Oscar Muchimba V The People (Appeal 141 of 2021) [2022] ZMCA 74 (23 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 141/2021 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: OSCAR MUCHIMBA APPELLANT AND 1 > ...... THE PEOPLE ' T S RESPONDENT CORAM: Mchenga DJP, Makungu and Muzenga JJA On 18th May, 2022 and 23rd September, 2022 For the Appellant: Mr. K. Katazo - Senior Legal Counsel, Legal Aid Board For the Respondent: Mrs. C. Mungochi-Lungu - State Advocate, National Prosecution Authority JUDGMENT MUZENGA, JA, delivered the Judgment of the Court. f Cases referred to: 1. Nyambe v The People (1987) ZR 228 (CA) 2. Tembo v The People (19872) ZR 220 3. Saluwema v The People (1965) ZR 4 4. Dorothy Mutale and Richard Phiri v The People (1997) S. J. 51 5. Saidi Banda v The People - SCZ Appeal No. 30 of 2015 J2 6. Kaluba Ilunga and Another v The People (1981) ZR 102 7. Elias Kunda v The People (1980) ZR 100 8. George Nswana v The People (1988 - 1989) ZR 174 9. Gift Nkaza v The People - SCZ Selected Judgment No. 31 of 10. Humphrey Daka v The People - SCZ Appeal No. 59 of 2021 Legislation referred to: 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 The appellant was charged with one count of aggravated robbery contrary to Section 294 (1) and (2) of the Penal Code1. The particulars of the offence alleged that on 23rd January, 2020 at Choma in the Choma District of Southern Province of the Republic of Zambia, the appellant jointly and whilst acting together with Mazuba Hanjola and whilst armed with a metal bar and a knife did steal a television set, a cell phone, 2 remote controls, 3 pairs of shoes, 2 bags, 1 men's suit, a duvet, a suitcase, a laptop bag, 3 pairs of hammers and 3 screwdrivers from Joseph Lungu altogether valued at K6,650.00 the property of Joseph Lungu and at or immediately after the time of J3 stealing used or threatened to use actual violence to Joseph Lungu in order to obtain or retain the thing stolen or prevent or overcome resistance to its being stolen or retained. 1.2 The appellant was subsequently convicted and condemned to serve 40 years imprisonment with hard labour while the co-accused was acquitted by the High Court (Mr. Justice K. Mulife). 2 .0 EVIDENCE IN THE COURT BELOW 2.1 The state secured the appellant's conviction through the evidence of five witnesses. The first witness Joseph Lungu (PW1), testified that on 23rd January, 2020 between 20:30 hours and 21:00 hours, he went home from Courtesy bar where he had drunk 6 bottles of Mosi Lager Beer. He went to bed and hours later, he was awakened by a loud bang on his gate. He opened the gate to inspect the source of the bang, whereupon he was struck with a metal bar on top of his left eye . by a stranger. He fell to the ground, arose and struggled with the assailant who was also armed with a knife. 2.2 In his continued testimony, he told the trial court that he held onto the knife and the assailant inflicted a deep cut on his right hand using the said knife. He managed to escape into his neighbour's premises J4 shouting for help. His neighbour was not present though his wife peeped through the window but did not come out to help. He hid in his neighbour's toilet situated outside the house as his assailants ransacked his house. After a while, he decided to peep at his house through his gate where he was able to see the man who hit him with a metal bar and the other man ferrying property from the house. 2.3 His assailants called him to come back as the thieves had left, but he continued to hide as he was observing them from his hiding place which had enough light. After the robbers left, he went back to his house. While there, he discovered that he was bleeding a lot and could not call for help as his phone had been stolen. It was his testimony that the following morning when he woke up, he found a lot of people who had gathered at his house having been attracted by blood stains. Later, his wife and friend, Mr. Ngoma arrived and took him to the hospital where he received treatment. He later reported the matter to the police where he was given a medical report form. 2.4 A few days later, his wife received a call from the police requesting for PW1 to go to the police station to help in the identification of some items. He went to the police station and was able to identify five bags J5 and one plasma television set to be part of his property which had been stolen. He told the police that he was capable of identifying his assailant, however, he could not identify the other person who had gotten into his house to retrieve the property. 2.5 In his continued testimony, he told the trial court that while at the police station, he attended an identification parade where he identified the appellant's co-accused as the one who had assaulted him on the fateful night. 