Mushoke v The People (Appeal 148 of 2010) [2014] ZMSC 117 (9 July 2014)

(710) SCZ Judgment No. 31/2014 IN THE SUPREME COURT OF ZAMBIA 148/2010 HOLDEN AT NDOLA Appeal No. (Criminal Jurisdiction) BETWEEN: STEVEN MUSHOKE APPELLANT AND THE PEOPLE RESPONDENT Coram: Chirwa, Ag. DCJ, Chibomba and Phiri, JJS On 1st March, 2011 and 10th July, 2014. For the Appellant: For the Respondent: Mr. M. N. Chomba, Chief Legal Aid Counsel Mr. C. F. R. Mchenga, Director of Public Prosecutions JUDGMENT Phiri, JS, delivered the Judgment of the Court Cases referred to: 1. George Musongo vs. The People (1987) ZR 266 2. Shamwana and 7 Others vs. The People (1985) ZR 41 3. 4. 5. Jack Chanda and Another vs. The People SCZ Judgment No. 29 of 2002 Chimbini vs. The People (1973) ZR 191. Benson Phiri and Sonny Mwanza vs. The People (2002) ZR 107. J1 When we heard this appeal, the Hon. Mr. Justice D. K. Chirwa was part of the Court. He has since retired. This is therefore, a (711) majority judgment. The appellant, Steven Mushoke, was charged with the offence of Murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. He was tried, convicted and sentenced to death by the High Court sitting at Mongu. The particulars of the offence alleged that the appellant, on the 28th day of April, 1994 at Mongu, in the Western Province of the Republic of Zambia, murdered Charles Kashembe Simonwa. The prosecution’s evidence was mainly canvassed from PW1, Charity Njekwa Mutakela; PW2 Namakando Mutakela and PW3, Kambimbi Momba. Briefly, the undisputed facts were that the appellant was known to PW1, Charity Njekwa Mutakela with whom they previously shared a love affair that ended in 1990. On the 28th of J2 April, 1994, at about 19.00 hours, she was at her house together with PW2, Namakando Mutakela. Later, they both saw the (712) appellant, who came to their house and assaulted Mate, PW2’s child. The child fell on the fireplace. This happened in the presence of other people, who included PW3 and other young men who came to the place to drink beer. After the appellant’s assault on PW2’s son, she hit him with a piece of wood following which he ran away. The appellant came back later with a piece of wood with which he wanted to assault his brother, Simakando. The boys who were at the scene intervened and chased the appellant away. Later, they all retired to bed. According to PW1, the appellant, during the night, returned to her house. He called PW1’s name twice while she and PW2 were sleeping. PW1 peeped through the door. Time was around 23.00 hours and there was bright moonlight. She observed the events, through moonlight and recognized the person who had come to her door J3 as the appellant. He had taken his shirt off and was half naked. While the appellant tampered with PW1’s door, PW3, whose house was ten meters away, heard the noise and asked (713) PW1 about it. PW3 threatened to assault the appellant who, again ran away. At about 06.00 hours, the next morning, the body of the deceased was discovered lying at about 30 to 50 meters away from PW1’s house. The deceased was PW1’s cousin. Both PW1 and PW2 observed some stab wounds; and the deceased’s throat had been cut. There was no pool of blood at the scene. PW1 and PW2 also discovered that there were two cracks on the front door of the house in which they slept. There were some bloodstains on both cracks. PW7, the Scenes of Crime Officer attended to the deceased’s body and observed deep wounds which he narrated to the trial J4 Court. A Police photographic album which was admitted in the trial Court shows the stab wounds sustained. According to PW7, when he attended to the deceased’s body, he observed that the wounds appeared to have been cleaned up. There were no struggle marks or bloodstains around the body. The eyes, nose and mouth were filled with sand. He concluded that the decease received two injuries at the back, whilst standing, walking or running. (714) PW8, the Officer who investigated this case, testified that the appellant confessed to him. He produced the appellant’s written confession statement after a trial-within-trial. PW5 discovered the deceased’s body early in the morning. PW6 testified that the appellant, when confronted, confessed to those present and to the Police. PW6 told the Court that he was present when the appellant confessed to killing the deceased and proceeded into his house from which he emerged with a blood- stained home made knife which he said was the weapon he had J5 used. According to PW6, the appellant produced the knife from inside his house in the company of a Police Officer who had escorted him there. When put on his defence, the appellant elected to remain silent, which he was perfectly entitled to do. This was after he had testified on oath in the trial-within-a-trial. After considering all the evidence before him, the learned trial Judge convicted the appellant on the basis of the testimony of PW1 and PW2 and on the basis of the appellant’s alleged confessions to PW1, PW6 and PW8. The (715) learned trial Judge accepted PW1’s evidence that she was the appellant’s girlfriend. The learned trial Judge cautioned himself regarding the evidence of PW1, PW2, PW3 and PW5 as witnesses with a possible interest to serve. However, he found the evidence of these suspect witnesses, to have been supported by the testimony of PW4 and PW6 to the effect that the accused admitted killing the J6 deceased and produced the knife which he had used. The learned trial Judge particularly observed that PW4 and PW6 were related to the deceased and therefore, their evidence also needed to be treated with caution. The trial Court accepted the evidence of PW8’s recovery of the blood-stained knife as supporting evidence. The Court ruled out provocation as a defence on the basis that the appellant did not find PW1, his girlfriend, in a compromising position – “flagrante de licto” with the deceased. The Court also found that in any event, the injuries inflicted on the deceased, with the use of the exhibited knife, showed that the force used was excessive in comparison to (716) the nature of the provocation. Having convicted the appellant of Murder, the Court further concluded that there were no extenuating circumstances in this case. The appellant was sentenced to suffer death. J7 Dissatisfied with the conviction, the appellant has appealed to this Court advancing three grounds of appeal. These are as follows: 1) 2) 3) that the learned trial Judge erred in law and in fact in admitting a confession statement before delivering a proper Ruling after conducting a trial-within-trial. that the learned trial Judge erred in law and in fact in considering the appellant’s alleged admissions which were given in breach of the Judges’ Rules. in the alternative to the foregoing ground, that the learned trial Judge erred in law and in fact when he failed to find extenuating circumstances so as to impose any other sentence other than the mandatory death penalty. In support of this appeal, Mr. Chomba, learned Counsel for the appellant, relied on the arguments in the appellant’s Heads of Arguments which he supplemented with oral submissions. In support of Grounds 1 and 2, Mr. Chomba argued that the trial Judge, in his Ruling delivered at the close of the evidence in the (717) J8 trial-within-a-trial, did not resolve the issues which arose from the evidence as to the voluntariness of the confession statement; and did not give any reasons or detailed Ruling. Learned Counsel submitted that the burden of proof lies on the prosecution to prove to the required standard that the confession statement was voluntary; that the trial Court ought to have resolved why it believed the evidence of the prosecution against that of the appellant and give its reasons for so doing. Learned Counsel argued that this was a misdirection. It was further argued that the prosecution witnesses called in the trial-within-trial, never told the trial Court that they complied with Rule 3 of the Judges’ Rules by explaining the appellant’s rights. This should have been the basis for the Court to use its discretion to exclude the alleged confession statement. In support of this submission, Mr. Chomba cited the case of Shamwana and Others vs. The People(2). It was further argued that the Police knew that the appellant was a Murder suspect, but never warned and cautioned him after they found him at his residence. They J9 (718) went ahead to interview him after which he made the admissions in question. Counsel specifically referred to the evidence of PW4, at page 9 of the record and PW6 at page 16 of the record. Learned Counsel referred us to the case of George Musongo vs. The People(1) where this Court held as follows: “Failure on the part of a Police Officer to administer a caution constitutes impropriety in respect of which a trial Court may exercise its discretion in favour of the accused, similar failure on the part of any other person in authority (or indeed anybody else) does not necessarily amount to an impropriety as it cannot reasonably be expected that a person, other than a Police Officer, should of necessity appreciate the incentives of what should, and should not be done in such circumstances.” Mr. Chomba invited us to consider that this is a proper case in which the trial Court should have exercised its discretion in favour of the appellant; and that the admission should be disregarded and expunged from the record. Counsel further submitted that if Grounds 1 and 2 are upheld, there is no other J10 evidence against the appellant who must be acquitted and set at liberty. (719) As indicated earlier, the third ground was argued in the alternative to grounds 1 and 2. Learned Counsel argued that there was evidence on the record that the appellant had been drinking beer (page 3 lines 11 and 12). It was also on record that the appellant was of a youthful age (aged 28 years); and that arising from the appellant’s confession, the trial Court considered the defence of provocation, which failed. Learned Counsel referred us to this Court’s decision in the case of Jack Chanda and Another vs. The People(3) where it was held that: “Failed defence of provocation, evidence of witchcraft accusation and evidence of drinking can amount to extenuating circumstances”. Learned Counsel submitted that when all these factors were put together, they constitute extenuating circumstances, which J11 the trial Court ought to have accepted in order to impose any other sentence other than the mandatory death penalty in accordance with Section 201(2) of the Penal Code, Chapter 87 of the Laws of Zambia. Counsel argued that failure by the trial Court to do so was a misdirection. (720) On the other hand, the learned Director of Public Prosecutions supported the appellant’s conviction. He argued that the conviction in this case was largely dependant on a confession which the learned trial Judge correctly admitted after conducting a trial-within-trial. On Ground 1, the learned Director of Public Prosecutions argued and submitted that there was nothing irregular in the trial- within-trial when the trial Judge indicated in his Ruling that he would give his full reasons for admitting the confession in his Judgment which, indeed, he did. On the argument that the appellant’s confession was admitted when it had been obtained in breach of the Judges’ J12 Rules, the learned Director of Public Prosecutions counter-argued that the Judgment itself says that the confessions made at the scene of crime were not taken into account, but the Judge took them into account after holding the trial-within-trial. (721) Ground 3, which was argued in the alternative, was that there were extenuating circumstances in this case which the Court should have considered before imposing the death penalty. The learned Director of Public Prosecutions argued in response that the appellant exercised his right to remain silent and that being the case, there was no evidence before the trial Court which showed any failed defence that would warrant the trial Court to come to the conclusion that there were extenuating circumstances in this case. We have considered the grounds of appeal, the written Heads of Arguments and the submissions before us. We have also considered the Judgment of the Court below. We propose to deal with the grounds in the order they were argued. J13 The first ground alleges that the trial Judge erred in law and in fact when he admitted the appellant’s confession statement before delivering a proper ruling after conducting a trial-within- trial. According to the record of proceedings, the appellant’s statement to the Police was admitted as part of the prosecution’s evidence after it was offered into evidence by PW8. Before the statement was (722) admitted, the appellant objected to its admission on the ground that he admitted the charge of Murder because he was beaten before the statement was recorded. A trial-within-trial was conducted after which the learned trial Judge admitted the confession statement and stated that he would give the reasons for admitting the statement later. The learned trial Judge gave his reasons for admitting the confession statement in the Judgment, at page J6. The reasons given were two, namely; that the statement was recorded by the Police so soon after the appellant was brought to the Police Station on the same day; and J14 that he was satisfied that the appellant was not tortured to confess. We do partly agree with Mr. Chomba’s criticism of the manner the learned trial Judge dealt with the trial-within-trial as failure to give the reasons at the conclusion of the trial-within-trial for admitting the confession statement there and then was a clear misdirection. The cavalier approach to give his reasons for admitting the confession statement in the main Judgment of the Court was clearly a misdirection. (723) This Court has made a number of pronouncements concerning the proper conduct and purpose of a trial-within-trial. Some of the pronouncements can easily be found in the following cases: 1. Edward Kunda vs. The People (9171) ZR 99. 2. Hamfuti vs. The People (1972) ZR 240. 3. Daka vs. The People (1972) ZR 70. 4. 5. Tapisha vs. The People (1973) ZR 222. Chigowe vs. The People (1977) ZR 21. J15 6. Mudenda vs. The People (1981) ZR 175. There is no definition of the term “Trial-within-Trial” in our Criminal Procedure Code. The mode and purpose of such trials is also not provided. In practice, trials-within-trial form part of our practice and procedure in the administration of criminal justice. This practice and procedure evolves from the practice of the English Common Law which forms the foundation of our criminal justice regime. The trial-within-trial is a trial during the main trial, intended to determine a specific issue in the main trial. It is an interlocutory or preliminary hearing with all the characteristics of (724) the main trial. It is interlocutory and preliminary in the sense that it is heard and determined before the main trial is concluded. In relation to confessions, the purpose of holding a trial- within-trial in the main trial is to determine the voluntariness of a confession statement when the issue of its admissibility is objected to by the accused or the defence Counsel. When an J16 objection is raised, the main trial must be halted. The prosecution then may apply for the holding of a trial-within-trial or dispense with the confession statement altogether. When the prosecution dispenses with the alleged confession, then it does not form part of the evidence although it will remain part of the witness’s statements under the summary committal procedure in the High Court. In that event, the main trial must resume and the trial Court is obliged to completely ignore the alleged confession statement in deciding the case. But when the prosecution requests for a trial-within-trial, the evidence, as in the main trial, will be adduced regarding all the circumstances in which (725) the alleged confession was obtained. The defence will also have a right to adduce evidence. The burden of proof rests entirely on the prosecution and the standard of proof required is beyond reasonable doubt. In other words, the prosecution must prove the voluntariness of the J17 alleged confession beyond reasonable doubt. At the close of the trial-within-trial, submissions may be made by both sides and the Court is obliged to deliver its ruling. Once the test of voluntariness fails, the alleged confession becomes inadmissible. It also follows that if voluntariness of an alleged confession statement is not in issue, a trial-within-trial is not necessary. In that event, the question of whether the accused made or signed any statement becomes a general issue to be decided in the main trial on the basis of the totality of the evidence received by the Court. In the present case, the learned trial Judge admitted the appellant’s alleged confession statement soon after the appellant’s evidence in the trial-within-trial and without rendering a formal ruling giving reasons why the alleged confession statement was (726) admitted. Reasons were offered in a single paragraph of the trial Court’s final Judgment. J18 As we have already stated, the learned trial Judge completely mismanaged the trial-within-trial by admitting the confession statement without giving reasons there and then thereby prejudicing the appellant on the alleged confession and proceeded as if no objection had been raised. The procedure adopted by the learned trial Judge was a misdirection and completely contrary to the guidance given by this Court in the afore-quoted decisions. We will return to the effects of this misdirection later. The second Ground of appeal attacked the trial Court’s acceptance of the appellant’s alleged admissions which he made in breach of the Judges’ Rules. According to the evidence on record, the appellant’s admission was heard by PW4 and PW6 who later accompanied Police Officers who searched the appellant’s house. PW4 and PW6 were the deceased’s uncle and elder brother, respectively. They lived in the adjacent villages with the appellant and the deceased. They took part in apprehending the appellant J19 (727) and were present when the Police came to search the appellant’s house and take the appellant away for detention at the Police Station. It was apparent from the evidence given by these two witnesses that they were not Police Officers. They were ordinary villagers of Nandopu village where the murder occurred. PW4 reported the murder to the Police and came back to the village with the Police in the company of a medical Doctor. Clearly, PW4 and PW6 cannot be expected to have appreciated the incentives of what should or should not be done in such circumstances when they were in contact with the appellant after the murder was discovered. As we held in the George Musongo case(1), failure on the part of PW4 and PW6 to observe the Judges’ Rules cannot amount to an impropriety. We find no merit in Ground 2 of the appeal. Ground 3 criticized the failure by the learned trial Judge to find extenuating circumstances and impose any other sentence J20 other than the mandatory death sentence. Mr. Chomba’s argument was that there was evidence that the appellant had drunk some (728) beer (page 3 of the record of appeal lines 11 and 12) and that there was a failed defence of provocation. The record of appeal shows that when the appellant was put on his defence, he chose to remain silent. Whilst we appreciate that the appellant was perfectly entitled to his right to remain silent, we must observe that in doing so, the appellant forfeited a perfect opportunity to properly advance his intended defences of drunkenness or provocation; whether those defences succeeded or failed was another matter. It was at that stage that the appellant would have adduced the evidence of his beer drinking spree, if any, and/or that he suspected the deceased to have visited or flirted with his girlfriend, and therefore, that he was provoked into doing what he did. J21 In the absence of any specific defence of provocation or drunkenness, the Court below had no duty to look for an explanation that fitted the appellant’s intended defences. This notwithstanding, the Court below went so far as to consider the appellant’s possible defences arising out of the confession (729) statement, which, as we have already stated, was wrongly admitted. Reference to the appellant’s statement during the trial-within-a-trial and reference to his alleged confession was an error and should not have been resorted to in the Court’s final judgment as the position should have simply remained that the appellant elected to remain silent in his defence. Coming back to the effects of the misdirection with regard to the admission of the confession statement, we note that the cornerstone of the Court’s judgment consisted of the totality of the evidence received. The Court did not entirely rely on the written confession statement, which, as we have already stated, was a misdirection. J22 According to the evidence on record, the appellant was well known to the prosecution key witnesses, namely, PW1, PW2, PW3, PW4 and PW6. PW1 and PW2 recognized the appellant during the night. They heard his voice outside their adjacent houses and saw him through bright moonlight. The evidence from PW1 was that the events begun earlier in the night around 19.00 hours when the (730) appellant came to PW1’s house and assaulted her nephew who was very young. The small boy fell into the fireplace. The appellant was confronted by PW1 and her sister who got a stick and hit him. The appellant ran away. He later came back with a stick, but was chased for the second time. The appellant again came back to PW1’s house around 23.00 hours. He called PW1’s name twice and tampered with PW1’s front door. On this occasion, the appellant had no shirt on and was confrontational. The appellant was again confronted and chased by PW3. Early the next morning, the J23 deceased’s brutally murdered body was discovered around the area about 30 to 50 meters away from PW1’s house whose door had been attacked by the appellant during the night. The Police recovered the murder weapon from the appellant’s house at the time they searched it. The recovery was witnessed by PW4 and PW6. This case rests on the evidence of recognition, which we have always said is stronger than evidence of identification of a stranger. The appellant was known and was recognized by PW1, PW2, PW3, (731) PW4, PW5 and PW6. The collective evidence by these witnesses together with the recovery of the murder weapon in the appellant’s house, with bloodstains on it, as well as the odd coincidence of bloodstains on the door of PW1’s house, in our considered view, presented overwhelming evidence against the appellant. This overwhelming evidence clearly outweighs the misdirections which we have found. What we are saying is that notwithstanding the trial Court’s misdirections pointed out above, J24 our conclusion is that the appellant’s conviction was well supported by overwhelming evidence which we have narrated. We find no merit in this appeal and it is dismissed. We uphold the appellant’s conviction for the murder of Charles Kashembe Simonwa and the appellant’s sentence of death. (RETIRED) D. K. Chirwa AG/DEPUTY CHIEF JUSTICE JUDGE H. Chibomba SUPREME COURT G. S. Phiri SUPREME COURT JUDGE J25