Sakala and Anor v People (SCZ Judgment 11 of 2009) [2009] ZMSC 174 (8 April 2009)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEE N: WINZY SAKALA AND GERALD PHIRI -VS- THE PEOPLE JI (183) SCZ JUDGMENT NO. 11 OF 2009 APPEAL NO. 11 AND 12 OF 2007 Ist APPELLANT 2nd APPELLANT RESPONDENT CORAM: Mumba, Chitengi and Silomba, JJS. On the 1st July, 2008 and 8th April, 2009 For the Appellants: Mr. S.l. Imasiku, Senior Legal Aid Board Counsel For the Respondents: Mrs. M. Kombe, Deputy Chief State Advocate JUDGMENT SILOMBA, JS, delivered the judgment of the Court. Case referred to:- 1. Ilunga Kawala and John Masefu -Vs- The People (1981) ZR 102, at page 123. In this appeal, the two appellants were charged and convicted of the offence of aggravated robbery contrary to Section 294(1) of the Penal Code, Chapter 87 of the Laws. They were each sentenced to 20 years imprisonment with hard labour. J2 (184) The particulars of the case were that Winzy Sakala and Gerald Phiri on the 12th of March, 2003, at Lusaka in the Lusaka District of the Lusaka Province in the Republic of Zambia, jointly and whilst acting together with other persons unknown, did steal from Kasumpa Mwansa, one motor vehicle namely, Toyota Corolla, registration number ACE 8155, leather jacket, nokia cellphone, ladies shoes, audio tapes, celtel scratch cards, umbrella and a belt all valued at K25,141,000.00 and at or immediately before the time of stealing did threaten to use violence to Kasumpa Mwansa in order to retain or overcome resistance to the said property being stolen. To support the charge of aggravated robbery, the prosecution called eight witnesses. The evidence of these witnesses is part of the record of appeal. In the main, the evidence of the prosecution was that on the 12th of March, 2003, at 19.30 hours, Kasumpa Mwansa (PW1) drove to Northmead supermarket in her car, a Toyota Corolla, grey in colour bearing registration number ACE 8155. At the supermarket, PW1 bought two scratch cards for US $5 each and groceries. She (PW1) then decided to go home and after dropping a friend she remembered that she had not dropped the records of appeal at her boss's house. As she made a "U" turn, she saw a grey Toyota Mark II in front of her and instead of proceeding with her intentions she signaled the car in front of her to pass first. After the car passed, she "U" turned and proceeded back to Addis Ababa road. At the junction with Addis Ababa road, she saw the same car she had seen earlier reversing in front of her on Addis Ababa road. PW1 stopped to give way but the other car also stopped and one man came out, from among the J3 (185) passengers, leaving three people in the car. PW1 was able to observe the maneuvers of the people in the other car because her lights were on and there were other motor vehicles passing on Addis Ababa road. The one who came out first had a gun, which he pointed at PW1. He was followed by others who were shouting "out, out, out" in the Chinyanja language. The one with a gun banged on the door and told PW1 to "get out" of the car in the English language. PW1 unfastened her seat belt and raised her hands as she came out. This was after the door was opened for her by the one who had a gun. According to PW1, this is the same person who demanded the car keys from her as she was made to kneel down. After handing the keys over to him he grabbed her by the belt and said "tiye tiye" in Chinyanja. Inside her car, PW1 sat in the rear passenger's seat with someone. The one with a gun sat in front with the driver of her car as they drove towards Addis Ababa round about. Later, she was asked to remove her ear-rings and necklaces; she was also asked a lot of questions and told to lie down in the car. After Addis Ababa round about they drove towards Chikwa Courts and then towards town centre. At Independence/Church roads robots, the car turned left and then right. PW1 was able to observe all this because her face was not covered. When the driver of the car, who kept on asking her a lot of questions, noticed that there was an R. T. C. jacket in the car he scolded his friends why they had not covered her face. He was upset because PW1 had seen his face. At that juncture, the driver slowed down and looked at her and she, (PW1), also looked at him. He then told his friend who had a gun to shoot her because she had seen him. Consequently, his friend made a cracking sound as if he was cocking the J4 (186) gun. In response and to avoid being shot, PW1, leaned on the person she was with at the back and stretched her legs. According to PW1, this is the man who told his friend to stop; he later put a crate on her head. After making several turns as if to confuse her, the car turned into a gravel road and stopped where there was a lot of grass. At that point, her assailants came out of the car and the person she was with at the back of the car came back and asked her for her identity card. The man went to the driver's seat and switched on the lights and picked the I. D from the floor of the car. After switching off the lights, he threw the RTC jacket at PW1 who used it to cover herself. When they all came back to the car, the car drove in the direction of Nationalist road; it increased its speed and PW1 lost direction and she did not know where she and her captors were going. The bandits demanded money; they also wanted to know if she had a friend who had money. Besides, they wanted to know if PW1 had a gun. They warned her that if she did not have money or if she hid a gun from them they were going to kill or throw her into a dam. Thereafter, the car went into a bumpy road and slowed down to a halt. They came out of the car and started throwing things out of the car. In the meantime, she opened the door and stood outside. When they finished throwing out the things, they went back into the car and drove off, leaving her behind. PW1 did not know where she was and so she checked the near gate and realized she was in Katemo road in Rhodes Park. She then ran to Lusaka Water J5 (187) and Sewerage Company, which is located on the same road, and after that went to Longacres Police Post where she made a report. In her report, she mentioned the car, a celtel scratch card, ear-rings, necklace, one pair of shoes, leather jacket, umbrella and some tapes all valued at K25,000,000.00 as the property stolen from her. From the two scratch cards she had bought, one had remained with her. The following day, PW1 went to the shop where she had bought the scratch cards. The shop owner told her that the number of the card that remained in the car was either before or after the one she had remained with. The serial number of the card she had remained with was 071000608021. According to one Muwowo she found at the shop, the last three digits were crucial to her case. Based on the serial number of the card she had remained with, it was concluded that the three digits before and after were — 020 and — 022 respectively. From there, she went to Celtel and using her card, she was given two print outs. The first print out showed that serial — 020 was loaded into a certain phone at 21.56 hours while serial — 022 was loaded at 20.00 hours. From the second print out, she noticed that the one that ended with — 022 had familiar numbers while the other with — 020 was not familiar. PW1 later handed the two print outs and the scratch card to the police. Her further evidence was that the first print out bore the name of Maambo who used scratch card No. 071000608020 at 21.56 hours on 12th of March, 2003. According to PW1, she was with the bandits for at least one and half hours by the time she was released around 21.00 hours. PW1 recalled what the person she sat with behind was wearing, i.e. a trousers beige or creamish in colour. The J6 (188) driver of the vehicle wore jeans, blue in colour. In the position she sat she saw the faces of the person she sat with and that of the driver. As for the person she sat with, she saw him clearly when he switched on the lights to pick the necklaces and ear-rings. At an identification parade held on 9th of May, 2003, PW1 identified the 2 appellant because she was with him at the back of the car. J * In cross-examination, PW1 could not recall the registration number of the Toyota Mark II but she recalled that it briefly followed them behind. She also recalled that three persons from the Toyota Mark II came to join her in her car. The time she was bundled into her car and whisked away was just after 19.30 hours. PW1 told the trial court that she was able to identify her attackers because she was very determined and that the first time she went to an identification parade they refused to come out. The further evidence of the prosecution was that Bresford Muwowo (PW2) was in the shop on the 12th of March, 2009 after 19.00 hours at Northmead when PW1, their regular customer, bought two scratch cards at US $5 each. The evidence of PW2 was that they sold scratch cards in numerical order because the previous year they had experienced a robbery. The following day, PW2 saw PW1 come to the shop to find out if he (PW2) could identify the cards she had bought the previous night because she had been robbed. To ascertain the cards she bought, PW2 checked using the delivery notes and the time they were sold. Being one of the last to buy the last three cards with "21" as the last numbers, PW2 told the trial court that the other scratch card must have preceded "20" or must have been after "21". He confirmed to the trial court that he saw the scratch card, J7 (189) ending with "21" that was in the possession of PW1 and actually identified it in court. The evidence of another prosecution witness, Albert Salima (PW5), an employee of Celtel, was that on the 13 of March, 2003, they received a query from the subscriber with a search warrant from the court wanting to know who had used scratch card number 071000608020. Upon checking from their computer system, the card was found to have been used by phone number 097- 766516 and the date it was used was 12th of March, 2003 at 21.56 hours. According to the record at Celtel, the owner of phone number 097-766516 was Mambo. With the report from Celtel, the mobile phone provider, the police traced phone number 097-766516 to a resident of Zingalume Compound who used the US $5.00 scratch card. In a surprise raid on the house, the police searched the occupants and found a Siemens mobile phone with SIM card number 097-766516, on the 1st appellant. The police then searched a house in Chunga Compound belonging to the 1st appellant where they found a SIM pack bought under the name of Mambo in order to conceal his true identity. On the 9th of May, 2003, an identification parade was organized at Los Angeles Police Post at which PW1 identified the 2 appellant. According to the evidence of PW4, a police officer, both Al and A2 were arrested together at Zingalume Compound. In rebuttal of the prosecution evidence, the 1st appellant (Al) testified before the trial court that on the 27th of March, 2003, while at his bottle store, he was approached by Joe who was selling a Siemens cell-phone for K180,000.00. The following day, Al followed Joe to Katondo Street