Moono and Anor v People (SCZ Appeal 96 of 1991) [1991] ZMSC 47 (7 May 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal Nos. 96 & 97 of 1990 HOLDEN AT LUSAKA 1. PATRICK MOONO 2. SITHOLE MBEWE vs Appellants THE PEOPLE Respondent CORAM: Gardner, Sakala and Chai la JJJ. S. 7th May, 1991. Mr. G. S. Phlri, Director of Public Prosecutions, for the People Mr. C. Mudenda, Legal Aid Counsel, for the appellant JUDGMENT Chai la J. S. delivered the judgment of the court. The appellants were charged with the offence of aggravated robbery whose particulars were that, they, on the 20th of November, 1987 at Choma District of the Southern Province of the Republic of Zambia, jointly and whilst acting together stole one gent's Eagle bicycle, frame number 10119-12-86 valued at K995-55 the property of Anderson Security Systems, and at or immediately before or immediately after the time of such stealing the two appellants used actual violence on Davis Munachizela in order to obtain or retain the said bicycle or overcome resistance to its being stolen or retained. . Sriefly the facts of the case were that on the material date, the complainant who was employed by Anderson Security Systems was on duty at night using a bicycle. He met the two appellants on the road at night. He gave them a warning that he wanted to pass through, but the two appellants were reluctant. One of the appellants when the complainant stopped touched the carrier of the bicycle. The other one threatened him with a screw ddiver. The complainant fell off the bicycle and when he was threatened with a screw driver he ran away the bicycle behind. He made a report to the police and to his employers. /2 The Bicycle........... - J2 - The bicycle was later recovered and the two appellants were subsequently arrested, prosecuted and convicted of the offence. Patrick Moono was sentenced to fifteen years imprisonment with hard labour. The other appellant being a juvenile was sent to an approved school. Mr. C. M. Mudenda, Legal Aid Counsel for both appellants, has advanced two grounds of appeal. The first ground is that the learned trial judge misdirected himself when he was considering the evidence of the complainant PW2, particularly when the complainant was talking about the incident and his subsequent report to the police. Mr. Mudenda argued that the complainant stated in cross-examination that he reported the matter to the police because he feared that if he did not say that he was threatened with a screw driver and a knife his employers would dismiss him for being a coward. Mr. Mudenda has argued that this information indicated that there was no force or violence used during the incident. He has argued that the learned trial judge in his judgment did not take into account this particular evidence adduced from the complainant In cross-examination. The learned Director of Public Prosecutions in supporting the convictions has submitted that the prosecution did prove that violence was used when the bicycle was stolen. Mr. Phlrl argued that there was sufficient violence but he has conceded that the learned trial judge did not consider the evidence of PW2 in cross-examination when PW2 said that he told the police that a screw driver had been used because if he had not done so his employers would have accused him of being a coward. Mr. Phiri further conceded that the learned trial judge in considering the evidence did not take into account what the appellants said in their statements to the police, particularly that after the complainant had fallen from the bicycle and ran away, they picked up the bicycle. He further conceded that the learned trial judge did not consider the evidence of PW4 who reported that the two appellants had mentioned to him that they had picked up the bicycle on their way and that they wanted to Inform the chairman the following morning. We have considered the arguments put forward by ?1r. Mudenda and the grounds of appeal on behalf of both appellants. We have also considered the arguments put forward by the learned Director of Public /3 Prosecutions......... J3 - Prosecutions. We have come to the conclusion that the learned trial judge in considering the evidence of the complainant misdirected himself by failing to consider what the complainant said in cross- examination about his fear about his post if he did not mention in the report to the police that he had been attacked with a screw driver. We have also taken into account that when the judge was considering the question of recent possession, the learned trial judge failed to take into account the explanation which the appellants had given In their statements to the police. We have come to the conclusion that the learned trial judge misdirected himself in failing to consider the evidence from PW4 that the appellants had reported to him that they had picked a bicycle on the way and that they wanted the Chairman to be informed. With these items of evidence , if the learned trial judge had properly directed himself lie must have entertained some doubt in favour of the appellants as to whether or not the complainant was threatened with a screw driver and whether the complainant when he saw those two people was afraid for no reason and decided to run away leaving the bicycle behind. For the foregoing reasons it would be unsafe to allow the convictions to stand. The appeals are allowed; the conclctlons are quashed and the sentences are set aside. 3. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE '^s/chaiia... SUPREME COURT JUDGE