Rabson Chisenga v the People (APPEAL No.249/2017) [2019] ZMSC 387 (5 June 2019)

IN THE SUPREME COURT OF ZAMBIA APPEAL No .249/2017 HOLDEN AT LUSAKA ' ( Criminal Jurisdiction) BETWEEN: UBLIC OF E COU RT JUD/Ci ARY RABSON CHISENGA - AND . . ... • : ~. • • - :_. ·1 ~l • • I PELLANT OURT HE 5006 7, LU THE PEOPLE RESPONDENT Coram: Phiri, Muyovwe and Chinyama, JJS. On 7 t h May, 2019 and on 5 th June, 2019 . For the Appellant: Mrs M. K. Liswanis o, Legal Aid Counsel, Legal Aid Board. For the Responden ts: Mr F. M . Sikazwe, Senior State Advocate, National Prosecutions Authority. JUDGMENT Chinyama, JS, d elivered the Judgment of the Court. · Cases referred to: 1. Lazarous Kantukomwe v The People (1981) Z. R. 125. 2. Sydney Zonde, Aaron Sakala, Edward Chikumbi v The People (1980) Z . R . 337. 3. George Nswana v The People (1988 - 1989) Z. R. 174. 4. Ali and . Another v The People (1973) ZR 232. 5. Githuku v Republic (2012) 2 EALR 152. 6. Stephen Manda v The People (1980) ZR 116. 7. Chabala v The People (1976) Z. R. 14. 8. Machobane v The People (1972) Z. R. 101. Statutes referred to: l. Penal Code, Chapter 87, Laws of Zambia, sections 294(1), 318. The a ppellant was j ointly charged with two others named Jacob Zulu and Thomas Nyoni, with the offen ce of Aggravate d Robbery contrary to section 294(1) of the Penal Code . They were all convicted a nd sentenced to 15 years terms of imprisonment with h a rd labour. The appellant is the only one who h as appealed and the appeal is against conviction. Facts which are not in dispute are that on the night of 8 th January, 2015, PWl (Rachel Marie Mathews) and her husband, PW2 (Sean Mika il Seymeur-David) were asleep in the house of their friend PW3 (Robert Stacey) located in Lusaka's Chudleigh area. PW3 had requested the couple whose usual residence was in Makeni, also in Lusaka, to house-sit for him while h e was away visiting abroad. Around 02:00 hours, PWl and PW2 woke up to violent beatings at the hands of four bandits who had broken into the h ouse. From the electricity lighting in the bedroom PWl was able to see the faces · of two of the assailants whom s he later identified at a police identification parade as J acob Zulu and Thomas Nyoni. She did not see the other two bandits clearly . PW2 who had concussed from the beatings was not a ble to identify any of the assailants. The two witnesses were, however, explicit that they were attacked with knives and metal bars. Several items J2 belonging to the couple including PW3's back-pack bag were s tole n . The trail of police investigations and the good will of members of the public led to the apprehension of Jacob Zulu who in turn led police to the apprehension of Thomas Nyoni and the appellant. The a ppellant led police to his home whe re the blue/ grey b ack pack belonging to PW3 was recove red. PW13 (Detective Inspector Shadreck J e re) who was the a rresting officer, identified the a ppe llant in Court, besides Jacob Zulu and Thomas Nyoni, as the person whom h e arrested a nd ch arged for the offence of Aggravated Robbery. The a ppellant's defence was that he boug ht the back pack at Kl00 from J acob Zulu who passed by his s tand n ear the National Assembly around the end of January, 2 01 5. That is when h e came to know J acob Zulu. He was not given a receipt for the purchase. The appellant also r esp.anded to a questio n in cross examination that h e could not recall where he was on the d ay and time of the robbery but insisted that _he knew nothing a bout it. J3 The lear ned tria l judge rejected the appellant's d efence base d on t h e d octr ine of recen t p ossession and ju stified h er d ecision b y h oldin g th a t- In the present case, the evidence of PW13 was that Al led them to A2 and A3 . . . Afte r A3's apprehension he led the police officers to his home where the blue/grey back pack was recovered. This was the same blue /gre y back pack tha t had been stolen on the night of the attack. When asked to explain his possession of the stolen item, A3 simply stated that he had bought the item from Al. A3's testimony was such that the court was unable to believe the veracity of his evidence a _s he k e pt evading the questions put to him . He also admitted that he had not told his lawyer about the stolen bag that was found in his possession. I found A3 very hesitant and inconsistent in his evidence. He also denied being friends with Al and he also denied giving a statement to the Police. Further, A3 was also not able to account for his whereabouts on the night of the attack, he was also not able to offer reasonable explanation of why he was found in possession of stolen property. From all the evidence before me, I am satisfied that Al, A2 and A3 have been correctly identified as being involved in the robbe ry on the day in question. She found the app e llant guilty a nd con victed him . The a ppeal is on two grounds- 1. That the tria l Court erred in law and fact when she reje cte d the reasonable explanation offered by the appellant as to how he was in possession of the stolen property. 2 . Tha t the learne d judge misdirected herself when she h e ld tha t she was sati sfied that the appellant had been c orrectly J4 The learned tria l judge rejected the appellant's d efence based on t h e doct rine o f recent possession and justified her decision by h oldin g that- In the present c a se, the evidence of PW13 was that Al led them to A2 and A3 ... After A3's apprehension he led the police officers to his home where the blue/ grey back pack was recovered . This was the same blue/gre y back pack that had been stolen on the night of the attack. When asked to explain his possession of the stolen item, A3 simply stated that he had bought the item from Al. A3's testimony was such that the court was unable to believe the veracity of his e vidence as he kept evading the questions put to him. He also admitted that he had not told his lawyer about the stolen bag that was found in his po~session. I found A3 very hesitant and inconsistent in his evidence. He also denied being friends with Al and h e also denied giving a statement to the Police . Further, A3 was also not able to account for his whereabouts on the night of the attack, he was also not able to offer reasonable explanation of why he was found in possession of stolen property. From all the evidence before me, I am satisfied that Al, A2 and A3 have been correctly identified as being involved in the robbery on the day in question. She fou n d the appellant guilty and convic ted him. The a ppeal is on two grounds- 1. That the tria l Court erre d in law and fact when she rejected the reasonable explanation offered by the appellant as to how he was in possession of the stolen property. 2 . That the learned judge misdirected h e rself when she held that she was satisfied tha t the appella nt had been correctly J4 identified as being involved in the robbery on the day in question. Mrs Liswaniso's .submissions in s uppor t of the 1st ground of app e al centre d on the argument that there was no evide n ce a dduce d to establis h that the appellant took part in the robbery and that his expla n a tion of h ow he came into possession of t h e bag was reasonable. It was submitted that the appellant's explanation that h e bought PW3 's back p ack from Jacob Zulu was not contradicted by any other expla n a tion. The case of Lazarous Kantukomwe v The People 1 was cite d in which the duty of the court to con sider whether there was a nother explanation for the appellant b e ing in possession of the stolen property is h ighlighted. It was further s ubmitted tha t the circumstances in this case are such that a r easonable period of time had expired between the day of the robbery a nd the finding of the bag in the appellant's possession such that it was possible for the b ag to have changed hands. The cas-e of Sydney Zonde, Aaron Sakata, Edward Chikumbi v The People2 was cited for the holding that- The doctrine of recent possession applies to a person in the absence of any explanation that might be true when found in possession of the complainant's property barely a few hours after JS the com la inan t h a d suffered a n a rav ated robbe . (Emphasis supplied) It was pointe d ou t th a t the a ppe llant wa s found with th e b ag afte r almos t a m onth from the date of th e rob bery. It was contende d tha t the non -production of a receipt (which the a ppe lla nt w as questioned a bout) does not s u ggest that the appella nt w as on e of th e r o bber s as there wer e othe r wit n esses who bou ght s ome of the s tole n p r op e rty but they did not produce any receipts . To drive the point h ome the case of George Nswana v The People3 regar~ing the c i:rcumstances w h e n infe re n ces of guilt in cases wh ere recently stolen pr op erty is found in the possession of t h e accu sed can b e dra w n. Coming to .th e 2 nd: gro_und the submission attack e d tha t p art of the learne d trial judge's judgm ent where s h e said- From a ll t he evidence before me , I am s atisfied that Al, A2 and A3 h a v e b e en correctly identified on the day in questio n . It was submitte d to th e e ffect tha t there w as no evid ence on record proving t hat the a ppe llant was ide ntifie d at any time a t all and tha t the fin din g of the b ag in his possession d oes not le a d to the inevita b le con clusion that t h e a ppe llan t t ook part in th e