Siame and Ors v People (Appeal 74 of 1987) [1988] ZMSC 71 (23 August 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal Nos. 74-76 of 1987 HOLDEN AT LUSAKA (Criminal Jurisdiction) \ . ...^ :' • -■ - '■ ■ . . ,vr , FELIX SIAME SADA TEMBO ' BORN CHANDA 1st Appellant ' 2nd Appellant ’ i 3rd Appellant ■ Ju;orMricn THE PEOPLE .. . ,r . .. Respondent visited CORAM: Ngulube, D. C. J., Gardner, J. S. and Chaila, AJ. S. , 23rd August, 1988 ■ N. S. Simango, Legal Aid Counsel, for the 1st and 3rd appellants S. S. Zulu, of Zulu and Company, fo£ the 2nd appellant, N. B. Mutti, Assistant Senior State Advocate, for the respondent ■ J U D G M E N;T first Ngulube, D. C. J. delivered the judgment of the court; The appellants were sentenced to death after being convicted on three counts of armed robbery. The incident was in fact one but it had three victims who were travelling together., /i: The particulars on the first'count were that the appellants and others on 27th February, 1986 at Lusaka jointly and whilst acting together and while armed with a gun, stole a number of items 5 ' belonging to the Hon. Jack Kopolo, MP, worth K69.000 plus. The second count was that on the same occasion they stole property worth K10,000 from Rev. Nelson Musonda who was PW4 in the case. The particulars on the third count were that;on.the same occasion they stole property worth K2.900 from the Hon. Atanasho Kabaso, MP. The prosecution case was that on the day in question in the evening the witnesses were driving back from a trip to Botswana where the complainant in the first count bought a new vehicle and some other goods. The complainants on the second and third counts had also purchased a quantity of various goods. As the witnesses were driving ■ * •<■ *»> '1*»* 2/........... towards • : J2 towards Lusaka, a vehicle which was laden with many.individuals;^ overtook them, and, when it was abreast, shots were fired from,that other vehicle and immediately a bullet hole was noticed in one of the doors of the complainant's vehicle. The, complainants abandoned their vehicle and fled into the bush. The robbers continued to fire generally in the direction in which the witnesses.had run and finally the robbers drove away the witnesses vehicle and goods./. The prosecution etidence was that, acting on Information received, the police visited the house of the first appellant where they-found him with a quantity of the stolen property. According to the police, notably PW13, sthe first appellant then led the police to the various cp-accused. The evidence was that the second appellant was also found in possession of a large collection of the stolen property. For instance, he had ., . thirty-two baskets (these were plastics baskets), a carpet, a,primus stove, a motor vehicle jack, and pump, a pair of spectacles, a brief case and several other goods-all ofwhich had been stolen in,the robbery. The evidence was further that the first appellant led the police to the third appellant and another co-accused who was acquitted. The learned trial judge did not accept the; prosecution allegation-that the third appellant was also in possession.of one plastic basket and accepted the contention of one of the acquitted accused persons who was with him that one of the police officers had distributed basketsJ among those accused persons who were not found with any property. ? j On behalf of the State, Mrs Mutti hasrvery;rproperly indicated, to this court that she does not suppott the conviction .recorded,. against the third appellant and would not support ;a conviction even for a lesser charge. We~note that the only evidence against,the third appellant was that he was identified at a parade by PW2 who , was one of the complainants. The circumstances of the robbery v. Including the time when it happened and the opportunity available to the witnesses were such that any identification by the complainants obviously required support in order to rule out thepossibilityof a mistaken identification. Theresas,nothing,.to support the poor identification of the third appellant by PW2. < In the circumstances,;. ■ J that it not correct to th?t to:; IfI'&d 1n court but not'formally . ■ 3/............we . - - ' » ’ i ■ ...y 4/ produced : -J3 ; : we agree that it would be unsafe to allow the conviction of this appellant to stand. We allow the appeal of the third appellant, Born Chanda. The conviction is quashed‘and the death penalty set aside. The appeal is allowed altogether. With regard to the second appellant; we agree with both Mrs Mutti and Mr. Zulu that though the conviction for armed aggravated robbery cannot stand, the evidence against him fully justifies a conviction on the lesser charge of receiving stolen ' property, contrary to Section 318 of the Pena1Code. ‘ We note that there was no identification of this appellant by any witness and that the only evidence against him is that he had a large and somewhat odd assortment of stolen goods. His possession of such property indicated that he must have received it with guilty knowledge and in this regard receiving includes purchasing-normally on the cheap-such property. We allow the appeal of the second appellant against his conviction on the charge of armed aggravated robbery. The conviction on that charge is quashed and the death penalty set aside. In its place we convict the second appellant of the offence of receiving stolen property in respect of all the goods which were found in his ( possession. We impose a sentence of three-and-a-half years '' imprisonment with hard labour with; effect'from 15th March, 1986.; The appeal of the second appellant succeeds to that extent only. , . '■■■■ -'-A ; thAt a SiStOi jh- . M tO With regard to the first appellant, Mr. Simangohas'arguecTin the first place that the evidence concerning the use of a firearm in the commission of the offencsLwas inadequate and unsatisfactory. He has pointed out that there appears to have been a lacuna in the chain of ■ •- : •-.< ••nr;1, t ” evidence between the finding of the spent1cartridge at the scene by PW8 and the examination thereof by Sthe ballistic expert PW9. He argued further that the failure by the prosecution to formally produce the exhibits which were Identified in court-Including the spent cartridge and a pistol which PW6 alleged he had found outside a window to the quarters occupied by this appellant-meant that none of the exhibits were in evidence. We can immediately answer the last submission by pointing out that it Is not correct to contend that where exhibits have been Identified in court but not formally .. . .. V ... ,, '.yr : 8.. T. Gardner ■ • OVDUg. SUPINE COURT 4/,....................produced J4 produced the failure to formally produce isin-anycwayifataPor’that such failure in any way prevents the court from taking into account the evidence actually adduced. With regard to the other argueants concerning the use of the firearm, we do have to observe that there was in this case evidence from the complainants that they not only heard gunshots but that they also immediately saw that there was a hole In their vehicle. The evidence concerning the use of a firearm we consider to have been adequate to sustain a capital charge. Mr. Simango argued also that the evidence of Identification given by PW4 was unsatisfactory and required support. In this regard, Mr. Simango argued that the first appellant had adequately explained how he came to be in possession of the stolen, proper^having bought the same at the second-hand market. We have considered these , submissions and we agree that the Identification of the first appellant by PW4 required corroboration for-the same reasons that we have already given in relation to the Identification of the acquitted appellant. We also wish to take this opportunity to reaffirm that there is a....... distinction between the drawing of an inference of guilt from possession of recently stolen property and the use of such possession- as supporting evidence of a doubtful;Identification. The latter situation applies in this case. The first appellant was identified at a parade by PW4 whose suspect identification was supported by the finding in the appellant's possession of stolen property. Further remarkable coincidences include the fact that a pistol shown to have been the one fired at the complainants was found outside his house and also that he should have led the police to other co-accused s persons who should have turned out to have stolen property in their possession also. The evidence against this appellant was,‘we consider, adequate to sustain the conviction. The appear’of the first appellant against his conviction is dismissed.' Were can,' of course/b appeal against the death penalty in’this rcase:^ ■' • < - • - • H:h wane that on thR-.$^<oc’cash;n thsy HP. The from ths in question in evening the '5 ' ■" M." MS : WJ ‘ Ngu 1 ube . DEPUTY. CHIEF JUSTICE : ' '■ '<’• sicwr; tniru counts " at 50. .................... M. S. XChaila ACTING JUDGE SUPREME COURT . As- i.y.w-. iw....... . r • * • • B. T. Gardner JUDGE SUPREME COURT