where he paid him J8 (190) K180,000.00 for the phone. He collected the phone and the SIM pack bearing 097-766516 from Joe and went to his home in Chunga where he forgot the SIM pack. After that, he went back to his bottle store and continued with his business. According to Al, he was, on the 2nd of April, 2003, sent a call by Celtel who told him that they were doing some promotions and they requested for his names and address, which he gave them and indicated his residential address as being in Lilanda. He told them that he was running a bottle store under the name of Sam Mangwana and Sons. They asked him why the name of Mangwana and Sons when the name against the cell-phone was Mambo and he told them that Mambo could be the name of the person from whom he bought a SIM card since it was a used one. On the 3rd of April, 2003, Al was picked up from Twikatane by armed police officers from the Flying Squad masquerading as Celtel employees and ordered him to lie down. He was searched and the police got a Siemens phone and K475,000.00 from him. On the SIM card he had put in the phone, Al told the police that he had bought it from Joe who also gave him a SIM pack, which he had left in Chunga. According to Al he was apprehended and taken to Lusaka Central Police Station together with A2. At the station he was asked for information about the stolen motor vehicle, Toyota Corolla in which the scratch card was left and he told them that Joe might know better because that is where he bought the phone. After interrogation, Al was taken to his home in Chunga where his wife handed a SIM pack over to the police officers. From Chunga Al and the police went to the other house at Lilanda where they collected his NRC. On the 16th of J9 (191) April, 2003, Al was taken to an office at Lusaka Central Police Station where he found a woman whom he later knew as a ZESCO worker from whom a vehicle was stolen. On the 7th of May, 2003, a parade was arranged at Emmasdale Police Station and when a woman he had seen earlier at Lusaka Central Police Station was about to identify the suspects that stole a vehicle from her Al protested to the parade officer and the identification parade was halted. The evidence of the 2nd appellant (A2) was that on the 3rd of April, 2003, he was at his home on his tailoring business. At 15.00 hours Al, who is also the brother-in-law of A2, visited the latter's house where he was cornered by the police. When A2 came out from the house, he was also cornered by the police and told to lie down next to Al. Thereafter, the police and A2 went to the house of A2 and searched it for a gun. At the end of the search, A2 and his wife and Al were taken to the Lusaka Central Police Station where they were interrogated and beaten. When A2 was asked about a gun he told the police that as a tailor, he knew nothing about the gun. On the 16 of April, 2003, A2 was taken to a room at Lusaka Central where he found a man with two women. After a while a senior police officer passed through the office and asked why Al and A2 were in the office where the complainant was. On the 7th of May, 2003, A2 was taken to an identification parade at Emmasdale Police Station, which was later abandoned as per the evidence of Al above. On the 9th of May, 2003, A2 was again taken to a parade where the same lady, as at the Emmasdale parade of 7th of May, 2003, pointed at him. A2 raised his hand to inform the parade officer that the witness had seen J10 (192) him on the 16th of April, 2003 at Lusaka Central Police and he was assured that he had taken down his complaint. The above evidence, from both the prosecution and the defence, was carefully evaluated by the learned trial Judge; the learned trial Judge found that the circumstantial evidence connecting Al to the offence was a celtel recharge scratch card bought by PW1 which was traced to the SIM card found in the possession of Al. The scratch card, serial number 071000608020, was loaded on SIM card bearing phone number 097-766516 at 21.56 hours after PW1 was dumped. On A2, the learned trial Judge found that he was positively identified by PW1 because she was with him in the back seat of the car for about 1% hours. The learned Judge threw out the allegation by A2 that he was seen earlier by PW1 as an afterthought. Coming to both Al and A2, the learned trial Judge found some strange coincidences in the evidence against them. As for Al, he was found in possession of phone number 097-766516 in which a scratch card left in the stolen car by PW1 was loaded at 21.56 hours. As for A2, he was identified by PW1 as one of her assailants and when they were apprehended both Al and A2 were together. The learned Judge opined that their association was not purely based on their family ties but went beyond that; the coincidence of Al's connection to a stolen scratch card and A2, having been identified by PW1 and finally their being found together when they were apprehended put the case against them beyond the realm of conjecture. On the foregoing strange coincidences, he convicted the two appellants and sentenced them to 20 years imprisonment with hard labour. Jll (193) There are three grounds of appeal that have been advanced by the appellants. The first one is that: The learned trial Judge erred in principle when he sentenced both appellants to twenty years imprisonment. The second ground of appeal is that: The learned trial Judge misdirected himself when he dismissed the 2nd appellant's' explanation. The third and last ground of appeal is that: The learned trial Judge misdirected himself when he convicted the 2nd appellant on evidence of identification. In support of the three grounds of appeal, counsel for the appellants indicated to us that he was wholly relying on the appellant's heads of argument. With regard to ground one, it is contended in the heads of argument that the sentence of 20 years imprisonment was wrong in principle for it did not reflect leniency that a first offender was entitled to. Noting that the statutory minimum sentence for aggravated robbery was 15 years imprisonment, counsel urged us to take into account that the sentences imposed on the appellants, as first offenders, were excessive and reduce them accordingly. On the second ground of appeal, counsel submitted in the heads of argument that the 2nd appellant was convicted on the basis of what the learned trial Judge termed as odd coincidences. Counsel outlined the odd coincidences the learned trial Judge relied on as being (i) the fact that both appellants were found together by the police at the time when they were apprehended; (ii) the fact that the 1st appellant was linked to a scratch card proved to have been stolen from PW1 and (iii) the fact that the 2nd appellant was identified by PW1 at an identification parade as providing supportive evidence. J12 (194) Counsel submitted, in respect of the first and second odd coincidences, that the 1st appellant explained that he was at the 2nd appellants home because he had gone there to collect school uniform from the latter who was his tailor, and also his brother-in-law. Counsel submitted that the 2 appellant confirmed the 1st appellant's story and that both explanations were never shaken or challenged in cross-examination. Counsel contended that if being found together was an odd coincidence it was explained and in his view the explanations were reasonable and probable. As far as he was concerned, the fact that the 1st appellant was found with a stolen scratch card did not offer supporting evidence of identity. On the third odd coincidence, counsel submitted that both appellants explained the circumstances under which PW1 identified the 2 appellant at the nd identification parade. The argument of counsel was that the 2 appellant was J exposed to PW1 before the identification parade was conducted as per the evidence of the two appellants. As far as counsel was concerned, the 1st appellant was not challenged in cross-examination and that even if the 2nd appellant was challenged in cross-examination he still maintained his story. On the evidence of PW1 that she identified A2 when he was made to stand up, counsel contended that the place of such identification was at some place other than at the identification parade, where suspects are always made to stand up. Counsel strongly thought that the occasion must have been in the office where Al and A2 found PW1 and were made to sit down on the floor. Counsel submitted that the 2nd appellant, having explained how he was identified by PW1, cannot be said that his identification supported an odd coincidence. J13 (195) On the third ground of appeal, it was argued that the 2 appellant nrl challenged the parade officer in the manner the parade was conducted who assured him that the complaint would be recorded; that even though the parade officer was dead at the time of the trial the prosecution did not challenge the evidence of A2 through the use of the late parade officer's report. By failing to produce the report of the late parade officer, it could be reasonably inferred that the late police officer noted down the complaint of the 2nd appellant, counsel further argued. Counsel submitted that once the evidence of identification parade of A2 by PW1 was discredited, there was no evidence to link and connect A2 to the crime charged as there was nothing recovered from him. In response, Mrs. Kombe supported the conviction. She submitted that the learned trial Judge did not err when he dismissed the 2 appellant's evidence on J identification. As far as she was concerned, the learned Judge considered the explanation of the 2nd appellant and dismissed it as having been carefully concocted intended to defeat the course of justice. The learned Deputy Chief State Advocate submitted, with regard to the 2 nrl appellant's explanation that he was found in the company of the 1st appellant because they were brothers-in-law and that he had gone to the house of the latter to collect his child's school uniform; that there was no reference to this important issue during cross-examination of PW4, the police officer who led evidence to the apprehension of the appellants. She submitted that if that were the case, the defence counsel would have been properly instructed and the cross- examination of PW4 would have brought out evidence for consideration by the trial court. J14 (196) Counsel noted that the appellants did not call any witnesses to confirm that , the 1 appellant went to collect uniform from the 2 appellant. With due regard J to the case of llunqa Kawa la and John Masefu -Vs- The People (1) counsel submitted that the learned trial Judge was right in dismissing the explanation of the 2nd appellant's association with the 1st appellant at the time of apprehension as having been carefully concocted in order to defeat the course of justice. As far as she was concerned, the explanation was not reasonably true; the odd coincidences that linked the appellants to the commission of the case were not explained. On the conduct of the parade, she submitted that it was very well conducted. As far as she was concerned, the learned trial Judge addressed his mind to the issue of whether the parade