robbery. In a pparent refe ren ce to the a ppe llant's court-room identification JG by PW1 3 , it was submitted tha t such had little or no value. Two cases of Ali and Another v The Pe ople4 and the Kenyan case of Githuku v Republic 5 were cited on the point. Based on t h e fo regoing s ubmissions we were urged to allow the appeal and acquit the a ppe llant of th e offence for which h e was convicted. Respo nding to t h e submissions in support of t h e a ppeal, Mr Sikazwe submitted , in r espect of ground one that the Court below was on firm ground when it rejected the a p pellant's explana tion becau se it h a d the opportunity to observe the appellant's de m eanour and made the ob servations alluded to earlier in this judgment. Mr Sikazwe found it odd that the appellant's lawyer, in the Court below, n ever c halle n ged the arresting officer ove r t h e story that the a ppellant bought the b ag from J acob Zulu . H e argued that this fortified the trial Cou rt's reasons for rejecting t h e explana tion on the bctsis that it w_as not reasonable. Counsel asserted that the fact tha t the a ppe llant was found with the bag ~ m eant t h at he fell in th e category of accomplices as found by the trial judge based on the decision in the case of Stephen Manda v The People 6 . The cases of Zonde and Nswana were also referred to for the holdings already cited. J7 It was submitted to the effect that th e appellan t's explanation was not reasonable and that only a n infe rence of guilt could b e drawn tha t the a ppe llan t acted together with Zulu and Nyoni in committing t1:1e crime. Turning to the second ground of app eal, the substance of the contending s ubmission was that the learn ed trial judge concluded that the appellant was correctly identified as b e ing involved in the robbery after evaluating the evidence of recent possession; again that the appellant was a n accomplice for being in possessior. of s tole n property and the Court also evalua ted his d emeanor a nd found it difficult to accept his story. It was argued in the altern ative that if w e be incline d to allow the a ppeal, we should the n find t h e a ppe llant guilty of the lesser offence of receiving stolen property unde r section 318 of the Penal Code. Mrs Liswaniso did not respond to this last part of the submission. This concluded the salient p arts of the parties' submissions. We h ave considered the app eal as well as the a rguments in support and against iC The issue for decis ion in the firs t ground of app eal is whe ther the learned trial judge e rre d whe n she rejected J8 the explanation given by the appe llant to accoun t for · his possess10n of PW3's back-pack s ome three wee k s or so from the time that it was s tolen from his home on the 8 t h Janua ry, 2'0 15. Both a dvocates h ave a bly demonstrated by way of the cases cited the circumstances when the law will infe r that the person found in possession of stole n property is e ither an accomplice or the thie f thereof. The a uthorities in this area are indeed replete . Th e la w as · submitted 1s that an accused p e rson found in possession of recently s tolen property may be taken to be the thief if he gives no expla n a tion to account for his possession of th e property. In the case of Chabala v The People7 it was s ta ted by this Cour t that- And if a person i~ . in possession of prope rty recently stolen and gives no expla n at i on, the proper infe rence from all the circums tance·s of the case m ay be that h e w a s the thief, or broke in to s teal a nd s tole , or was a receiver . .. The onu s is, the refore, on the accused to give an explana tion of how h e came by the s tolen prop erty. The onus is discharge d if the exp lana tion give n is found to be reasonably true . In the same Chabala case it was also h e ld that- J9 An d if e xpla n ati on is g ive n, becau se gu i lt i s a m at ter o f infe re nce , the re cannot be c onviction if the expla n a t ion mig ht re asonably b e true, for then 'g uilt is not the only reasonable infe re nce . Ther efore, where a n accused gives an expla nation, it 1s the duty of the court to con s ider whether the explanation offered might reasonably be true. The court will take into account the totality of the evidence available to see whether the explanation given by the accused is displaced and supports the inference of g uilt and t hat it is ·the only inference that can be drawn on the facts . Otherwise the explanation mus t be accepted even if it is not necessarily true . . . . . . In this case, the evidence how the appellant got connected to the robbery came fro m PW13 (the arresting officer) who said in his evidence: The following morning, he (Ja cob Zulu) le d us to a gentle man I c a me to know a s Rabson Chis enga. Upon inte rvie wing Rabson, he led us to his house where we recovere d a blue g re y back pack which w as also stolen from the scene . And in his own defence the appellant stated that when he was ask ed if h e knew ! aco b Zulu who was wit h the police when they went to see him, he told them that he bought the back pack from him. He also said that the police n ever told him about the robbery. As we have already noted, the court below made an assessment of the veracity of the a ppe llant 's defence based on his JlO demeanour alleging th at the appella nt kept on evading questions put to him a nd h e was inconsistent. The Court did not state the questions which th e appellant evad e d. Neither was the inconsisten cy derponstrated . It is not enough for a presiding Judge or Magistrate to simply say "I do not believe t h e accused b ased on his/ her demeanour " without stating the evidence on w hich the assessment is based. In Machobane v The People8 this Court said- "But demeanour is as much an item of e vidence as anything else observed by the court from which inferences or conclusions are drawn . . · ·. All evidence, whether hea,rd or seen, must appear either in the body of the record or at least in the judgment. Thus if the height oi- weight of a witness might be material the court will record the relevaµ,t particulars; if the court m a kes observations at an inspection at· the locus in quo it will record the matters observed. Equally, if the court observes a witness to be hesitant, or uncomfortable ~hen asked certain questions, or unwilling to look the court or counsel in the eye, these are items of evidence which must be recorded if conclusions a re to be drawn from them." We ·did p eruse the record of a ppeal and did not find any evidence 1n it supporting the learned judge's observation that the appellant's d e fe nce lacked ver acity. The lea rned tria l judge d eemed it an issue that the appellant did not tell his lawyer "about the stolen bag th a t was found in his possession" while Mi- Sikazwe found it odd that the appella nt's lawyer in the Court below did n ot challenge PW 13 over the Jll appellant's explanation . We have rea d the record of the evidence given by the a ppe llant in the Court be low, p a rticularly the questions a nd answe rs during his cross examination. The relevant portion where the learned judge's observation came from reads as follows: Q. What woul~ make police implicate you? A. Because the y requeste d tha t I give him mone y and I didn't have . Q. Did you tell this to your la wyer? A. I' told him I bought the ba g . Q. Did you inform your la wyer? A. I n e ver. Q . But this is important information. If police requested for mone y from you - you should have told. A. Yes. It is clear from this exchange that the issue under discussion related to the appella.i.1.t '-s allegation tha t police had told him to give th em money so· that he should not be implicated. Clearly, the lear ned judge took the appellant's reply that he did n ot tell his lawyer out of context. The way we understand the appellant's answer, and it is very plain in the text we have recited, is that his a n swer was simply that h e did not tell his lawyer that police h a d told them to give him money s o that he s hould not be implicated. J12 As for Mr Sikazwe 's suggestion that it was odd that the appellant's lawyer did not c halle nge PW13 over the appellant's explanation (of how he came by the back pack) we do not see th e need for the challe nge. S o far as we are able to s ee from the evidence on record, it is not in dispute that the appellant told the police that h e bought the ba ck pack from J acob Zulu. The onus was on the prosecution to show that no such explanation was given. We notice , in any case, that in following up the ques tion ·whether Thomas . Nyoni ·w as Jacob Zulu's workmate which the witness answe red· in t~e affirmative, he was also asked whethe r he was also a workmate ·to the a ppellant which the witness answered in the negative. · This, in our view, confirmed that the only relationship between the a ppe llant and Jacob Zulu was the b ack pack which the former bought from the latter. The appellant was in fact e mphatic about this even in his own defence. Whe n asked whether he knew. Jacob Zulu before the back pack transac tion, he replied that h e did not. The re was thus no obligation on the appellant's advocate to go b eyond the question when it was alread y on record, in effect, that t h e only relationship between the appellant and Jacob Zulu was that of buyer and seller of the back pack. There is no other evidence that they knew each othe r J13 pre vious ly. And certainly, the issu e of friendship which is one o f the criteria ta ken into account by the learne d trial judge in rejecting the a ppella nt's defence does not, therefore , arise . There was, as we have sajd, no obligation on the appellant's advocate in the Court below to ra ise the challenge alluded to by Mr Sikazwe. The learned trial judge also took into account the fact that the appellant d enied during cross examination that he h a d given a statement to the police that he and Jacob Zulu were close friends who drunk toge ther. It is obvious th a t the learn e d judge thought the a ppe llant lie d about the s tatem ent. Again, we fajl to see how the appellant's denial could have been an issue. The statement which the appellant is alleged to have given to t he police was n ever produced in Court an~ so the appellant's denial that he made a statement was never rebutted . Clearly, the trial judge misdirected herself in taking the matter into account. As to the a ppellant's a lleged failure to account for his whereabouts on the date and time of the robbery, we again take the view that in the light of his defence, t his cannot b e held agajnst him. The m ajority of u ·s hardly k eep a diary of our daily activities to enable us recall details where w e were or what we did on s pecific days and times unless the eve nt was so s ignificant t hat one cannot J14 fail to h a ve a gen e ra l recollection of what h appened. In this cas e there is no evidence b esides the back -pack to s how tha t the a ppe llant w as p a rt of the robbery. The a ppe llant was found in possess10n of recently stolen prope r ty and h e gave an explana tion . Can the explanation b e reasonably true give n the circumstances of t h e case? Are there any suspicious features surrounding the case tha t indicate that the a ppe llant cannot reasonably claim to h a ve been in innocent p ossession of the b ack p ack? Was he the thie f or guilty receiver? Our response to these questions is that h a ving examined the eviden ce on record we see nothing su s pic ious or indicating that the appellant was the thief or guilty receiver of the back pack. Th ere is clearly no other explanation of h ow the a ppellant came by the back pack besides his explanation that he bought it from Jacob Zulu. We find the explana tion to be r easonably true in the c ircumstances ap:d that the learned trial judge e rre d in rejecting it. There is merit in ground one of the a ppeal and we uphold it. Turning to the arguments in the second ground of a ppeal, we entire ly agree th a t it was a complete misdirection on the part of the learned jud ge to asse rt that the appellant was a lso identified as a par ticipant in t h e robbery. It is clear from the evidence on record JlS tha t t h e appellant cannot be said to have been identifie d in connection w ith the robbe ry. He was identifie d only by PW1 3 in th e court room, d urin g t h e t rial as one of t h e t h ree people th at h e a rres te d for th e offe n ce. As for t h e alte rna tive prayer tha t we find the appe llant guilty of the lesser offe n ce of receivin g s tole n prop e r ty u nder section 318 of the Penal Code, the Sta te h as n ot d em onstra te d tha t the a ppellant knew tha t the back -pack was a s tole n item at th e time t h a t h e bought it from J acob Zulu. In the case of Lazarous Kantukomwe earlie r c ited by Mrs Lisw aniso it w as fur th er held that- (ii) In thi s particular ~ase it is quite possible that the appellant did not s t eal the motor vehicle, but i t is quite clear that he was in possession of stolen property and should properly be convicted of receiving stole n prope rty knowing it to h ave b e en stolen. (Emphasi s s u pplied) Knowle d ge by the appellant tha t the p rope rty was s tolen a t the time of buyin g is a n ecessary ingr e dient of the proposed offen ce . The appella nt was in possession of re cently s tolen property quite alrigh t. Ther e is, howeve r , no evidence that h e kne w that t he back p ack w as stole n . J acob Zulu who knew w h y h e led p olice to J16 • the appellant did not .' give evide nce why he did that. There 1s, therefore, m e rit in the second ground of appeal as well. All in a ll, the two g rounds of app eal have merit and we uphold the appeal and set aside the conviction and sentence. The appellant stands acquitted of the offence of Aggravated Robbe ry and he is set at liberty . . . . . . . . . . . . . . . . · ........... .l\.: :~ ' I ' G. S. PHIRI .................... . SUPREME COURT JUDGE /:.-:~..-..... -------=- E. N . C. MUYOVWE SUPREME COURT JUDGE ......................... ~.~. 0. .. :.: .................... . J. iJlJAMA SUPREME COURT JUDGE J1 7