Nseluka v The People (APPEAL No. 176/2022) [2023] ZMCA 218 (29 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL No. 176/2022 BETWEEN: NCHIMUNYA NSELUKA AND THE PEOPLE CORAM: SIAVWAPA JP, MUZENGA AND CHEMBE JJA On 22 and 29th August 2023 FOR THE APPELLANT: MRS. L. TEMBO-TINDI, LEGAL AID COUNSEL SENIOR FOR THE RESPONDENT MR. D. ZIMBA, DEPUTY CHIEF STATE ADVOCATE JUDGMENT SIAVWAPA, JP delivered the Judgment of the Court Cases referred to: 1. Jabes Mvula v the People SCZAppeal No 131 of 2019 2. Nsofu v The People 1973 ZR 287 3. Jeffrey Godfrey Munalula v The People (1982) ZR 58 Legislation to: referred 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Criminal Procedure Code Chapter 88 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This appeal is against both conviction and sentence handed down by the Honourable Lady Justice C. B. Maka in the High Court at Livingstone. 2.0 BACKGROUND 2.1 The Appellant was charged with one count of Defilement of a child contrary to Section 138(1) of the Penal Code, Chapter of the Laws of Zambia. 2. 2 The particulars of the offence are that on the 1st day of May, 2021, at Livingstone in the Livingstone District of the Southern Province of the Republic of Zambia, the Appellant had unlawful carnal knowledge of a girl namely; Musena Linda under the age of sixteen years. 3.0 THE TRIAL 3.1 The Appellant appeared before the Subordinate court of the first class at Livingstone. He took plea and denied the charge. J2 3.2 The trial Magistrate conducted with a voin1 dire in compliance section 122 of the Juveniles Act before the prosecutrix, who was aged twelve at the time, could give: evidence. 3.3 After hearing the prosecution evidence, the trial Magistrate found the Appellant with a case to answer and placed him on his defence. He gave evidence on oath and called witnesses. I 3.4 At the close of the trial, the trial Magistrate convicted the Appellant and referred the case to the High Court for sentencing. 4.0 SENTENCING 4.1 The learned Judge heard submissio'ns on sentencing from both parties with the Appellant, through Legal Aid Counsel, praying that the conviction be set aside for want of corroboration. 4.2 The learned Judge found corroboration through the evidence of PW3 and the medical report and set;1tenced the Appellant to 18 years imprisonment with hard labour. 5.0 THE APPEAL 5.1 The Appellant filed two grounds of app�al set out as follows; I J3 1 The learned trial Court erred bdth in law and fact by convicting the Appellant in the ablence of corroboration as is by law 2 The learned trial Court erred b th in law and fact by erroneously admitting the statlment of PW3, Febby Musena without following acceptaJle procedure 6.0 ARGUMENTS IN SUPPORT 6.1 The Appellant filed heads of argument in support and argued the two grounds separately beginnin with ground one. In arguing ground one, the Appellant has relied on a number of cases which speak to the fact of co \roboration. Among the cited cases is that of Jabes Mvula v the Pea le1 in which the Supreme Court stated as follows; of the offender, at this decision that try,e Appellant identified "As to the identity arriving positively the evidence access to the victim from he admitted house." J e note the trial court in had been inter alia, on had in f hat the appellant 2018 and that of opportunity, 3rd to 5t1 August, as the offender, relied, that he was the only male person in the 6.2 The Appellant contends that the prosecutrix's evidence was not corroborated by that of PW3 whi! h evidence places the Appellant at the scene thereby rais1 g the presumption of opportunity. In dismissing this evidencf, the Appellant argues J4 that opportunity in the absence of something more, 1s not enough to amount to corroboration. 6.3 In ground two, the Appellant argues that the trial Court should not have admitted PW3's statement to the police because the procedure for its admission was not followed. He has accordingly urged us to expunge it from the Record. 7.0 ARGUMENTS IN OPPOSITION 7 .1 The Respondent filed heads of argument in opposition on 15th August, 2023 and opposed ground one by relying on the medical report which confirmed that the prosecutrix had been defiled. The medical evidence had a cut is that the prosecutrix at 9'Oclock and a fungal infection. 7.2 As regards the identity of the perpetrator, the Respondent has argued that the Appellant did not challenge of the the evidence prosecutrix to the effect that PW3 found them and confronted him to which the Appellant asked for forgiveness and offered PW3 some money. The Respondent also relied on the alleged prosecutrix's demeanour of distress when testifying and breaking down upon seeing the Appellant as further corroboration of her testimony as to the perpetrator of the offence. JS 7 .3 In ground two, the Respondent, concedes that the statement of PW3 cannot be relied upon because it was wrongly admitted by the Court in default of the procedure. However, the Respondent argues that the answers PW3 gave when she was cross-examined on the statement, can be relied upon. That being the case, it is argued that the answers provide further corroboration of the prosecutrix's testimony that the Appellant defiled her. 8.0 OUR ANALYSIS AND DECISION 8.1 The bone of contention in this appeal is whether the conviction is incompetent for want of corroboration. The contention arises from one prosecution witness, PW3, who when called upon to testify after taking oath, said that she knew the prosecutrix because she was her sister's child but that she knew nothing about what happened to the prosecutrix in September 2021. 8.2 The prosecutor then proceeded to ask her questions relating to the statement and she admitted giving a statement to the police which she identified when shown to her. She also acknowledged her signature on the statement and that it was free and voluntary. The witness further acknowledged the contents of the statement as a correct record of what she said to the police. J6 8.3 The prosecutor applied to the Court and there being no objection from the Appellant, the Court admitted the statement as exhibit P2. 8.4 In her Judgment, at page 45 of the Record of Appeal, lines 7 to 12, the trial Magistrate, in relation to PW3 stated as follows; in court and was clearly gave the prosecution a hard time to give her to do so such unwilling had to merely lead "This witness evidence that the prosecutor statement as having had made such a statement that what she told the police which she gave to the police was the truth." and to the police which she admitted her through the 8.5 After lamenting PW3's clear unwillingness to testify, the trial Magistrate went on to state as follows in line 24 of page 45 to line 6 at page 46 of the Record of Appeal; this evidence from PW3 was that of the prosecutrix this fact, as was stated in the case of despite "However, Nsofu above cited, corroboration the truth and that indeed the me that she was telling accused person did on the said date have such opportunity and that her disclosure illusion defence or a false implication in their submissions." about who defiled her was not any by the to have sexual intercourse with as was alleged evidence which convinced the prosecutrix 8.6 From the above extracts from the Judgment of the trial Court, it is clear that the basis of the conviction is the statement which PW3 gave to the police as the corroborating material. J7 9.0 CORROBORATION 9. 1 The question is whether the evidence of PW3 and the medical report constituted corroboration of the prosecutrix's evidence that she was defiled by the Appellant. The learned Judge found that they did. 9. 2 The case of N sofu v The People2 is very clear on the role of corroborative evidence in a criminal case. In that case, the Supreme Court of Zambia defined corroboration in the following words; is independent evidence which tends to confirm that "Corroboration the witness is telling committed and that the truth when she says that the offence was it was the accused who committed it." 9.3 In this appeal, we can safely agree with the trial Court that the medical report is corroboration of the evidence of the prosecutrix to the effect that she was defiled. It however, falls short of confirming that the perpetrator was the Appellant due to the passage of time, four months, between the time the Appellant allegedly defiled her and the time the report was generated. 9.4 The problem is with the trial Court's reliance on a statement that was admitted into evidence contrary to the procedure. This is in light of PW3's refusal to testify upon which the prosecutor examined her on the statement she gave to the J8 police. The Appellant has sugge ted that the prosecution should have invoked the provisiops of section 150 of the Criminal Procedure Code Chapter 8� of the Laws of Zambia. I I 9.5 We have looked at section 150 of t�e Criminal Code Procedure and we think the circumstances of his case do not fall within the purview of that section. In thi case, the witness simply said she knew nothing about / what happened to the prosecutrix. Thereafter, the prosec tor asked her questions on the statement. There is nothing on the record to suggest that she refused to answer any questio s after taking oath which if it were the case, would have entit�ed the trial Court to have her committed to prison under sect10n 150. 9.6 We however, agree that by saying hat she knew nothing, the witness had contradicted her sta ement to the police. This opened the door to the prosecuti n to apply to the Court to treat the witness as hostile. T�ereafter, the contradictory statement should have be shown to the Court to determine if indeed, there was inconsistency l be had ween what the witness said on oath and what was contai d in the statement. 9. 7 The procedure is that if the trial ourt grants the application, then the prosecution can cross examine the witness after which the Court shall not place an reliance on the contents of the statement and so indicate on the record. This also I J9 precludes the trial Court from admitting the inconsistent statement given by a hostile witness. This is the guidance given by the Supreme Court in the case of Jeffrey Godfrey Munalula v the People3. 9.8 In this case, the trial Court did not comply with the procedure laid down in the Munalula case (supra). The trial Court instead took the view that the responses the witness gave to the questions on the statement were admissible and therefore, corroborative of the prosecutrix's testimony. 9. 9 We do not accept the position taken by the trial Court in that regard because quite apart from being an afront to the doctrine of stare decisis, it is tantamount to giving credit to a witness who has discredited himself by giving contradictory positions on an issue 9.10 As held by the trial Court, PW3, did not want to speak the truth to the Court having taken oath, how could she then be trusted on the statement she gave to the police not on oath? This was serious misdirection on the part of the trial Court. We would however, be quick to add that even if the trial Magistrate had complied with the procedure set out earlier in this Judgment, she still ought not to have relied on the statement which the witness had contradicted before Court on oath. JlO . ' 10.0 CONCLUSION 10.1 From the foregoing analysis, it is clear that this appeal has merit because, in the absence of the statement that PW3 gave to the police, the only corroboration available is as to the fact that the prosecutrix was defiled at some point before the tests were conducted as shown by the medical report. However, there is no corroboration of the identity of who the perpetrator is. The testimony of the prosecutrix that it was the Appellant who defiled her lacks corroborative evidence and as such it would be unsafe to convict on it. 10.2 We would also like to express our surprise that the sentencing Judge did not detect the flaw in the procedure adopted by the trial Magistrate. We say so because every sentencing session ought to be treated as a review of the record and only after being satisfied upon the soundness of the procedure and the conviction should the Judge impose the appropriate sentence. 10.3 We therefore, urge their Ladyships and Lordships to pay particular attention to such issues whenever they are presiding over a matter referred to them by the Subordinate Court for sentencing. Jll 10.4 That being said, we quash the conviction and set aside the sentence herein and order that the Appellant be set at liberty forthwith. 1 .................... . ..................... . M. J. SIAVWAPA JUDGE PRESIDENT K. MUZENGA ................ ��·�············· Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J12