was fairly conducted and supported his findings. The fact that PW1 had not seen the appellants at the CID office was explained in her evidence. She also explained that there was no identification parade at Emmasdale Police Station because the appellants refused to be paraded. In the circumstances, she submitted that the identification parade, later at Los Angeles Police Post, was fairly conducted and PW1 properly identified the second appellant, noting that there was overwhelming evidence against A2. We have carefully considered the evidence on record, the judgment appealed against and the submissions of counsel. The evidence that the car of PW1, a Toyota corolla, registration number ACE 8155 and other valuables were snatched from her on the evening of the 12th of March, 2003 was not disputed. Also not disputed was the evidence that scratch card number 071000608020 PW1 J15 (197) bought on the night her car was stolen was traced, after professional investigations, to Al's SIM card bearing mobile phone number 097-766516, There were two scratch cards PW1 bought in sequence; there was one number 071000608021 which she remained with and the other, i.e. 071000608020 that remained in the car. The latter is the card Al loaded at 21.56 hours on his mobile soon after PW1 was dumped. In our view, this was the best evidence the prosecution could secure, putting Al on the scene of crime and linking him to the commission of the offence. We do not, therefore, entertain any doubts in our minds about the learned trial Judge's finding of guilt as he was certainly on firm ground. The appeal by Al is, in the circumstances, dismissed. On A2, the evidence of PW1 was that this was the person she sat with in the back of her stolen car for 1^ hours, during the entire period of her captivity. According to her evidence, she had a full view of A2, when, at some point, he switched on the internal lights of the car to pick necklaces and ID she was ordered to drop down. At an identification parade, PW1 had no difficulty in identifying A2. Because PW1 had observed both Al and A2 very carefully during the 1% hours she was with them, it was not surprising that at first Al and A2 refused to be paraded at Emmasdale police station, thereby rendering the identification parade abortive. The assertion by Al and A2 that PW1 had earlier on seen them at the CID offices at the Lusaka Central Police Station was rejected by the learned trial Judge, and rightly so, because it was an afterthought intended by the appellants to extricate themselves. If they were really seen by PW1 at the CID offices, why was she not cross-examined on this very important aspect of their evidence? To have J16 (198) not properly instructed counsel to raise the matter of prior and irregular identification, clearly means to us that nothing of the sort ever took place. Counsel has raised the issue, arising from the evidence of PW1 in cross- examination at page 20, lines 8 and 9, where she is reported to have testified as follows: "Accused 2 is the person I identified (after accused 2 was told to stand up)." Counsel's interpretation of the words in brackets is that since suspects are always in standing positions at identification parades the order given to A2 to stand up could only have been made in the CID room where he was made to sit down in the presence of PW1. We agree with counsel and actually take judicial notice that suspects and all those others who are used to make up numbers at parades are always made to stand up and not to sit down. In fact if a suspect is not feeling well and the parade officer is informed, there would be no parade at all because the original outlook of the suspect would be distorted if he was made to sit down to the disadvantage of an identifying witness. We note that the proceedings at trial were in long hand and it is possible that the typist may have misread the handwriting of the learned trial Judge. We have made efforts to find the file of the lower court for the purpose of deciphering the words in brackets from the handwriting of the learned trial Judge but we have failed to locate it. What is important to note is the conclusion of the learned trial Judge on this matter when he said:- J17 (199) "PW1 was very composed both during the examination in chief and under cross-examination. I am convinced that she was able to identify A2 because she had been with him during the robbery and not at Lusaka Central Police Station shortly before the parade." Had there been evidence of PW1 identifying A2 after he was told to stand up, the learned trial Judge would have not commented in the manner he did. He would have certainly come to a different conclusion. On the whole, we are satisfied that A2 was properly convicted and his appeal must, therefore, fail on the basis of the evidence of identification coupled with the odd coincidence of being found together with Al during the time of apprehension. On the sentences imposed by the learned trial Judge, this is what he had to say to justify the sentences:- "Further, the complainant was subjected to some beatings during the time she was in captivity of her assailants. The sentence of 15 years are far inadequate in this case. The two men deserve longer sentences." We find nothing wrong with the foregoing observations. In addition, the fact that the victim was a young lady in the company of fierce looking armed men must have left her completely traumatized. We uphold the sentences imposed. J18 (200) The two appeals are dismissed. F. N. M. Mumba, SUPREME COURT JUDGE SUPREME COURT JUDGE S. S. Silomba, SUPREME COURT JUDGE