Sinkala and Ors v People (SCZ Appeal 157 of 1987) [1987] ZMSC 75 (1 September 1987)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NOS. 157-160 . OF 1987 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: TEDDY SINKALA, STANLEY TEMBO Appellants GEORGE MAFUNGA & ENOCK MWELWA vs THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner and Sakala JJ. S 1st September, 1987 For the Appellants : Mr. C. Sakala, Ag. Director of Legal Aid For the Respondent : Mr. K. C. Chanda, Senior State Advocate JUDGMENT Sakala, J. S. delivered the judgment of the court. The four appellenats were sentenced to death following upon their conviction for armed aggravated robbery. The particulars of the offence alleged that on 18th October, 1982, at Lusaka, jointly and whilst acting together, and while armed with a firearm, namely a sub-machine-gun, they stole K2,565.91 cash from Steven Menda, the property of Jane Mbombo, and used violence at the time of stealing. The evidence for the prosecution was that at about 19.00 hours on 18th October, 1982 PWs 1 and 4 were selling in Chinyanja grocery in Chunga when four men, one of them carrying a gun, entered the grocery and demanded to be given money. The two witnesses ran out of the grocery. The four men collected the cash box containing the day's taking and left. The four appellants were apprehended on 28th October, 1982. According to the prosecution case a sub-machine-gun with fifteen rounds of ammunition was recovered from the first appellant's hou^e- after a search. On the same date PW5 a sub-inspector conducted an identification parade at which PW1 and PW4 were the identifying witnesses J2 - and the appellants were the suspects. The prosecution evidence is that PHI identified all the four appellants as the people who entered the grocery and robbed him the money at Chinyanja grocery on the evening of 18th October, 1982. PW4 identified the first, second and thrid appellants. He did not identify the fourth appellant. The prosecution also tendered in evidence a warn and caution statement, recorded from the first appellant, after the commissioner ruled it admissible in evidence after a trial within a trial. The warn and caution statement recorded from the other three appellants were admitted in evidence without any objection. The appellants gave evidence on oath in their defence. They all testified that the identifying witnesses had seen them before the identification parade. In his defence the first appellant denied being found with the machine gun. He also denied taking part in the robbery. The second appellant testified that on the 16th of October he had gone to Luangwa and returned on 19th October. The third appellant testified that on 18th October he had just been discharged, from the University Teaching Hospital. He showed in evidence a certificate of discharge from the hospital. He called two witnesses who visited him while he was in hospital. He also denied taking part in the robbery. The fourth appellant also denied taking part in the robbery contending that on 18th October he was at his house. He called a witness who saw him at his house that evening. After a very careful review of that evidence the learned trial commissioner noted that the only evidence against the appellants connecting them with the offence was that of identification at the parade. The learned trial commissioner critically considered the evidence of PW1 which suggested that he had seen the appellants at the police station before the parade. The learned commissioner found that the witness's evidence suggesting that he had seen the appellants was as a result of not understanding the questions properly. He accepted PWHs evidence of identification and he also accepted the evidence of identification as given by PW4. He found that the parade was properly conducted and that the four appellants were properly identified as the persons who committed the robbery at Chinyanja grocery. He also found that the gun produced in court was found in the house of the first appellant and was the same gun used in the robbery. Each of the appellants filed three identical grounds of appeal. On their behalf Mr. Sakala, the Acting Director of Legal Aid, argued two additional grounds, namely, that the learned trial commissioner misdirected himself in convicting the appellants on mistaken identity and insufficient evidence and secondly that the learned trial commissio­ ner misdirected himself in holding a trial within a trial and in using a confession statement against the co-appellants. The submission on the first ground was that the evidence of identification by PWs1 and 4 ought to have been tested. The learned director contended that the discription of the assaiHants as given by the two witnesses was contradictory, and does not tie up. The submission was that there being no further evidence connecting the second, third and fourth appe- lants to the offence apart from the identification evidence the three appellants should have been acquitted. Counsel also argued that the finding of the gun was not good evidence of identification. There was also no evidence that the first appellant was involved in the offence. The contention on the second ground was that the learned trial commissioner misdirected himself after holding a trial within a trial and using the confession against the other co-accused persons. Suffice it to mention that in reacting to the submissions by the learned acting Director of Legal Aid Mr. Chanda on behalf of the state informed the court that he supported the convictions of all the four appellants and that there was sufficient visual evidence of identification against all of them. He contended that PWs 1 and 4 had ample opportunity J4 to look at their "customers" in the grocery. It must be added that the first appellant filed a number of written additional grounds which we have considered. In substance these grounds criticise the learned trial judge's reliance on the confession statement. He also criticises the manner in which the identification parade was conducted, and that there was also no adequate evidence that the gun found in his house was the gun used at the robbery. He also pointed out a number of contradictions in the evidence of PWs 1 and 4. We have very carefully considered the grounds of appeal and the submissions. We have also very carefully examined the evidence on record and the trial court's judgment. We are satisfied that the learned trial commissioner properly identified the issue in the case to be that of identification of the persons who committed the robbery at Chinyanja grocery during the evening of 18th October, 1982. As we see it, the case against the first appellant stands on a different footing from the case against the second, third and fourth appellants. On the common ground of identification we note that the learned trial commissioner made no mention of honest mistake in identification of the appellants. We would also like to observe that according to the evidence on record the police recorded a warn and caution statement from each of the appellants on the 21st of October at the following hours: 15.30 hours a statement was recorded from the first appellant; 15.45 hours a statement was recorded from the third appellant; 16.05 hours a statement was recorded from the fourth appellant and 16.25 hours a statement was recorded from the second appellant. According to the evidence of PW5, who conducted the i dent if-i cat ion parade, he was asked to conduct an identification parade at 15.55 hours. It is quite clear to us that, if PW5 is correct, and we have no reason to doubt; then some of the warn and caution statements must have been being recorded before the parade or during the parade or after the parade. In our view it is then very likely that when PW1 testified that he had seen the appellants at the police station before the parade he must have been correct, and we cannot accept that he misunderstood the questions. In our considered opinion the evidence of identification was unsatisfactory. We consider the parade to have been suspect. In passing, we would also like to observe that the second and third appellants put up the defences of alibi. Their alibis appear to us not to have been considered by the learned trial commissioner. Having found that the evidence of identification was unsatisfactory, we have to see whether there is some other evidence connecting the appellants with the offence charged. As against the first appellant there is a confession which we are satisfied was properly admitted in evidence after a trial within a trial. The confession statement is a complete admission of his part in the robbery. While the first appellant's confession is not evidence against his co-accused it is certainly evidence against him. We are, therefore, satisfied that as against the first appellant, Teddy Sinkala, his confession and the finding of a gun in his house cured the defect in the identification evidence. His appeal cannot, therefore, succeed. The first appellant's appeal against conviction is dismissed and no appeal lies against the mandatory death sentence for armed aggravated robbery. Turning to the second, third and fourth appellants the evidence of identification having fallen away we find no other evidence connecting them with this offence. We find it unsafe to uphold their convictions. The convictions in respect of the second appellant, third appellant and fourth appellant are, therefore, quashed and J6 - the sentences set aside. The appeals of these three appellants are, therefore, allowed. M. M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE