Mumba and Anor v People (Appeal 223 of 1982) [1987] ZMSC 86 (15 November 1987)

IB THE SUPREME COURT OF ZAMBIA Appeals fee 223 and 22AZ32 AT NDQLA (Criminal Jurisdiction) IN THE MATTER BETWEENi 1. ROBSON MUMBA 2. ANDERSON CHIPOLA APPELLANTS AND THE PEOPLE RESPONDENT CORAHi Ngulube, D. C. J., Gardner and Sakala, JJ. S. 15th September, 198? For the Appellants i S. K, Hunthall, Senior Legal Aid For the Respondent i J. M, Hwanachonga, Senior State Counsel Advocate JUDGMENT Ngulube* D. C. J., delivered the Judgment of the court. The appellants were sentenced to undergo fifteen years imprisonment with hard labour In consequence of their conviction on a charge of aggravated robbery. The particulars alleged that on 12th April, 1981 at Luanshye, jointly and whilst acting together, they robbed the complainant - who was PW2 - of the property listed in the charge. That the robbery took place is not In dispute. PW2 was a bar maid in a bar and she gave evidence to the effect that when she closed the bar at night and while she was walking home with the day's takings in a handbag, two men pounced upon her and made off with her property. The two appellants were convicted on the basis of evidence of identification as well as on the basis of warn and caution statements which they made to the police. Mr. Munthali, Senior Legal Aid Counsel has basically advanced two grounds of appeal. One of them related to the admission of the confession otateraents. We have no difficulty J J2 I difficulty in upholding the submissions on that ground when the learned trial commissioner clearly misdirected himself in failing to address his mind to the question of voluntariness and when he relied on the truth or apparent truth of the statements in order to find that the statements were free and voluntary. We agree also that it was wrong for the learned trial commissioner to resolve the issue of voluntariness during the trial within a trial by having recourse to the contents of the statements which were in disupte. In our view, the issue of voluntariness cannot be determined by reference to what is contained in the statements which the accused person seeks to have excluded. Mr. Munthali also argued that the eye witness’s identification was unreliable. He points out that the complainant did not know the appellants before and could not have had a proper opportunity to identify the second appellant whom she purported to identify at the parade. It was argued that, according to the evidence of PW3, the complainant must have seen the second appellant at the police station prior to the holding of the parade. We observe from the record that the learned trial commissioner did not attempt to resolve the conflict between the evidence of the complainant and that of PW3. It follows that in our considered opinion this was another misdirection on the part of the learned trial commissioner when without resolving such conflict: he accepted the testimony of PV2 that she did not see the second appellant before the parade. Mr. Munthali has argued generally to the effect that the rest of the witnesses, namely PWs 3 and A, gave unsatisfactory Identification evidence. It was argued that, since it was dark and since PW3 (who was an eye witness to the robbery) was standing at a distance, his evidence could not have been . reliable. It was also pointed out that PW4 did not give evidence which related to the robbery since he only learnt about it later. On behalf of the state, Mr. Mwanachonga has asked us to apply the proviso i. He has argued that although PW2 may have seen the second appellant at the 3/....................................... ; v police t » police station prior to the parade, she had nonetheless seen bin at the scene. He has also argued that from the evidence of PW3, as supported by PW4, the appellants had been seen at the tavern for a period of about two hours before the robbery as they were pacing up and down. He has also relied on the evidence of the finding of overalls and a hat at the second appellant’s house which articles corresponded with the description of the clothes worn by one of the assailants as described by the Witnesses. In relation to the first appellant, Mr* Hwanachonga relies also on the fact that he led the police to a place where a toy gun was found together with a bank bag which he submits must havej been the one stolen from the complainant. We must observe in relation to the bank bag that due to carelessnes on the part of the prosecuting counsel no effort was made to have the complainant identify the bag. We have carefully considered all the submissions in this case and because of the misdirections to which we have referred we are satisfied that the convictions can only stand If we can apply the proviso. Is against the first appellant, there was evidence from loitering outside the tavern before robbery and who also saw him run out of another bar when the police came to apprehend them and only managed to take the second and 4 who saw him appellant into custody. We agree also with the submission of Mr. Hwanachonga that the evidence that he led the police to his house where the toy gun was * ecovered was evidence against him. There was also his guilty conduct when, after running out of the bar from where A2 was collected, the first appellant hid in the bush with PW5 whom he Informed that he had committed a serious offence and whom he was trying to persuade to flee with him to Zaire. As against the second appellant, he was Identified once again by PWs 3 and 4 in relation to his having been loitering outside the tavern* There was also evidence from PW3 that he witnessed the robbery from a distance of only fifteen metree away. These were the witnesses who led the police to his arrest from another bar when the first appellant fled* We agree also that his having been found J J4 t found with overalls and a hat fitting the description given by the witnesses was also evidence against him. In addition to the evidence to which we have referred and which counsel dealt with In their submissions, there was also the fact that he gave the first appellant*s name to the police, as the other culprit and as the owner of the gun which was later actually found. The foregoing we consider was ample other evidence of Identification. In the circumstances we have no difficulty in applying the proviso. We dismiss the appeals against conviction. Wo appeal lies against the mandatory sentence. M. S. HguXube DEPUTY CHIEF JUSTICE B*T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE