding the evidence of the prosecutrix's age render the evidence unsatisfactory and give rise to reasonable doubt on that aspect of the case. We will not address ground three as it has been rendered otiose by the view we have taken on grounds one and two of the appeal. The conviction of the appellant is unsustainable due to the failure to explain the proviso to him, as ->-. ~ .;:=..~ -::;~~_If __ as_ tlre ,f~i~~~o ----~~ab'li~_b ,JJ:1-:;-~9-~e_ of_ th-e -F.f.~S-!'5?~r~ ~eyo~1 .. r~~i~ajle_ ->-. . ,_>- - .,. A . j/4_ . ....... ,~~,q; -• doubt. We therefore quash the conviction herein, and set aside the sentence. We will not order a retrial as the prosecution will have a second bite at the cherry regarding the age of the prosecutrix. It should be kept in view that a retrial is not ordered to give opportunity to the State to rectify shortcomings in the evidence led. The appellant is thus set at liberty forthwith. ··············· .. ··~·~· ................ . F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL J20 J. Z. MULONGOTI COURT OF APPEAL JUDGE - -.>· a~ -•-~ ..,. - J21