Phiri and Two Others v The People (Appeals Nos 19, 20, 21 of 1971) [1971] ZMCA 9 (15 June 1971)

PHIRI AND TWO OTHERS v THE PEOPLE (1971) ZR 136 (CA) COURT OF APPEAL DOYLE CJ, PICKETT AND MAGNUS JJA 15TH JUNE 1971 40 (Appeals Nos 19, 20, 21 of 1971) Flynote Evidence - Corroboration - Uncorroborated evidence of accomplice - When court can convict. Headnote Of the three appellants one had been convicted by the trial judge on 45 corroborated evidence and two on the uncorroborated evidence of an accomplice. The trial judge had warned himself of the danger of convicting 1971 ZR p137 DOYLE CJ on uncorroborated evidence but had reminded himself that he may convict on such evidence if he was satisfied that the same was weighty and credible. Held: A judge who has seen and heard the witnesses, who is aware of the 5 danger of convicting without some corroborative evidence of an accomplice and is convinced of the truth of such evidence, may convict. Case cited: (1) Chiu Nang Hong v The Public Prosecutor [1964] 1 WLR 1279. 10 Judgment Doyle CJ: delivered the judgment of the court: The facts of this case are that on Thursday, 9th July, 1970, all three appellants went with two other men, Newton Saidi and Joseph Tabama, to a house named Braidburn situated on the Monkey Fountain Road. Their intention was to break into the house and steal money. When they arrived at the 15 house, Tshombe, appellant No. 1, and Moyo, appellant No. 2, went into the house leaving Mwila, appellant No. 3, and Saidi outside. Shortly after the first two had gone into the house the owner of the house, Robert Harvey Howden, appeared and was shot and killed by Moyo. This was seen by Mwila and Newton. Newton ran away but Mwila, the third 20 appellant, went into the house. Mwila and the first two appellants then took out goods from the house which Mwila placed in a garage. All three appellants then came out and placed the stolen goods into a motor vehicle and drove off Saidi and Tabama drove off in another vehicle. The learned trial judge rejected the evidence of Tabama as unsatisfactory. 25 The evidence against the three appellants was largely the evidence of Newton Saidi, who was found by the trial judge to be an accomplice. The sixth ground of appeal alleged that the trial judge erred in finding that so far as the appellant Tshombe was concerned there was corroboration of the witness Newton Saidi. This evidence was the 30 imprint of a shoe which was found on the scene of the crime. That imprint, according to the evidence of the police officer who found it, was an unusual one. In the house of the first appellant there was found a shoe which was admittedly that of the first appellant and that shoe had the same imprint which was found at the scene of the crime. 35 In our view the learned trial judge was correct in saying that the imprint was corroboration in a material matter implicating the accused. This ground of appeal therefore fails. In respect of all three appellants, ground 5 of the grounds of appeal alleged the conviction was unreasonable and should not be supported 40 having regard to the evidence. This ground was argued on the basis that the only evidence against the accused was that of an accomplice. As we have said, there was, in fact, as regards the first accused corroborative evidence. Admittedly there was none as regards the other accused. The test in relation to conviction on the uncorroborated evidence of an 45 accomplice has been set out in the case of Chiu Nang Hong v The Public 1971 ZR p138 DOYLE CJ Prosecutor (1). This was a case from Hong Kong and on appeal the Court of Appeal of Hong Kong decided that it could not interfere with the judge's judgment, though merely reading the notes of evidence the members of the court might feel something less than satisfaction as to the guilt 5 of the appellant. But the judge had seen and heard the witnesses. He was aware of the danger of convicting without some corroborative evidence of the complainant's story and he knew that there was no such evidence. Nevertheless he was convinced of the truth of the plaintiff's story, and in that position was entitled in law to convict the appellant. On 10 appeal to the Privy Council the Judicial Committee approved that statement of the law although they allowed the appeal on the ground that it was not in fact correct that the judge knew he was convicting in the absence of corroborated evidence and appreciated the danger. In the instant case, the learned trial judge fully realised that the 15 evidence against appellants 2 and 3 was uncorroborated. In dealing with the evidence of Newton Saidi he said this: "This witness as I have earlier found is an accomplice. As such, his evidence has to be treated with extreme caution. In particular, I warn myself of the danger of convicting on uncorroborated evidence but remind myself that I may, after considering 20 his uncorroborated evidence, act on it if I am satisfied that it is sufficiently weighty and credible." He then went on to consider the evidence of this witness and found that it was sufficiently weighty and credible. Clearly he has applied the test laid down in Chiu Nang Hong's case, and there is no reason for this court to interfere on this ground. In 25 relation to the second appellant, there were a number of grounds of appeal all relating to a visit paid to the scene at which the second appellant was alleged to have pointed out a number of spots at the scene of the crime. We would point out that this visit took place about a week after the crime and that the crime was a notorious one. Whether or not 30 the appellant had been on the scene before during the week is unknown. In any event, although the record showed that the appellant was brought to the scene and that he indicated various spots, the purpose for which he indicated them was left completely in the air. Although there was a conversation between the appellant and the accompanying police officer, 35 no evidence of that conversation was led. The whole evidence relating to the visit to the scene proved nothing, whether for or against the appellant. Furthermore, the judge clearly did not pay any attention to it. If evidence had been led of the conversation, which would have explained the visit, this evidence might or might not have been admissible. It is 40clear that the evidence as it stood had no effect upon the trial. We do not see anything in this ground of appeal, and we dismiss it. The only remaining ground of appeal related to the third appellant. In effect it was that there was evidence that the third appellant was an accomplice after the fact to murder. In respect of this it is clear 45 that the third appellant went with the others with the intention of assisting in a burglary, and with the intention of assisting in the removal of the proceeds and in the getaway from the scene. He was present and 1971 ZR p139 DOYLE CJ saw a murder being committed. He did not in any way disassociate himself from it, but instead went on giving help to the murderers both in the removal of the goods, and in the departure from the scene. In our opinion it would be a complete travesty of fact to say that the appellant in such circumstances was confining himself only to assisting in relation 5 to the burglary. We see nothing in this ground of appeal and dismiss it. Appeal dismissed