2.6 Under cross-examination, PW1 stated that he saw his assailant for the first time that fateful night and that he did not state his assailant's unique features to the police or the court. He stated that before the attack, he was in a semi-intoxicated state and that before the identification parade, he saw the accused in the police cell. 2.7 A summary of the evidence of PW2 Dexter Muchibelo, a security guard under the employ of G3 Security Company was that on the night of 24th January, 2020 at Zambia Railways in Choma, after taking over from another security officer, he went round inspecting the premises. In the waiting room, he saw a plasma television set and when he inquired about the owner, no one responded. He told the trial court J6 that at around 23:30 hours, he went back to the waiting room in the company of the Zambia Railways Police Station Inspector to check on the television. They found the appellant sleeping beside the television and other bags. They questioned him about the property and he declared that it was his. 2.8 PW2 told the trial court that the property was collected and the two security men asked the appellant to accompany them to the enquiries office. The appellant was carrying the television set whereas PW2 was carrying the bags. Along the way, the appellant threw away the television set and fled. PW2 gave chase and caught up with him. The appellant apologised and indicated that he had escaped from prison. It was his testimony that the appellant also told him that the television set and the bags were his property, which he had left in Mapanza before being taken to prison. 2.9 Under-cross examination, PW2 stated that there were no security cameras at Choma Railway Station and that he did not see the appellant come to the waiting room with the said property. He refuted the suggestions that the property was not for the appellant and that he wanted to steal them during the material night. J7 2.10 Detective Inspector Kelvin Siacholi testified as PW3. He told the trial court that he was stationed at Choma Central Police Station and that he conducted an identification parade in this matter on 5th February, 2020. That during the parade, PW1 identified the appellants co­ accused as one of the persons who assaulted and robbed him. He testified that he had lined up ten male persons of the same height, body stature and complexion, including the appellant and A2 on the identification parade. He informed the appellant and A2 about their right to call a lawyer, relative or friend and to choose positions where they would stand and the clothes that they wanted to put on among other things. He told the trial court that they did not object to the conduct of the parade. That A2 was identified by PW1 on three separate occasions and from different positions to be the assailant. 2.11 PW3 told the trial court that he took photographs of the identification parade but which could not be tendered into evidence as the scenes of crime officer indicated that the computer system that should have been used to develop the same was faulty. 2.12 When cross-examined, PW3 stated that he was not aware that PW1 saw the appellant from the police cells prior to the identification J8 parade. He denied the assertion that the appellant complained to him that the parade was not fair as PW1 had seen him earlier. 2.13 Chief Inspector Ben Njobvu a Correction Officer under the Zambia Correctional Services at Choma Correctional Facility, gave evidence as PW4. He told the court that the appellant escaped from his custody on 22nd January, 2020 at the Choma facility and that the second accused had been a serving prisoner at the Choma Correctional Facility and was being kept at Pump House No. 2 situated outside the Correctional Facility which is reserved for trustee prisoners. PW4 led evidence to show that indeed the accused persons were serving prisoners. 2.14 PW5 was Detective Sergeant Kenneth Shobo Mwangala, the arresting officer. His evidence was an account of the evidence of PW1, PW2, PW3 and PW4 and we shall not reproduce the same. 2.15 Under cross-examination, PW5 stated that he did not attend the identification parade and thus he could not testify on how it was conducted. He admitted that he did not receive any escape report concerning the second accused and that he did not lift any fingerprints from the crime scene. J9 2.16 This marked the end of the prosecution case. The appellant and his co-accused were found with a case to answer and placed on their defence. 3 .0 DEFENCE 3.1 In his defence, the appellant admitted having escaped from the Choma Correction Facility on 21st January, 2020 and that he was headed for Mazabuka. He told the trial court that seeing that he had no transport, he decided to steal the subject television from the waiting room at Choma Railway Station so that he could sell it and use the proceeds of sale as transport money. He denied possessing the television set and the bags or ever telling PW2 that it was his property which he kept in Mapanza before going to jail. He further denied having participated in the assault and robbery at PWl's residence. 3.2 In cross-examination, he denied having been found sleeping near the television set and that the television set was on top of the bags. He stated that he saw the bags for the first time at the police station. He also denied telling the police that he was Oscar Muchindu at the time the escape report was prepared and he maintained that he was Oscar Muchimba. J10 4 .0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 The trial court considered the evidence on record and found that PWl's evidence of identification at the scene of the crime did not satisfy the principles laid down in the case of Nyambe v The People,1 firstly because PW1 confessed to having been partially intoxicated with liquor during the material time. That it is possible that the condition could have impaired his good judgment and ability to observe properly. Secondly, that PW1 was traumatized by the incident and thirdly that PW1 was severely injured notably on the eyes and was therefore in great pain. The court reasoned that these conditions imply that PW1 observed his attackers under stress and this may have deprived him of the opportunity to observe properly. 4.2 The trial court noted that the identification parade was not fairly conducted owing to the fact that PW1 saw the accused in cells before the parade was conducted. Secondly, owing to the dereliction of duty on the part of the state to provide evidence to dispute the allegations by the appellant that the parade was not conducted fairly. The trial court reasoned that the state must be wary that the burden it bears in proving criminal allegations, is high and this entails that it has the duty Jll to avail courts with all relevant evidence which is reasonably in their possession. 4.3 The trial court stated that with this strict evidential requirement, it is naive for the state to expect courts to accept casual conduct in either investigating or prosecution of criminal cases. The court held that in the absence of the photos, there is no basis for it to verify that the parade was fairly conducted. 4.4 The trial court went further to state that it was persuaded by PW2's version of the story as it did not find any reason which could have motivated PW2 to concoct a false story against the appellant. The trial court further stated that the appellant's explanation about how he came in possession of the television set was an afterthought and a scheme to escape the harsh penalty attached to the offence of aggravated robbery. In conclusion, the trial court found the appellant guilty as charged. 5 .0 GROUND OF APPEAL 5.1 Disconsolate with the conviction, the appellant filed one ground of appeal couched as follows: (1) The trial court erred both in law and fact in rejecting the appellant's defence and convicting him despite his J12 defence being reasonably plausible and creating a reasonable doubt in the prosecution case. 6 .0 APPELLANTS ARGUMENTS 6.1 In support of the sole ground of appeal, it was submitted that the Supreme Court has on a number of occasions pronounced itself on how the defence or the evidence of an accused person who is caught in a lie ought to be dealt with. We were referred to the case of Tembo v The People2 where it was held that: "When a witness, and particularly an accused person, is proved to have lied in material respects, unless the untruthful portions of his evidence go to the root of the whole story to the extent that the remainder cannot stand alone, such remainder is entitled to due consideration. The weight of the remainder is affected by the fact that the witness has been shown to be capable of untruthfulness, but the remainder must still be considered to see whether it might reasonably be true; it cannot be rejected out of hand." 6.2 It was submitted that the issue of the appellants age and surname are neither material facts to the charge of aggravated robbery nor do they go to the root of the appellants defence on record. As such, in view of the guidance in the Tembo case supra the trial court misdirected itself by outrightly rejecting the appellants defence as the court was obligated to consider it. J13 6.3 Counsel contended that the appellant's defence on record is reasonably plausible and casts a shadow of doubt on the prosecution's case. It was contended that the appellant was never identified by any of the prosecution witnesses as one of the assailants who attacked and robbed PW1. That the record is also devoid of evidence of any witness who saw the appellant conveying or carrying the television set and or the set of bags to Choma Railway Station waiting room where the appellant is said to have been found. 6.4 Counsel pointed out that the Choma Railway Station is a public place accessible to many people, as such any other person other than the appellant could have conveyed the said stolen property. In the premise, counsel argued that the appellant did not take part in the aggravated robbery and neither did he convey the said stolen property but that he was only found near the said property by PW2 only because he wanted to steal the television. 6.5 It was counsel's further submission that the admission by the appellant when he was confronted by PW2 that he was the owner of the stolen items supports his defence. This is because it is reasonably plausible that the said claim or admission was made in order to avert PW2's J14 suspicion of the appellant and in furtherance of the appellants plan of stealing the television set. It was contended that a reasonable doubt as to the guilt of the appellant existed and still does in this case on account of the plausibility of his defence. We were referred to the case of Saluwema v The People3 where it was held that: "if the accused's case is reasonably possible although not probable, then a reasonable doubt exists, and the prosecution cannot be said to have discharged its burden of proof." 6.6 It was counsel's further submission that in this case there are more than two inferences that can be drawn from the facts and that as was ably guided by the Supreme Court in the case of Dorothy Mutale and Richard Phi ri v The People4 "where two or more inferences are possible, it has always been a cardinal principle of the criminal law that the Court will adopt the one which is more favourable to an accused if there is nothing in the case to exclude such inference." 6.7 In summation, we were urged to quash the appellant's conviction and sentence and set him at liberty. J15 7 .0 RESPONDENT'S ARGUMENTS 7.1 The respondent filed heads of argument and contended that the lower court rightly convicted the appellant. That the circumstances that led to the apprehension of the appellant drew a lot of inferences as he was found lying near the property of PW1 which was allegedly stolen hours before his apprehension. We were referred to the case of Saidi Banda v The People5 where it was held that: "Circumstantial evidence notwithstanding its weakness as we alluded to in the David Zulu case, is in many instances probably as good, if not even better than direct evidence." According to counsel, there are numerous evidentiary facts from which it can safely and satisfactorily be inferred that the appellant committed the offence and there is indeed a number of unexplained odd coincidences arising from the conduct of the appellant for which the explanation which was rendered in his defence when he bore the evidential burden cannot reasonably be true. 7.2 It was contended that the coincidences are so glaring that they can only point to the inference that the appellant committed the offence. Counsel referred us to the case of Kaluba Ilunga and Another v J16 The People6 where it was held that: "Odd coincidences if unexplained may be supporting evidence. An explanation which cannot reasonably be true is in this connection no explanation at all." It was contended that the trial court was not wrong when it found that the appellant lacked credibility when he gave false names and attempted to lie about his age. That his demeanor diminished the accuracy of his credibility. 7.3 We were further referred to the case of Elias Kunda v The People7 where it was held that: "In cases where guilt is found by inference, as for instance, where the doctrine of recent possession is applied, there cannot be conviction if an explanation given by the accused, either at an earlier stage (such as to the Police) or during the trial, might reasonably be true. Where an accused person is in possession of property recently stolen, the court may infer guilty knowledge if he gives no explanation to account for his possession or if the court is satisfied that the explanation offered is untrue." 7 A Further, counsel brought to our attention the case of George Nswana v The People8 where the Supreme Court considered the inference of guilt based on recent possession. The court stated that: "The inference of guilt based on recent possession, particularly where no explanation is offered which might J17 reasonably be true, rests on the absence of any reasonable likelihood that the goods might have changed hands in the meantime and the consequent high degree of probability that the person in recent possession himself obtained them and committed the offence. Where suspicious features surround the case that indicates that the applicant cannot reasonably claim to have been in innocent possession, the question remains whether the applicant, not being in innocent possession, was the thief or a guilty receiver or retainer." 7.5 In summation, it was contended that the appellant was found in possession of some of the stolen items the same night PW1 was attacked. That there was overwhelming evidence against the appellant, and therefore, we were urged to dismiss the appeal and uphold the conviction and sentence. 8 .0 HEARING OF APPEAL 8.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Katazo placed full reliance on the arguments filed. On behalf of the state, Mrs. Mungochi-Lungu equally placed full reliance on the arguments in opposition. 9 .0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on record, the arguments by counsel on both sides and the judgment sought to be assailed. J18 9.2 The main issue in this appeal as we see it, is whether the circumstantial evidence on record is sufficient to warrant only an inference of guilt. 9.3 We wish to note from the onset that the prosecution should not have called PW4, a Corrections Officer from Zambia Correctional Service. The import of his evidence was that the appellant and his co-accused were serving prisoners at various correctional facilities. This evidence had no bearing on the charge the appellant and his co-accused were facing. The evidence was highly prejudicial and devoid of any probative value. 9.4 In our jurisdiction, a trial court must not be made aware of the fact that the accused before it was previously convicted, during the life of the charges he or she is currently facing. Section 157(vi) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia even prohibits cross-examining an accused person on his or her previous convictions. The issue of previous convictions must only be brought to the attention of the trial court at the point of sentencing. This is in order to guarantee a fair trial. The Supreme Court in the case of Gift Nkaza v The People9 discussed fair trial at page J8 to J9 in the following terms: J19 "As the learned Deputy Director submitted, consideration of the accused's home area as it happened in this case, has the danger of depriving the poor, or indeed any accused person for that matter, of a fair trial which is guaranteed in our Constitution. In the case of Lt. General Wilford Joseph Funjika v The Attorney General we held, inter-alia, that: "2. Article 18 of the Constitution provides for the accused's individual rights to protection by law. It protects the fair trial of a person charged with a criminal offence." The provision in our Constitution is further amplified by Article 14 of the International Covenant on Civil and Political Rights (ICCPRI) which states that: "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Clearly, the right to a fair trial is paramount as it safe guards individuals from unlawful or arbitrary deprivation of their human rights and freedoms and it ensures effective functioning of the administration of justice. It is, therefore, important to guard against any factors that have the potential to take away this right from the accused. In a paper titled "Fair Trial Standards" Prof. Michelo Hansungule cited the Supreme Court of India in the case of Dharmeshbhai Vasudevbhai and Others v State of Gujarat and Others, where a fair trial was defined to mean: "A trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried is eliminated." J20 We have deliberately discussed what a fair trial is as a reminder to trial courts that this should be kept in mind as they carry out their duty of delivering justice." 9.5 It follows therefore that the requirement to guarantee fair trial, free from prejudice is sacrosanct. The trial court should thus not have allowed the prosecution to lead such prejudicial evidence. Having found that the evidence of PW4 should not have been received, we hereby expunge the same from the record. 9.6 The issue does not end here however. Another question to be determined is whether the trial court was prejudiced by the evidence which the prosecution led so as to be biased against the appellant. This will be considered towards the end of this judgment. 9.7 We note that the evidence against the appellant is circumstantial. The learned trial court did not clearly state this fact in its judgment. We are however satisfied that he was aware of the principles as he was alive to the fact that the evidence was anchored on recent possession of stolen properties. 9.8 The learned trial court analysed the evidence of PW2 and that of the appellant. He accepted the version given by PW2 that the appellant was in possession of the stolen property at the train station barely 2 J21 to 3 hours after the robbery. We find no reason to interfere with that finding by the trial court. 9.9 Learned counsel for the appellant argued that the appellant explained that he lied to PW2 that the TV set was his because he wanted to steal it. This explanation was rejected by the trial court. We agree with the trial court's rejection of this evidence. If indeed the appellant was an intending thief, why did he attempt to run away when he was told to carry his supposed TV and accompany the railway security to their office? His explanation in the circumstances cannot reasonably be true. Further, the period that passed from the time of the robbery to the time he was found in possession was too short. We are satisfied that an inference of guilt is the only inference which could reasonably be drawn from the facts. 9.10 The learned trial court equally considered alternative less severe inferences and rejected the same. We have no reason to interfere with the finding by the trial court, especially that the appellant was found in possession of stolen property the very night of the robbery. 9.11 We now consider whether the trial court was prejudiced by its knowledge of the appellant's previous conviction. The Supreme Court J22 in the case of Humphrey Daka v The People10 had this to say at page J11 where a previous conviction was brought to the attention of the trial court during the life of the trial: "It is not in dispute that the prosecution in cross examination of the appellant did ask him questions relating to a previous offence for which he was convicted by the High Court on the 28th April, 2014 and sentenced to death. We agree with Mr. Muzenga that according to the provisions of Section 157(vi) the appellant ought not to have been asked questions on that conviction. What is of prime importance, however, is whether the trial court was influenced by those questions in arriving at its decision." 9.12 The Supreme Court went on to conclude at page J12 that: "In our view, such a meticulous approach to resolving a contested issue cannot be undertaken by a court that is biased. The view we take, therefore is that the trial court arrived at its conviction via an unbiased approach and, therefore, its sentiments about the appellant's defence, though unfortunate, were not evidence of any bias that may have arisen from the disclosure of the appellant's previous conviction during trial." 9.13 We note that the trial court did not use the information of the previous conviction in the conviction in casu. We also find, as noted by the Apex Court in the Humphrey Daka case supra, that the meticulous analysis of the evidence by the trial court clearly shows that it had no bias against the appellant. Even the acquittal of the appellant's co­ accused clearly shows lack of bias. We are in the circumstances satisfied that no prejudice was occasioned and the appellant had a fair trial. 10 .0 CONCLUSION 10.1 We therefore find no merit in the sole ground of appeal and accordingly dismiss it. The conviction and sentence is upheld. C. F. R. MCHENGA DEPUTY JUDGE PRESIDENT C. K. MAKUNGU K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE