Sinyolo Muchiya v The People (Appeal No.139/2021) [2023] ZMCA 201 (24 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisdiction) BETWEEN: Appeal No.139/2021 SINYOLO MUCHIYA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga, JJA On: 12th May 2022, 18th February 2022, 21 September 2022, 15th November 2022 and 24th August 2023 For the Appellant: M. Mutemwa, Mutemwa Chambers For the Respondents: M. I. Mwala, Senior State Advocate, National Prosecution Authority JUD GME N T Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. Zambia Telecommunications Company Limited V. Mulwanda and Others, SCZ Appeal No. 63 of 2009 2. Minister of Home Affairs v. Lee Habasonda [2007] Z. R. 207(Reprint) 3. Lucky Dube and Two Others v. The People CAZ Appeal No. 48,49,50 of 2017 J2 4. Darius Chanda Nkole, Francis Kaluba and Zanta Kabangabanga v. The People, SCZ Judgment No. 8 of 5. R v. Linekar [1985] 2 ALL ER 70 6. GDC Hauliers Zambia Limited v. Trans-Carriers LimiLed, SCZ Judgment No. 7 of 2001 7. Malawo v. Bulk Carriers of Zambia Limited [1978] Z. R. 185 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 1. INTRODUCTION 1.1. The appellant appeared before the Subordinate Court ( Honourable J. M. Mbolela) , charged with the offence of rape contrary to Section 132 of The Penal Code. 1.2. He denied the charge and the matter proceeded to trial. 1.3. At the end of the trial, he was convicted and committed to the High Court for sentencing. 1.4. In the High Court (Mulife, J., as he then was), he was sentenced to 18 years imprisonment with hard labour. J3 1.5. He has appealed against the conviction. 2. CASE BEFORE THE TRIAL MAGISTRATE 2.1. During the trial, it was not in dispute that on the 6th day of April 2018, in the evening, the appellant had sexual intercourse with the prosecutrix. 2.2. What was in contention was whether the sexual intercourse as consensual. 2.3. The prosecution evidence was that around 01:56 hours that morning, the prosec.1trix, a student at Rusangu University, entered a friend's room, at the same University. 2.4. She was crying and her wig was in her hands. The waistline of her unzipped trousers, was almost on her hips. 2.5. She told her fiends that she had been raped and that she knew the rapist. 2.6. She was later to narrate in court that around 23:00 hours she left Tooters in Monze, for the University, in a taxi that was being driven by the appellant. J4 2.7. As they got near the University, she told him where to drop her, but he accelerated and stopped further on. 2.8. The appellant left the driver's seat and forcibly undressed the prosecutrix. He then had sexual intercourse with her. 2.9. After he was done, the prosecutrix got out of the car and started walking back to the University. The appellant got her into the car and she tore his T-shirt and scratched his neck. 2.10. When they got near the University, the appellant gave demanded the fee for trip and the prosecutrix him KlOO after he squeezed her neck. 2.11. The appellant then offered the money back and as she attempted to get it, it tore, and she ended up with half of the note. 2.12. The appellant's narration of the events of that night was that the prosecutrix was his girlfriend. He had previously had sex wit. her at a lodge, at a '1 ',, fee. JS 2.13. That night, they drank from a number of bars left before he proposed to have sex with her. They Tooters after 02:00 hours. 2.14. On the way to the University, he allowed the prosecutrix to drive his car. The prosecutrix drove past the University and parked the car. 2. 15. She then demanded that he pays her before they could have sex. her He assured her that he would pay after the act and the prosecutrix undressed. 2.16. They had sex twice, after which the prosecutrix dressed up and demanded K300. He only paid her Kl50 and she got upset and they started fighting. 2.17. The prosecutrix wanted KlOO that he had reserved for fuel because she had seen the money. During the course of the fight the KlOO note tore. He then left and went home. 2.18. On his apprehension, the appellant was subjected to a medical examination by a doctor. He was found to have recent scratch marks around the neck. 2 .19. There was also evidence that when the prosecutrix was examined by a doctor, no semen was J6 found on her. The doctor only observed bruises on the vagina. 3. FINDINGS BY THE TRIAL MAGISTRATE 3.1. The trial Magistrate accepted the prosecutrix version of events because he found her to be a credible witness. 3.2. Her credibility was anchored on her consistency in that she complained of the rape at the earliest opportunity and gave an indication of the identity of her assailant. She also appeared distressed which was consistent with a person who had been attacked. 3.3. Her evidence was also found credible because the medical report showed that her vagina was bruised. 3.4. The trial Magistrate also found that the bruises on the appellant's neck confirmed the prosecutrix's story. 3.5. He did not accept the appellant's claim that the sex was consensual. 4. PROCEEDINGS IN THE HIGH COURT 4.1. As indicated earlier, following his conviction by the Subordinate Court, the appellant was committed to the High Court for sentencing. J7 4.2. The appellant was sentenced to 18 years imprisonment after the High Court Judge noted that he was a first offender but that with there was an increase in sexual violence offences and there was need to imposes deterrent sentences. 5. GROUNDS OF APPEAL 5.1. Five grounds have been advanced in support of this appeal and they are couched as follows: ( 1) The trial magistrate erred in law and misdirected himself when he held that the prosecution proved its case beyond all reasonable doubt when the totality of the evidence on record did not support such a finding; (2) The court below misdirected itself on points of did fact and law by holding that the prosecutrix not consent to have sexual intercourse; (3) The trial court erred in law when he failed to consider and or analyse the appellant's version of events which was reasonably possible; (4) By non-direction or misdirection or otherwise, the court below did not properly assess and JS evaluate the evidence as he took into account matters which he ought not to have taken into account and conversely failed to take into account matters which he ought to have taken into account; and (5) The trial magistrate erred and misdirected himself when he failed to warn himself of the fact that the prosecutrix had her own interest to serve. 6. THE HEARING 6.1. At the hearing, the 1st and 4th grounds of appeal were argued together. Counsel also argued the 2nd and 3rd grounds of appeal together. The 5th ground of appeal was argued last. 6.2. In our assessment, the 5 grounds of appeal deal with two thematic areas, that is: ( 1) the failure by the trial Magistrate to comply with Section 169 of The Criminal Procedure Code; and (2) the finding, not supported by the evidence, that the sexual intercourse and between the appellant the prosecutrix was not consensual. J9 6.3. We will therefore deal with all the arguments in the 5 grounds of appeal under these two thematic areas. 7. FAILURE TO ADHERE TO SECTION 169 OF THE CRIMINAL PROCEDURE CODE 7.1. Counsel for the appellant referred to the cases of Zambia Telecommunications Company Limited v. Mulwanda and Others1 and Minister of Home Affairs v. Lee Habasonda2 , and submitted that the judgment of the trial court failed to meet the requirements of Section 169(1) of The Criminal Procedure Code. 7.2. This is because the judgment does not identify issues for determination, nor does it contain any decisions thereon. 7.3. The trial magistrate the simply reproduced prosecutrix evidence, which he then presented as findings of fact. 7.4. Counsel also submitted that since consent was at the centre of the charge, the trial Magistrate's failure to determine the issue and admit the prosecutrix's version without determining the issues JlO was an abrogation of Section 169 of The Criminal Procedure Code. 7.5. He referred to the case of Lucky Dube and Two Others v. The People and submitted that in that case, we held that the failure to resolve conflicting evidence is a misdirection and an appellate court cannot make a findings of fact. 8. RESPONDENT'S RESPONSE TO ARGUMENT THAT SECTION 169 OF THE CRIMINAL PROCEDURE CODE WAS NOT ADHERED TO 8.1. In response, Ms. Mwala conceded that in his judgment, the trial Magistrate did not adequately analyse the testimony of the witnesses. 8.2. However, she submitted that even if this was the case, the evidence did prove that the appellant committed the offence. 8.3. Ms. Mwala referred to the case of Darius Chanda Nkole, Francis Kaluba and Zanta Kabangabanga v. The People4 and submitted that even if an appellate court cannot rectify the shortcomings in a judgment, a trial court can still consider whether the evidence on the record does prove that an offence was committed and still uphold a conviction. Jll 9. COURT'S CONSIDERATION AND DECISION ON THE FAILURE TO ADHERE TO SECTION 169 OF THE CRIMINAL PROCEDURE CODE 9.1. We have examined the 12-page judgment prepared by the trial Magistrate. 9.2. We note that the judgment does not set out, as has been the practice with most Subordinate Court judgments, the ingredients of the offence charged (in this case rape) and what the prosecutor was required to prove. 9.3. After setting out the charge that the appellant was facing, the judgment, in the first eight pages, recounts both the prosecution and defence evidence. 9.4. The remaining 4 pages are concerned with an evaluation of the evidence and the applicable law. 9.5. Section 169(1) of The Criminal Procedure Code, which sets out what a judgment must contain, reads as follows: 'The judgment in every trial in any court shall, except as otherwise expressly provided by this Code, be prepared by the presiding officer of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of it' pronouncing Jl2 9.6. Although the judgment contains the decision of the court and the reasons for the decision, it does not contain the points for determination. 9.7. To the extent that the judgment does not set out the points for determination, that is, what evidence the prosecutor was supposed to present to prove the charge of rape, the judgment fell short of the requirements of Section 169(1) of The Criminal Procedure Code. 9.8. However, Section 353 of The Criminal Procedure Code, reads as follows: 'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on any ground whatsoever unless any matter raised in such ground has, in the opinion of the appellate court, in fact occasioned a substantial miscarriage of justice: Provided that, in determining whether any such matter has occasioned a substantial miscarriage of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceeding' 9.9. The import of Section 353 of The Criminal Procedure Code, is that even if the trial Magistrate J13 failed to meet the requirements of Section 169(1) of The Criminal Procedure Code, we can only set aside the judgment if we are of the view that the failure led to a miscarriage of justice. 9.10. The offence of rape is defined in Section 132 of The Penal Code, as follows: "Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by persona ting her husband, is guilty of the felony termed 'rape'" 9.11. A judgement in a charge of rape should deal with whether there was evidence proving sexual intercourse between the victim and the offender. It must also deal with whether it was proved that the victim did not consent to that sexual intercourse. 9 .12. In this case, the fact that the appellant had sexual intercourse with the prosecutrix on the material date was not in dispute. The issue that was before the trial court was whether the act was consensual or not. J14 9.13. Since there were no eye witnesses, the trial Magistrate narrowed it down to the resolution of the two conflicting versions of what happened, as was given by the appellant and the prosecutrix. 9.14. It is our view that in the circumstances of this case, the trial Magistrate was entitled to take that position. 9.15. This being the case, we accept Ms. Mwala's submission that even though the judgment did not fully meet the requirements of Section 169(1) of The Criminal Procedure Code, there is sufficient material in it for us to determine whether the trial Magistrate was entitled to come to the conclusion that the prosecutrix's version of events was more credible than that of the appellant. 9.16. It is our view that the said failure by the trial Magistrate did not result in a miscarriage of justice as it is possible to still determine whether there was a basis for him to conclude that the prosecutrix's evidence was more credible than that of the appellant. J15 9.17. This being the case, we find no basis for setting aside the judgment for merely failing to comply with Section 169(1) of The Criminal Procedure Code. 10. CRITICISM OF THE FINDING THAT THE SEXUAL ACT WAS NOT CONSENSUAL. 10 .1. Mr. Mutemwa criticised the trial Magistrate's finding that the sexual intercourse between the appellant and the prosecutrix was not consensual. 10.2. He submitted that had t�e trial Magistrate analysed the appellant's version of events, he could have found that the prosecutrix's claim that it was not consensual could not reasonably have been true. 10. 3. Mr. Mutemwa pointed out that an evaluation of prosecutrix's evidence, which he described as being that of a suspect witness, sug9ests that there was tranquillity at the time the KlOO note got torn. Going by the circumstances of the case, that was improbable. 10.4. Mr. Mutemwa went on to argue that according to the appellant, the prosecutrix's anger was triggered by the appellant's failure to pay the agreed amount of K300. J16 10. 5. He referred to the case of R v. Linekar and submitted that the failure to pay the agreed amount for a sexual intercourse, cannot transform the sexual act into a rape. 10.6. Further, Mr. Mutemwa argued that there was misdirection when the trial magistrate failed to consider the three opportunities the prosecutrix had to escape or her failure to scream. 10.7. He ended by praying that we acquit the appellant pointing out that had the trial Magistrate properly evaluated the evidence, he would have come the conclusion that the sexual intercourse was consensual. 11. RESPONSE TO ARGUMENT THAT THE SEXUAL ACT WAS CONSENSUAL. 11.1. In response to the arguments that the sexual act was consensual, Ms. Mwala pointed out that the distressed manner in which the prosecutrix appeared and the injuries on her vagina, questions such a claim. 11. 2. In addition, the appearance of the prosecutrix with bruises on her neck, is not consistent with sex. consensual J17 11. 3. As regards the failure to flee she submitted that the evidence does not indicate that the car was moving slowly, to enable her flee. 11.4. On the submission that prosecutrix was a suspect witness, Ms. Mwala submitted that the trial Magistrate warned himself of the danger of convicting on her uncorroborated evidence. 12. COURT'S CONSIDERATION AND DECISION ON THE FINDING THAT THE SEXUAL ACT WAS NOT CONSENSUAL. 12.1. As earlier pointed out, in this case, it was not in dispute that there was sexual intercourse between the appellant and the prosecutrix. What was contentious was whether the act was consensual. 12.2. The trial Magistrate resolved the dispute in favour of the prosecutrix, after finding that her account of what transpired was more credible than that of the appellant. 12.3. In the case of GDC Hauliers Zambia Limited v. Limi ted6 Trans-Carriers , the Supreme Court held, inter alia, that: "Findings of credibility are not to be interfered with by an appellate court which did not see and hear the witnesses at first hand" Jl8 12.4. Further, in the case of Malawo v. Bulk Carriers of Zambia Limited7 , the same court pointed out as follows: "Where questions of credibility are involved, an appellate court which has not had the advantage of seeing and hearing witnesses will not interfere with findings of fact made by the trial judge unless it is clearly shown that he has fallen into error" 12. 5. In this case, the trial Magistrate concluded that the prosecutrix's testimony was more credible than that of the appellant because it was consistent. Soon after she appeared at the University, she informed her friends of the attack and that she knew her assailant. 12.6. Her appearance, that is, crying, wig in hand and an unzipped trousers, supported her claim that she had been attacked. 12.7. Mr. Mutemwa has drawn our attention to the fact that the trial Magistrate did not, when assessing the credibility of the prosecutrix' s testimony, consider the possibility that she could have fled or called for help, and yet she chose not to do so. J19 12.8. He also drew our attention to the fact that the prosecutrix created an impression that there was tranquillity at the time the KlOO note was torn. 12.9. We have not come across any evidence to support the proposition that the prosecutrix created an impression that there was tranquillity at the time the KlOO note was torn. 12.10. The prosecutrix's evidence was that she gave the appellant the money after he demanded it and squeezed her neck. 12.11. As regards the failure to flee or call for help, it is our view that the mere fact that the victim of a sexual assault does not flee or call for help, cannot lead to a conclusion that she consented to such assault. 12.12. Such.failure must be considered in context. Much as the prosecutrix may have failed to ran away or call for help, her appearance soon after the act, gave credence to her claim that she had not consented to the act. 12 .13. The prosecutrix's claim that the sexual intercourse with the appellant was not consensual J20 receives further credence from the scratches observed on the appellant's neck soon after the incident. They confirmed her claim that she resisted the attack by scratching him 12 .14. Since the finding that the sexual intercourse between the appellant and the prosecutrix was not consensual ) was anchored on the trial Magistrate's conclusion that prosecutrix was a more credible witness, we cannot interfere with it unless it can clearly be shown that he fell into error when he arrived at that conclusion. 12. 15. In the face of the evidence that we have just outlined, it is our view that the trial Magistrate was entitled to conclude that the prosecutrix's account was more credible than that of the appellant. 12.16. Coming to Mr. Mutemwa's reference to the holding in the case of R. v. Linekar5 and his submission that the refusal to pay after a sexual intercourse, does not render the act a rape, we find that the case is not helpful to the appellant. J21 12.17. Since the appellant's claim that the sexual intercourse was consensual was not accepted by the trial Magistrate, the holding in R. v. Linekar5 cannot be relied on because the accepted facts do not point at the prosecutrix lodging a complaint against the appellant after he refused to pay for having sexual intercourse with her. 12.18. All in all, it is our view that there is no basis on which we can fault the trial Magistrate for finding that the prosecutrix' s evidence of what transpired was more credible than that of the appellant. 12 .19. This being the case, the second limb of the appeal also fails. 13. VERDICT 13.1. Having found that the trial Magistrate's failure to comply with Section 169(1) of The Criminal Procedure Code did not result in a miscarriage of justice and that trial Magistrate was entitled to accept the prosecutrix's version of events and not that of the appellant, we find no merits in this appeal. The appeal fails and we dismiss it. • J22 13. 2. We uphold the appellant's conviction for the offence of rape contrary to Sections 132 and 133 of The Penal Code and the sentence imposed on him. C. F. R. Mchen DEPUTY JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE