Mwale v People (Appeal 28 of 2003) [2005] ZMSC 54 (1 November 2005)

TN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) APPEAL NO 28 OF 2003 PATSON MWALE V THE PEOPLE - - Appellant Respondent Coram: Chirwa, Chibesakunda and Chitengi JJS on 4th January 2005 and 1st November 2005 Appellant: In Person For the People: Mr C. F. R Mchanga, DPP JUDGMENT Chirwa, JS delivered the judgment of the Court:- Cases referred to: 1. 2. 3. 4. 5. NSW AN A V THE PEOPLE (1988-89) Z. R. 174; GEORGE CHILESHE V THE PEOPLE (1977) Z. R. 176. DPP v KILBOURNE (1973) A. C. 57 MACHOBANE V THE PEOPLE (1972) Z. R. 101 LUBENDAE v THE PEOPLE [1983] Z. R. 54. The appellant, PATSON MWALE, was charged and convicted on one count of murder, contrary to Section 200 of the Penal Code, Cap. 87 and upon his conviction, he was sentenced to 20 years IHL. The particulars of the offence allege that, the appellant on 25th of May 1999 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, did murder one BEN SHATUNKA. He pleaded not guilty. J2 The prosecution called three (3) witnesses and the appellant gave evidence on his own behalf and called two (2) witnesses. Generally, facts in this case are a common cause and are that the appellant was a Police Officer stationed at Emmasdale Police station, hi the course of his work, the appellant was on 24th May 1999 given a docket to investigate a case of breaking into a building and committing a felony in which the complainant was a Mr Edgar Bwalya. In the course of investigations, the appellant apprehended a number of suspects and some quantity of stolen property recovered. One of the suspects picked was the deceased BEN SHATUNKA. The said deceased on 25th May 1999 gave the appellant some property and that some of the stolen property was kept by his friend in George Compound, here in Lusaka. The appellant then made arrangements to visit this house in George Compound. In the night of 25th May 1999, he, in the company of a uniformed Police officer, the deceased and a driver went to George Compound. The appellant and the uniformed Police officer were both armed with AK 47s. On arrival at the house in George Compound as directed by the deceased, the deceased knocked at the door and announced his name and the door was opened. As to who suggested that the deceased knocks at the door and who opened the door are some of the issues of conflict between the prosecution and defence evidence and on which we will comment later. However, upon the door been opened, the appellant, deceased and the uniformed Police officer entered the house. A search was conducted in the house by the appellant in company of Friday Mwanza (PW 2) the owner of the house. A bag and an ironing board were recovered, these also under different circumstances as narrated by the prosecution and the defence. J3 The major conflict between the prosecution evidence and defence evidence is on the circumstances of how the deceased was shot in the head. According to the prosecution evidence, the deceased was deliberately shot in the head. Whereas the defence say that the deceased attempted to grab the gun from the appellant and from the struggle that ensued, the gun accidentally went off and the bullet hit the wall and ricocheted and hit the deceased in the head. It is common cause that the deceased died of gun shot wound in the head. The post morten report shows that the skull was shattered, frontal, both parietal and occipital bones broken with multiple pieces; the brain was perforated with gross haemorrhage a small piece of bullet found in the brain matter. The doctor made a further comment that it appeared that he was shot from a close distance which led to shattered skull. The appellant was arrested and charged with murder and after trial he was found guilty as charged and sentenced to 20 years imprisonment with hard labour. It is against this conviction and sentence that the appellant has appealed. In considering the circumstances of the firing of the gun, the learned trial judge believed the evidence of PW 2 that the appellant aimed and shot at the deceased's head at point blank range and dismissed the appellant's evidence and that of DW 3 that there had been a struggle between the appellant and the deceased as the result the gun went off accidentally, the bullet first hitting the wall and it ricocheted and hit the deceased in the head. In dismissing the appellant's story, the learned trial judge took the appellant s own evidence that J4 he had entered the house with a cocked gun with its safety catch on and that there was nothing wrong with the safety catch. He, therefore, ruled out accidental shooting. The appellant indicated that he had three grounds of appeal but on going through his arguments on each of these grounds of appeal as filed by the court below, we are of the view that there are in fact only two grounds of appeal, which were repetitive of the three grounds. His grounds can therefore be summarized as:- 1) The learned trial judge erred in law in not treating PW 2 as a witness with a possible interest to serve. 2) The learned trial judge erred in law in not treating PW 2 as an accomplice whose evidence needed corroboration. At the hearing of the appeal, the appellant filed a 31 paged written submission book containing 21 authorities. We have gone through this 31 paged book and we have found that most of the authorities referred to by the appellant are irrelevant to the facts of this case; and some of the arguments are a repetition. In his repetitive argument on PW 2 been a witness with a possible interest to serve, the appellant submitted that PW 2 was a witness with a possible interest to serve because he was found in possession of two stolen items linked to the case of breaking into a building which he, the appellant, was investigating. J5 Being found in possession of property recently stolen put PW 2 in the category of a witness with a possible interest to serve, it was submitted and the appellant referred to a number of cases of witnesses, with an interest to serve and possession of recently stolen property. The cases referred to include NSWANA V THE PEOPLE (1) and GEORGE CHILESHE V THE PEOPLE (2) In arguing the second limb of the appeal, the appellant premised on the same facts of some stolen property found in the house of PW 2 which made him an accomplice and that his evidence, required corroboration and for this submission, the appellant referred to a number of cases that included DPP v KILBOURNE (3), and MACHOBANE V THE PEOPLE (4). In conclusion, the appellant submitted that the evidence against him was not overwhelming if the learned trial judge properly looked at the evidence of the appellant and his witness DW 3 as against the evidence of PW 2. The Court, it was submitted, ought to have found that the gun went off accidentally and PW 2 told the court a lie in order to cover himself in the breaking-in case and as such the appellant should be acquitted. On the other hand, the learned D. P. P. submitted that the crucial issue here is how the firearm was fired and it was submitted that the learned trial judge was well aware of this issue and he carefully considered it and concluded that the gun did not go off accidentally as alleged by the appellant and his witness but that the appellant deliberately aimed and fired at the deceased. He further submitted that his was an issue of credibility and he correctly found PW 2 more J6 credible that the appellant and his witness and the court was justified to convict on this single credible witness. We have considered the evidence on record and the judgment of the learned trial judge and also the lengthy submission by the appellant and the oral submission by the learned D. P. P. In our view, credibility can be challenged by looking at all he circumstances of the case. It is not in dispute that the appellant and his friends were led to George Compound by the deceased. It was at night and they were being led into unknown world. It is unbelievable that the suspect leading them would be free from any handcuffs or shackles. From the appellant7 s own evidence, he had with him a Police walkie talkie radio with him. He also told the Court that he held the deceased by his trouser belt in the waist. How is it possible to carry a rifle for protection, a radio for communication and at the same time hold a suspect by the waist? There is evidence that the house where the deceased led the appellant and his friends was lit. This gave every one an opportunity to observe what was going on. The search was conducted by the appellant and his witness. For the prosecution, it was only the appellant and PW 2who conducted the search. It does not make sense that the deceased, who was not the owner of the house should have accompanied the appellant in his search. There is more sense in PW 2, the owner of the house, to accompany the search party. The circumstances of how the gun went off were considered by the learned trial judge. It was found that the gun that went off was the one carried J7 by the appellant and he admitted that prior to entering the house he had cocked the gun and its safety catch was on. According to appellant's own evidence, during the purported struggle for the gun with the deceased, the deceased held the barrel of the gun. It is a notorious fact that triggers and safety catches are never on a barrel of a gun. Having admitted that there was nothing wrong with the safety catch of the gun, we do not see how the gun could have gone off in the struggle. The circumstances of this case are such that the story of PW 2 is more credible that there was no struggle for the gun between the appellant and the deceased. Bearing in mind the post mortem report that the head of the deceased was blown off from the back, it is obvious that he must have been shot from the front. The gun having been cocked and safety catch put on, the appellant ought to have realized that death was likely to occur with such a weapon and we totally agree with the learned trial judge that this case is on all fours with our decision in the case of LUBENDAE v THE PEOPLE (5). On appellant7s own evidence on the crucial part of the sequence of the events that he entered the house with a cocked gun, he ought to have foreseen the consequences of entering a house with a loaded and cocked gun. From the evidence, we cannot fault the learned trial judge in his finding that PW 2 was a more credible witness. There are many unexplained events and acts by the appellant. There was no accident following a struggle for the gun as found by the learned trial judge. We, therefore, dismiss the appeal against conviction. J8 The appellant was convicted of murder and sentenced to 20 years imprisonment with hard labour. He had appealed against this sentence saying that the sentence is grave for him to serve and that he will lose his employment in the Police service and his benefits and he prayed for leniency. The sentence for murder is death or where extenuating circumstances apply, to any sentence other than death is provided under Section 201 (1) of the Penal Code, Cap. 87. In the present case, the learned trial judge was perfectly entitled to sentence the appellant to a term of years if the circumstances of the case fell within Section 201 (1) (b) of the Penal Code, Cap 87 and it is therefore necessary to look at what made the learned trial judge sentence the appellant to 20 years I. H. L. This is what the learned trial judge said on sentencing:- "I have dwelt at length in my judgment on how the deceased met his death. The circumstances are such that should have compelled the accused to exercise restraint in his conduct as a Police officer. I appreciate that the accused was on duty on that night to serve the public. He was on recovery exercise of some stolen goods. I also appreciate that fact that our Police officers work under very stressful conditions in view of the high rate of crime currently prevailing in the country. The accused was commended by his supervisor at Emmasdale Police Station on the morning following the shooting of the deceased for having recovered a lot of stolen items earlier that night. He is a first offender and a father of two (2) children. He is still very young as he is just 31 years old; and youthful as such, he could devote the rest of his J9 lifetime later to gainful and fruitful contribution in society. To this extent only, I am persuaded to impose on the accused person a lenient sentence other than capital punishment." The circumstances under which the Court may pass any sentence on conviction of murder are contained in Section 201 (2) of the Penal Code which reads:- "201 (1) ................................ (2) For the purpose of this Section -— (a) an extenuating circumstance is any fact associated with the offence which would diminish morally the degree of the convicted person's guilt; (b) in deciding whether or not there are extenuating circumstances, the Court shall consider the standard of behaviour of an ordinary person of a class of the Community to which the convicted person belongs." Looking at the provisions of the law and what the learned trial judge took into account amount to extenuating circumstances. The learned trial judge, therefore misdirected himself in sentencing the appellant to 20 years I. H. L. instead of the deserved mandatory sentence. What the learned trail judge took into consideration is best left for the Committee on Prerogative of Mercy and not for sentencing. The sentence of 20 years I. H. L. is therefore, set aside and in its J10 place we impose the mandatory death sentence and order that the appellant be hanged by the neck until he is pronounced dead. The appeal, therefore fails. D K Chirwa JUDGE OF THE SUPREME COURT L P Chibesakunda JUDGE OF THE SUPREME COURT P Chitengi JUDGE OF THE SUPREME COURT