Arnold v People (Appeal 126 of 1985) [1987] ZMSC 37 (6 October 1987)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 126 of 1985 TAHIRA ‘JUDA ARNOLD Appellant v » THE PEOPLE Respondent CORAM-' Ngulube, D. C. J., Gardner j.s.^ and Bweupe, Ag. J. S., P. C. Sakala, Director of Legal Aid, for the appellant K. C. Chanda, Senior State Advocate, for the respondent 6th October, 1987 JUDGMENT Gardner, J. S., delivered the Judgment of the ccourt. The appellant was convicted of armed aggravated robber/; the particulars of the charge being that on the 19th of March, 1984, at Kalomo, being armed with a firearm, he did stealone motor vehicle namely Fiat 124 registration No. AJA 1323 valued at K5,000 from Royd Mapill and immediately before or after the time of stealing did use or threaten to use violence. The facts of the case were that PH.2, the driver of the vehicle, took a passenger in his employer’s motor car. On the way the passenger told him to stop and told him to hand over the keys of the car . When he refused to surrender the keys the witness heard a gun shot and he saw that the passenger had a gun. He then handed over the keys and was ordered to get out of the car. He did so, and, when he had run away for some metres, he heard another shot. The vehicle was then driven away. A few days later this witness was called upon to identify a vehicle in the hands of the police. He identified that vehicle as the one that had been stolen from him and he said he saw a bullet hole in the windscreen. 2/ Three.......... Three villagers, namely PW’s 3,4, and 5 gave evidence that on the same day in the morning, some five hours after the reported robbery they saw a man whom they identified as the appellant get out of the vehicle which had stuck in the road, PW.3 said he knew the appellant before, as a relavite of PW.6 who lived in the village, and that he spoke to the man who told him that he was going to get some cattle to pull the vehicle out of the place where It was stuck. When asked to explain properly the appellant ran away. PH.4 said that he also knew the appellant and saw him come out of the vehicle and he also spoke to him. PW,5 said that he did not know the appellant but had seen him earlier on that morning; he said he also spoke to the person, whom he subsequently identified as being the appellant, after he had got out of the stolen motor vehicle. On this evidence the appellant was convicted. The learned Director of Legal Aid on behalf of the appellant put forward three grounds of appeal. The first was that there was no evidence offered other than the word of the owner of the vehicle and her driver as to the ownership of the vehicle. Mr. Sakala argued that, in cases of theft ofltems the ownership of which cah be supported by documentary evidence such as a blue book, such evidence must be produced to establish ownership, Life aredgoftersatlifted that. then (Inees Mpnaay dispute as to ownership, the word of any witness as to that ownership may be accepted by the court without the necessity for production of any documentary evidence. This ground of appeal therefore must fail. The second ground of appeal was that the learned trial judge failed to take into account the possibility of mistaken identity, and there was no proper identification by the prosecutin witnesses. In this respect the learned Director drew our attention to the evidence PW.7, a police officer, who conducted an identity parade. This witness said he cconducted a parade at which four people identified the appellant, whereas only one witness PW.5 gave evidence that he attended such a parade and Identified the appellant. So far as the evidence of this witness is concerned it was of no value whatsoever. The witness sub-inspector Munakopa said that he was detailed to conduct an identification parade in which the accused was a suspect. He brought in eight independent men amongst whom was the accused and during the identification parade the appellant was identified by four witnesses. That was the extent of this witness's evidence. This of course, and was insufficient evidence of an Identification parade^in this respect 3/Mr. Saka la's Mr. Sakala’s criticism was well founded. We will, therefore, look to the other evidence of identification. In this connection Mr. Sakala criticised the evidence of PW.4 who in his evidence in chief said that he himself had spoken to the appellant when he came out of the stolen vehicle, whereas when he was confronted in cross examination about the statement which he had made to the police he agreed that he had only seen PW.3 speaking to the appellant at a distance. It followed there­ fore argued Hr. Sakata, that this witness *s evidence of identification should be treated with great caution, and because the evidence of all these three witnesses, namely PW.3,4, and 5, was that they were together at the time, that caution > must be applied to the other two witnesses, rendering the whole of their evidence, unless supported by independent evidence, as insufficient to support the identificatioa. The third ground of appeal put forward by the learned Director was that there was no evidence that the gun used at the time of the robbery was a firearm within the definition of the firearms Act, in that, without expert evidence, it was impossible to say that the damage found to have occurred to the windscreen of the car was caused by the firing of a bullet. Mr. Chanda on behalf of the State argued that the evidence as to identification at least by PW’ s 3 and 4 was unimpeachable and that even if the evidence of PW.4 were to be Ignored, such evidence of the other witnesses was sufficient to support the conviction. As to the proof of the use of a firearm, Mr. Chanda said that he would leave that matter to the court to decide on the evidence. On examining the evidence of PW.4 it is quite clear that when he gave evidence that he spoke 40 the appellant when he got out of the vehicle this was contrary to what he had originally told the police, which was merely that he heard other people talking. For these reasons we agree with the learned Director that the evidence of PW.4 should have been treated with caution. We do not agree however, that the criticism which could be levelled at this witness affects in any way the reliability of the other two witnesses. Ne agree with Mr. Chanda that the evidence of the other two witnesses was quite sufficient to support the identification of the appellant despite the inadequate evidence as to the identification parade from the police officer, PW.5’s own evidence on that issue was sufficient. We are therefore satisfied that the appeal on the ground that the appellant was not properly Identified must fail. With regard to the question of the proof of possession of a firearm we agree with the learned Director that no lay person can give evidence as to what has caused damage to a windscreen. This is a matter about which an expert witness should have given evidence. In view of the fact that possession of a firearm converts the charge of aggravated robbery into a capital offence calling for the death sentence, it is absolutely essential that in all cases proof of the existence of a firearm must be meticulously r? presented by the prosecution. In this case expert evidence could have been called to show what caused the damage to the windscreen. Such evidence was not forthcoming and in the event we must find that evidence of the existence of a firearm was inadequately proved. The appeal against conviction of aggravated robbery whilst armed with a firearm is allowed. The conviction for that offence is quashed and the sentence Is set aside. In view of the evidence that the appellant was armed with what looked like a firearm, we substitute a conviction of aggravated robbery whilst armed with an offensive weapon and impose a sentence of fifteen years imprisonment with hard labour with effect frcm the 24th of March, 1964. M. S. Ngulube DIBUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE B. K. Bweupe ACTING SUPREME COURT JUDGE