The People v Richard Mpengaula and Ors (HK/48/2020) [2024] ZMHC 311 (17 July 2024)

- . IN THE HIGH COURT FOR ZAMBIA HK/48/2020 AT THE DISTRICT REGISTRY HOLDEN AT KITWE (Criminal Jurisdiction) BETWEEN: THE PEOPLE vs RICHARD MPENGAULA TEDDY NYIRENDA KENNEDY MWANSA LUKA MTONGA PETER KAMBAYENDA .. , . . -- ; COIJPT Of 7 JUL 202 • I:'. t Al A2 A3 A4 AS Before the Hon. Madam Justice Abha Patel, SC. For the State: Mrs. M. G Kashishi Ngulube PSA, Mr. B. Sia fwa State Advocate, Mrs Sara Shawa and Mr B. Z Tembo Messrs. NPA For the Defence: Mr. P. Chavula and Ms. M. Nzala Messrs Legal Aid Board I . RULING ON TRIAL WITHIN A TRIAL Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. Criminal Procedure Code, Chapter 88 of the Laws of Zambia Cases referred to: 1. Chigowe v The People [1977] ZR 21 (S. C) 2. Zeka Chinyama and Others v The People {1980) ZR at 568. 3. The People v Chanda (1972) ZR 157 4. Muwowo v The People (1965) ZR 91 5. Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People {1988-1989) ZR 163 (S. C) 6. John Mwansa and Samuel Mwansa vs The People SCZ/App/No. 170/171 7. R vs Kahyata High Court Northern Rhodesia 1964 8. The People vs B {1980) Z. R. 219 9. Haamenda vs The People (1977) Z. R 184 (S. C) 10. Kalebu Banda vs The People {1977) Z. R 169 (S. C) 11. Chulu vs The People (1969) ZMHC 128 12. Anayawa and Sinjambi vs The People Appeal No.143/144/2011 13. Modester Mulala v The People -SCZ Appeal No. 51 of 2013 14. Joseph Mulenga and Albert Joseph Phiri v The People {2008) 2 Z. R. 1 Ruling- Page 2 of 47 - -- -~ ---- - - - 1.0 Introduction 1.1 Richard Mpengaula, Tedd y Nyirenda, Kennedy Mwansa, Lu ka Mtonga and Peter Kambayenda, Al to AS respectively, were j ointly charged for the offence of aggravated robbe ry contrary to section 294 {2) (a) of the Pena l Code Chapter 87 of the Laws of Zambia committed on the 3rd day of January 2020 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia. The said five accused persons jointly and whilst acting together and whilst armed with a firearm, did steal a copper blister, a chain block, and 4 steel pipes altogether valued at K45,040.00 the property of West Gate Engineering Company and at or immediately after the t ime of stealing did use or threatened to use actual violence to George Kalumba in order to obtain or retain or prevent or overcome resistan ce to its being stolen or retained . 1.2 When called upon to plead, all five (5) Accused denied the cha rges. The Court entered a plea of not guilty and the matter proceeded to trial. 1.3 During the case for the Prosecution, PW12 Evans Simwemba was called, in his capacity as Detective Chief Inspector at Nchanga Police Station of Mufulira. It was his evidence that on 3rd January 2020, he had received a report from Wusakile Police Station that an aggravated robbery had taken place in Luangwa Township. He along with other officers from th e anti robbery department at Kitwe went to Wusakile Police Station. It was his evidence that he was handed a docket from which he noted that male complainant Gilbert Chishala, of house No. AAll Kitwe had lodged a Ruling- Page 3 of 47 complaint to the Zambia Police that his property, name ly, a copper blister was stolen by unknown people, who also stole a chain block and 4 steel pipes . The Copper blister was valued at K60,000.00 and the chain block at KS,000.00 while the steel pipes were valued at K40.00 1.4 He narrated to the Court that they proceeded to Luangwa Township to the scene of crime. At the house No. 1344, he found Steven Chola and George Kalumba, who narrated that the robbery occurred on 3rd January 2020. He testified that he and other police officers who accompanied him, were told by George Kalumba that a person who they knew as Richard Mpengaula, jumped over the wall fence and demanded the key for the gate and when they resisted, he started slapping them. They knew him to be a Police Officer at Wusakile Police Station and gave him the keys after which he opened the gate for his friends. He narrated that they were told that more than 6 peop le entered the yard and one was dressed in police uniform and armed with an AK47 rifle. He was informed that a canter vehicle entered the yard, and the same people loaded the Copper blister, chain block and 4 steel pipes and left with the property. 1.5 It was his evidence before the Court that while still interacting with the two named people, he received intelligence report that the people they were looking for were at a garage near Luangwa bridge. He narrated that they rushed there and found three people seated outside the offices. He said they introduced themselves as officers from the Anti Robbery Squad . According to the witness, they also introduced themselves as Teddy Nyirenda and Ruling- Page 4 of 47 Kennedy Mwansa and Richard Mpengaula, whom he knew was a driver at Wusakile Police Station. 1.6 As the witness continued with his narration, there was an objection from defence counsel Chavula on the ground of voluntariness relating to the oral statements, the leading and written confessions apparently offered by the accused persons, it was the directive of the Court that the issues of voluntariness of the warn and caution statements and the leading be dealt with in a trail within trial. 1.7 Amid adjournments for various reasons, all of which are on record, the trial within a trial, commenced on 1st June 2022 and ended on 20th Ju ne 2023 with a direction issued by the Court for the Defence and the State to file submissions in writing by 30th June and 14th July 2023 respectively. 1.8 The Court having received written submissions from Counsels, extends its gratitude to Counsels respectively for their industry and has duly considered the record, the submissions, which are referred to as appropriate and form the basis of my Ruling below. 1.9 The Court equally extends apologies for the delay in delivering this Ruling caused by several factors, prominent among them being the t ransfer of the Court to Lusaka combined with the delay in obtaining the full transcript of proceedings. 2.0 Evidence of the Prosecution's Witnesses Ruling- Page 5 of 47 2.1 The prosecution called eight (8) witnesses, the first of which was PW13, Evans Simwemba detective Chief Inspector, stationed at Kamuchanga Police Station in Mufulira. He narrated that on the morning of 3rd January 2020, he was on duty leading the Anti Robbery Squad (ARS) in Kitwe and was on patrol within town. While on patrol, he testified that he received urgent information that people who had been involved in an aggravated robbery in Luangwa Township in Kitwe had been seen at the garage of Brian Chiwele in Ndeke Village along President Road guest house near Kafue Bridge in Kitwe. He narrated that they started off towards the said garage and that he called for a back-up team . He testified that he was with Officers N. Kasimbo, B. Mujuku and Damiano Banda in a Toyota Landcruiser ZP 2197 P. He telephoned and called Detective Sergeant Shawa, who was in the company of Detective Sergeant Bwalya, Det Sergeant Banda and Detective Constable Lungu, to provide back-up, in a black Toyota Carola AFB 999. 2.2 He testified that when they all reached the garage for Brian Chiwele, they saw 3 people seated who were believed to be the suspects, namely Richard Mpengaula, Teddy Nyirenda and Kennedy Mwansa . He said off the three men, he knew Richard Mpengaula as a police officer who used to be a driver at Wusakile Police Station. He did not know the other two. 2.3 He narrated that they all introduced themselves and he discovered that all three were police officers, and that A2 was recently transferred to Samfya and that A3 was based at Kamfinsa Police Station. He informed them that they were conducting investigations on a report of aggravated robbery involving a copper blister, a chain block and 4 steel pipes stolen from the Ruling- Page 6 of 47 house of Gilbert Chishala in Luangwa Township. He warned them of their rights, and they proceeded in English as the suspects appeared comfortable in the language. He continued that he asked them to get on to the Police vehicle and that they got into the Landcruiser driven by Det Sgt Kasimbo. He and Al in the middle, sat in front. The other 2 suspects, A2 and A3, sat behind with Officers Mujuku and Banda. 2.4 He further narrated that they were all dressed in civilian clothes and were not armed. The second back-up car was about 50 m behind. He said that as they joined the dual carriage way, they were directed by Al to drive into town . Upon passing Wusakile roundabout and the black mountain, they approached the Traffic Lights on Central Street. He heard Al give directions to the driver (Kasimbo}, to go east along Central Street. He narrated that they saw a white canter joining from the right direction on a gravel road, near Terra Lodge. He stated that they were advised to intercept the same canter by Al. It was his evidence that upon intercepting the canter, they introduced themselves to the driver and occupants of the canter and informed them that they were Officers from the ARS investigating an aggravated robbery that had occurred on 3.1.20, in Luangwa Township. He stated that there were 2 occupants in the canter who introduced themselves as Luka Mtonga the driver, and Peter Kambayenda, A4 and AS respectively. 2.5 He proceeded to inform the Court that Luka Mtonga A4, told them that they had a copper blister, chain block and 4 steel pipes which he said they had been hired to carry to find a market. It was his evidence that the copper blister, 4 steel pipes and a chain block were recovered and that he directed Ruling- Page 7 of 47 them to go with them to Kitwe Police Station w here the fi ve suspects were detained, and named them as Al to AS. 2.6 He further narrated that Gilbert Chishala, the complainant was called to th e Police Station where he came and recognized the items which he identified as belonging to him. He also testified that an identification parade was conducted though he was not part of that process. 2.7 He instructed his Officers to organize rooms from where the warn and caution statements could be recorded . It was his evidence that rooms with in the ARS offices, were arranged, Room 16 and 17 and that Officers proceeded to record the warn and caution statements from the 5 accused persons . The said statements were recorded on 3rd January 2020 between 14:00 and 15:00 hours. He named the Officers as Shawa, D. Banda, F. Banda, E. Lu ngu, 5. Bwalya, B. Mujuku and N. Kasimbo. 2.8 The witness identified and named the 5 suspects and also described and identified the copper blister, the chain block, the 4 steel pipes as well as the white Canter Registration Number BCC 4127. The exhibits were viewed by the Court and marked as follows: 1D4 the Copper blister IDS the 4 steel pipes 1D6 Chain block 1D7 White Canter BCC 4127 Ruling- Page 8 of 47 2.9 Under cross examination, the witness confirmed that though they were out on patrol, they were not armed and that is why they called for a backup team for reinforcement. He confirmed that the junction where they intercepted the white Canter was a busy junction but denied that they inflicted any beatings on any of the suspects. 3.1 PW14 Lackson Shawa testified that he is a Police Officer based at Nkana East Police Station. He narrated that on 3rd January 2020, he was at the ARS under the charge of Evans Simwemba, assigned with 3 other officers, to carry out patrols, namely, Saviour Bwalya, Francis Banda, and Ezekiel Lungu in a private vehicle, a black Toyota Corolla AFB 999. He narrated that he received a call from Evans Simwemba to go to the garage of one Brian Chiwele. It was his evidence that as they parked there, they saw the Police Landcruiser for the ARS come out of the garage and proceed towards the Kitwe/Ndola dual carriageway. He narrated that the Landcruiser turned towards Nkana East and stopped near Turner Lodge where it intercepted a white canter and that they went past the Landcruiser and parked at a distance of about 200 metres. 3.2 He said he saw PW13 Evans Simwemba talking to some people who were in the white canter and saw them heading into town and that they fol lowed them till Kitwe Central Police Station. He was informed of the recovery of and was shown the stolen items and the 5 suspects were taken to the cells, and he was asked to prepare rooms for the warn and caution statements. Ruling- Page 9 of 47 3.3 He described Room 17 in the ARS office as being a rectangular room Smetres by 3 metres with 1 window and 2 openings. He said there were 2 tables, 2 benches and 3 chairs. After preparing the room, he asked Constable Lungu to go with him to bring Al who sat on one of the chairs while he and Lungu sat together. He narrated that after general introductions, he explained to Al that they were carrying out investigations over the case of aggravated robbery that had occurred in Luangwa Township and explained his rights to him . He testified that Richard Mpengaula preferred to proceed with the statement on his own and in English. He sa id the statement took about 5 to 10 minutes and that there were only the three of them in the room, which was well lit and ventilated and that they were dressed in casual civilian attire. 3.4 He identified the warn and caution statement for Al Richard Mpengaula and showed the Court his service number as well as that of the accused and the signature of all three. He noted that he had signed in black in k. The warn and caution for Al was marked 1D20. The witness identified the items, also viewed by the Court, and marked 1D4, to ID7 as identified by the previous witness in paragraph 2.8 above. 3.5 The witness was able to name and identify Al, A2 and A3 though appeared confused with A4 and AS. He clarified his earlier evidence and said they had parked their vehicle inside and not outside the garage and that the warn and caution was recorded between 14:00 and 15:00 hours by which time the accused persons had been in custody for about 3 hours. He also confirmed that they were in a small four-door car and that though they were armed, the guns on the floor and could not be seen as the windows were tinted. He Ru ling- Page 10 of 47 further narrated that at the time the white canter was intercepted, they were parked about 200 metres away and that their role was to provide back-up only. 3.6 Under cross examination, he stated that he was not aware of the presence of CCTV at the garage. He also denied that the 3 suspects were bundled into the back. He said he saw Al in the front while the other two suspects sat in the back. 3.7 He was shown the signature of a relative who had also signed the warn and caution 1D20 and who had said the atmosphere was hostile and tense. He denied both allegations. 4.1 PW15 Ezekiel Lungu testified that he was in the group that was in the backup car with Shawa, Bwalya and F Banda. His evidence mirrored that of PW14, Lackson Shawa and he confirmed that they parked inside the garage of Brian Chiwele and then followed the Police Landcruiser as it left the garage. He narrated that the reason they were called to offer back-up was because the officers in the Police Landcruiser were not armed, and although they were armed, their weapons were not seen by anyone as they maintained a distance from the Landcruiser. 4.2 He narrated in much the same detail the physical set up of Room 17 and confirmed that the walls had pictures of the Edgar Lungu and Kanganja, the then President and Inspector General of Police. He narrated that Al was informed of his rights and that he proceeded to give his statement in English which was signed by the three of them. He confirmed that it was recorded Ruling- Page 11 of 47 between 14:00 and 15:00 hours. He was able to identify ID20 and pointed out to the Court the three signatures and service numbers of all of them. 4.3 The witness also recorded the warn and caution statement from Luka Mtonga A4 and that he and Mujuku (PW18) brought him from the holding cells and took him to Room 16. He described this room as a well-ventilated office with no firearms in sight, and with similar pictures of the President and the Inspector General. It had one table and 4 chairs and that A4 sat next to Mujuku and opposite him. He was informed of his rights, and he opted to proceed with the warn and caution statement which was recorded in English, and which was read back to him. The Accused and Mujuku then signed the statement. He confirmed that they were dressed in civilian clothes and were not armed. He identified the signatures in blue ink and the statement was marked ID21. He was also able to identify all the five accused persons though he could only refer to A3 as 'Mwansa'. 4.4 In similar fashion as the other witnesses, he was able to describe and identify to the Court the items recovered and marked as ID 4 to ID7. 4.5 Under cross examination, he denied any allegations that Al, A2 and A3 were beaten and bundled in the back of the Landcruiser. He denied beating A4 and AS with a baton and denied taunting them in any way. He denied that the warn and caution was conducted by Kamamba though he could not point to his signature on page 1 or 2 of ID21. Ruli ng- Page 12 of 47 5 .1 PW16 Saviour Bwalya testified that he was at the material time, a Police Officer at the ARS in Kitwe. He recalled that on 3rd January 2020, he was in the back up vehicle, which was described by the other witnesses. He confirmed that he, together with Shawa, Lungu and F. Banda were armed and that they received a call from their team-leader, Evans Simwemba at about 9:00 hours to provide back-up, at the garage of Brian Chiwele, along Presidential guest house Road. He narrated that they rushed there, found the gate was open, and gave cover from a distance of about 50 to 100m metres. It was his evidence that he later saw Simwemba and others go towards the Polie Landcruiser and that Al sat in between Kasimbo who was driving, and Simwemba. He recognized Richard Mpengaula as they worked together and are colleagues. He also recognized A2 and A3 as work mates and narrated that they sat at the back, with Mujuku and Damiano Banda. 5.2 He described how they followed the Landcruiser till it intercepted a w hite Canter which was being driven by Luka Mtonga who was with Peter Kambayenda, A4 and AS respectively. He narrated the same details as the other prosecution witnesses and that they parked near the graveyard at a distance of about 200 metres and followed them back to Kitwe Police Station, where they received instructions to carry out the warn and caution statements from the accused person. He also described the recovered items. 5.3 He and Damiano Banda brought Teddy Nyirenda A2 into Room 17 whose physical description and detail was simi lar to that described by Lackso n Shawa and Ezekiel Lungu PW14 and PW15. He explained his rights which were understood and signed and thereafter proceeded to record the Ruling- Page 13 of 47 statement which was also signed by Teddy Nyirenda and him and D. Banda. He pointed out the signatures on the statement marked ID22. 5.4 He was also able to identify the recovered stolen items which have been described and identified by the prosecution witnesses as ID 4 to ID7. 5 .5 Under cross examination, he denied any allegations of torture and beatings being inflicted on A2. He was also challenged as to who between F. Banda and D. Banda had witnessed the warn and caution statement for A2. He was questioned on other aspects of his evidence, and which differed from that of Ezekiel Lungu . He was also questioned why a video recording was not used for the purpose of the warn and caution . 6.1 PW17 Damiano Banda testified that he was a Police Officer stationed at Kitwe District Police Station. He narrated that on the material day, he was in the described Police Landcruiser with other Officers named as Simwemba, Mujuku and driven by Kasimbo. He narrated that they were not armed and that he and Mujuku sat in the back. He testified how they went to the garage of Brian Chiwele and that the found 3 suspects who he knew as Al, A2 and A3 and knew them to be police officers. His evidence matched that of the other occupants in the Police Landcruiser, namely Simwemba and Mujuku and narrated how they were seated in the Landcruiser and up to how the white canter was intercepted and how they apprehended A4 and AS. He explained that Simwemba introduced everyone and the reason for the interception relating to the case of aggravated robbery of the named items. Simwemba gave them a verbal warn and caution and the five suspects were driven and detained at Kitwe Police Station. Ruling- Page 14 of 47 6.2 He described Room 17 and confirmed that he witnessed the warn and caution for Teddy Nyirenda A2. He identified ID22 and pointed at the signatures of all three persons. He also identified all five accused persons. He described and identified the exhibits marked ID 4 to ID 7. 6.3 Under cross examination, he was taken to task as to why officers from the ARS were not armed while on patrol. He explained that in some patrols they were armed, while it was normal to not be armed also. He was also questioned as to why the scenes of crime officer did not conduct a video recording of the warn and caution statements as well as the leading. He denied beating any of the suspects and could not confirm if they had been offered food at all. 7.1 PW18 Brita Mujuku testified that he was a Police Officer based at Wusakile Police Station and spoke to events of 3rd January 2020. To the extent that he was part of the team with PW13 Evans Simwemba, his evidence was similar to that already placed before the Court. He confirmed that he was seated at the back of the Police Landcruiser with Damiano Banda and that Evans Simwemba and Kasimbo were in the front and the vehicle was being driven by Kasimbo. He narrated that at the garage of Brian Chiwele, he recognized Richard Mpengaula Al whom he knew to be a police officer from Wusakile. He also knew him from Kasama. He was with two other persons. He narrated that Simwemba conducted introductions and gave the three persons a verbal warn and caution in English, of the matter under investigation and that Al stated that he could lead them to where the copper bl ister and other items were kept. Ruling- Page 15 of 47 r 7.2 He narrated that they then got into the Police Landcruiser and that two of the suspects A2 and A3 sat in the back with him and Banda and Al sat in between Simwemba and Kasimbo in the front. He testified that he got to know the names of Teddy Nyirenda and Kennedy Mwansa after the warn and caution was administered by Simwemba. After they intercepted the white canter, they all got out of the Police Landcruiser and he saw two people in the white canter, who after a verbal warn and caution, in bemba, by Simwemba, he got to know as Luka Mtonga who was driving the white canter and Peter Kambayenda, A4 and AS. Luka Mtonga showed them the copper blister, chain block and steel pipes which were in the canter and told them that they had been given the items by Al, A2 and A3. 7.3 He proceeded to describe the warn and cautions that w ere administered at Kitwe Police Station and that he witnessed the statement that was recorded from Kennedy Mwansa A3 in Room 17 which was conducted by Kasimbo. His evidence as to the set up and the physical description of Room 17 is on record and similar to that offered by the other prosecution witnesses. After his rights were explained to him, A3 proceeded to give his statement which was recorded and signed by the three of them. He narrated that Kennedy Mwansa raised no complaints at the end of the process. He also confirmed that he and Kasimbo were dressed in civilian clothes and were not armed. He identified all five accused persons and was able to describe the warn and caution statements of Kennedy Mwansa and Luka Mtonga as being the ones that he had witnessed. The warn and caution for Kennedy Mwansa A3 was marked as ID 23. Rul ing- Page 16 of 47 7.4 The witness also narrated that he was part of the warn and caution that was recorded in Room 16 conducted by Ezekiel Lungu for Luka Mtonga A4. Again, he described Room 16 and the proceedings and confirmed that after the statement was signed by all three of them, Luka Mtonga raised no complaint. This statement was identified as 1D21. 7.5 The witness also identified and showed the Court the exhibits already marked 1D4 to 1D7. 7.6 Under cross examination, the witness was asked if they were armed, which he denied. He confirmed that he was part of the team that did the patrol that morning and that he went to the garage of Brian Chiwele. He denied any allegations of beatings and confirmed that a verbal warn and caution was administered on the three suspects that they found at the garage. He also maintained that both Rooms 16 & 17 were properly arranged for the purpose of the warn and caution statements and that there were no graphic images on the walls nor were there any firearms in sight. 8.1 PW 19 Francis Banda was a police officer based at the ARS in Kitwe, and was part of the group that was in the black Toyota Registration Number AFB 991 that was called to be the back-up vehicle to the team that was in the Police Landcruiser. His evidence was similar to that of PW14, Lackson Shawa, PW15 Ezekiel Lungu and PW16 Saviour Bwalya. He narrated how they were called by the Officer in Charge of ARS, Evans Simwemba to a certain garage in Nd eke Township. He testified that they parked outside the garage and started trailing the Police Landcruiser when it came out, at a distance of about 100 metres. His evidence described how the white canter was intercepted and Ruling- Page 17 of47 how the group got onto the Police Landcruiser and their car followed them back to Kitwe Police Station, where he ca me to know of the incident of aggravated robbery, the suspects and the items that were allegedly stolen. 8.2 He narrated that the Officer in Charge, Evans Simwemba instructed him to record a warn and caution statement from Peter Kambayenda AS, which was witnessed by Damiano Banda. He described the set up and physical layout of Room 17 which was similar to that of all the other prosecution witnesses. He described how he informed Peter Kambayenda of his rights and that he opted to proceed to give his statement in bemba, which he recorded in English. He narrated that AS had no complaint in the manner the warn and caution took place and also confirmed that they were dressed in civi lian clothes and were not armed. He described the warn and caution statement and pointed out the signatures of the three of them and this was marked ID 24. He was also able to identify the five accused persons and identified the objects referred to as ID 4 to ID 7. 8.3 Under cross examination, he stated that they were parked outside the garage for a few minutes before the Police Landcruiser drove out. He stated that Peter Kambayenda asked to use bemba and ID24 was recorded in English and without a certificate of interpretation. He denied that the suspect was beaten or made to sit on the floor. 9.1 PW20 Nicholas Kasimbo was a police officer based at the ARS in Kitwe. He narrated that he was the driver of the Police Landcruiser, that the group was in civilian clothes and not armed. He confirmed that as he was driving, Evans Ruling- Page 18 of 47 • Simwemba received a call wherein he was informed that the suspects in the case of the aggravated robbery were seen at Brian Chiwele's garage along Presidential Street in Ndeke Township. The rest of his evidence is on record, and in all material respects, similar to that of Evans Simwemba, Damiano Banda and Brita Mujuku. 9.2 He narrated that the driver of the canter said that they were given the items by Al also known as 'wrangle'. He proceeded to describe Room 17 and confirmed that he conducted the warn and caution for Kennedy Mwansa A3 and that this was witnessed by Mujuku. He narrated that after introductions were exchanged, he asked the suspect if he had eaten and he answered in the affirmative. He informed him of his rights, informed him of the charge of aggravated robbery and he proceeded to record a statement from Kennedy Mwansa, which was then read back to him and all three of them signed it. He identified the statement, which was recorded in his handwriting, written in black ink, and pointed at the signature of Mujuku and Kennedy Mwansa, A3. This statement was identified and marked 1D23. 9.3 As with the other prosecution witnesses, he was able to identify the 5 accused persons and also described which of them had sat where in the Police Landcruiser and that Al sat in between him and Simwemba and that he gave directions which he followed until they intercepted the white Canter. He testified that that Luka Mtonga, A4 was driving the white canter and told them that Richard Mpengaula had given them the copper blister. He also described the items previously identified and marked 1D4 to ID 7. Ruling- Page 19 of 47 - 9.4 Under cross examination, he was questioned as to whether he was aware of the presence of CCTV cameras at the garage and which car entered and which remained outside. It was also put to him that Evans Simwemba did not inform the three accused persons of their rights. He denied having bundled the three suspects in the back and denied any beatings being inflicted on them. 9.5 This marked the close of the Prosecution's case. 10.0 Evidence of the Defence Witnesses 10.1 DWl Richard Mpengaula, the first accused person (Al} in the case before this Court, confirmed that he was 33 years of age and a police officer under general duties. It was his evidence that on 3rd January 2020, he was at a roadside night club with Teddy Nyirenda A2, in Wusakile Township, drinking soft drinks when they got a call at about 03:00 am from someone called 'biggie' who asked for a lift. He narrated that he went with Teddy Nyirenda to pick him, and another person called 'Tema' who wanted to visit his child in Luangwa. It was his further evidence that they drove the two men there in a black car which belonged to Teddy Nyirenda and passed through a night club where a lady called 'Mpundu' complained of noise from a neighbour's house where they appeared to be grinding or cutting something. It was his evidence that a police officer always being on duty, he and Teddy Nyirenda, using the same car went to the stated house. He narrated that he was well known in Wusakile, Luangwa and that some of the people at that house who Ruling- Page 20 of 47 saw him ran away. He entered the yard and saw a copper blister which had a deep cut in it, and he also saw some cutting discs. 10.2 He narrated that he spoke to a lady from the main house called 'bona davey' and told her that he was going to take the copper blister and gave her his number. He said that he rang someone called Landile and asked for the Landcruiser from Wusaklie Police Station but that it was not in service. He then apparently rang the CCPU at Wusakile Police Post and asked for a number of someone else with a vehicle. He said he rang a man called Lu ka Mtonga who is A4 in the action. According to his evidence, a lot of people helped to load the copper blister and other items in to the white canter that was driven by Luka Mtonga and he and Teddy Nyirenda were in the Mark X and by about 6am, they dropped off Terna and Biggie at the Community Centre at Luangwa Junction . It was his evidence that he had instructed Luka Mtonga to take the copper blister to Kitwe Central Police Station but that the canter ran out of fuel on the Kitwe/Ndola dual carriage way. 10.3 He continued with his evidence that they asked someone called 'Mwansa' who lived near the road to bring a container, and that while he was explaining to him, his phone rang and Chiwele rang him to ask him about the property that he had taken from his garage. It was his evidence that he knew of Chiwele but that he had not met him before and decided that since they were three police officers, they would go back to his ga rage and take him with them to the Police Station. He said Chiwele gave him directions to Ruling- Page 21 of 47 his garage and they went there and found 5 people, Chiwele and 3 others and a child . 10.4 He narrated that as they greeted each other, some other officers from the ARS arrived and started beating them and the other 3 people at Chiwele's garage also started beating them. He narrated that they were thrown into the back of the Police Landcruiser and were beaten all the way. According to him, someone took the keys for Teddy Nyirenda's car but that person had not appeared before the court. He named certain officers and stated that others such as Mujuku, Shawa and Francis Banda were not there and that Kasimbo had told lies about them. He said they were taken to Kitwe Police Station and that his uncle, Christopher Mpengaula, had seen Simwemba and Kasimbo and others beat them with the butts of their guns. 10.5 He narrated that the canter arrived later, and they were ordered to remove the copper blister from the canter. According to his evidence the five suspects were severely beaten and warn, and caution statements recorded from them while being beaten and they were then taken for the identification parade. He said that he was not given any food or drink and denied that he voluntarily led them to the white canter. 10.6 It was further his evidence that the warn and caution took place in Room 17 and he said that the room had graphic pictures on the walls and notice board and that they were all armed. He stated that he was beaten by Simwemba, Kasimbo and 2 others. He narrated that his uncle saw him being beaten in the Police Landcruiser while he was travelling in a bus. He Ru ling- Page 22 of 47 said that Shawa took him to the clinic where a record was opened, and he was given some pain killers. 10.7 The witness was subjected to a lengthy and detailed cross examination which is on record, and which the Court will analyse in its reasoning later in the Ruling. 11.1 DW2 Teddy Nyirenda stated that he was a police officer and narrated events that occurred on 3rd January 2020. He said he was with Richard Mpengaula at Roadside nightclub at 03:00 am in the morning. He said Richard Mpengaula asked him to go to the community development centre to pick up two of his friends from Kasama who had come to attend a workshop. After picking up the two friends, they wanted to go to Luangwa Township, and they bought some drinks from Moreglass Nightclub in the same township. He stated that they were in his black Mark X which he was driving. According to his evidence, while at the nightclub, a lady known as 'bona Mpundu' knew him from Luangwa Police Station complained about a neighbour who cuts things at night and causes disturbance and that she had complained but that nothing had come out of her complaints. 11.2 He narrated in his exact words: "that being a police officer who is ever on duty" he decided that she should take them there with Richard Mpengaula and Biggie and Tema. He said all the people scampered seeing Richard Mpengaula who they referred to as 'bona wrangle' and that they opened the gate and entered the yard. He said they saw a copper blister and some cutting discs, a chain block and some pipes. According to him, Richard Ruling- Page 23 of 47 Mpengaula called 'Lindalie' who is a police officer at Wusakile Police Post to ask for a car which was not working, and he was given a number of someone who owns a canter. He said they wanted to take copper blister as they feared that it would be tampered with. It was his evidence that Richard Mpengaula contacted someone with a canter and a person that he did not know, called Luka Mtonga A4 came to the premises. He said the canter reversed into the yard and a lot of neighbours gathered to help load the coper blister and other items into the canter and they started off for Kitwe Central Police Station. 11.3 He stated that they did not take the confiscated property to Luangwa Police Station or others which were nearer because they had been told by Bona Mpundu that the same people were well known to the Police, and they thought it best to go to Kitwe Police Station. He said it was about 6:00 am . As they were driving, the canter ran out of fuel near the traffic lights on Central Street and they rang Kennedy Mwansa A3 and asked him to bring fuel in a container. At the same time, Richard Mpengaula had received a phone call from Brian Chiwele whose property they had recovered and decided to put the issue of fuel on hold and go to Brian Chiwele's garage to apprehend him. He narrated that Richard Mpengaula gave him directions and the three of them drove to the garage of Brian Chiwele and that the guard let them in. 11.4 He stated that they had just entered and were exchanging greetings, when 6 officers from ARS entered. He said he had known them from other joint operations and named them as Evans Simwemba, Saviour Bwalya, Damiano Ruling- Page 24 of 47 Banda, Ezekiel Lungu, Issac Mtonga and Kasimbo. He said Simwemba had a pistol and the others all had AK47 rifles and that they started beating them with the butts of the guns. He said they were bundled into the back of the Police Landcruiser and Issac Mtonga took his car keys and phone . He narrated that the Landcruiser stopped and picked up two other people at Central Street, Luka Mtonga and one other person that he did not know. 11.5 He stated that they were split up and taken to different offices and he was taken to Room 17 at the ARS and that all five of them were beaten badly. He described the office as having pictures of dead and injured criminals. He said he asked for a lawyer and Simwemba came and threatened that they would move him to Kalulushi Police Station and that he became scared and gave his statement. He stated that Saviour Bwalya recorded his statement and that they knew each other. He said his statement was not offered freely, that he was beaten and confused, his family was not called, and he was not offered food or water and said Bwalya had a gun on the table. 11.6 His evidence was extensively challenged under cross examination, which is on record and will be analysed later in the Ruling. 12.1 DW3 Kennedy Mwansa was a police officer at Kamfinsa Mobile Unit. His evidence was that he was at home at about 08:00 am in the morning and he got a call from Richard Mpengaula Al, who said he needed a container for fuel at Wusakile. He got a container and took it to them at Puma Filling Station where Teddy Nyirenda explained about the copper blister they had recovered and that the canter used to carry it had run out of fuel. At the Ruling- Page 25 of 47 same time, Richard Mpengaula had received a phone call from Chiwele who asked them to apprehend one of the people who had run away. He said they went to the garage for Brian Chiwele and the gate was opened for them and they found 5 people in the office. It was his evidence that officers from the ARS entered and started beating them and threw them in the back of the Police Landcruiser. He alleged that they were all badly beaten and attempted to show a scar on his left arm to the court which he attributed to Ezekiel Lungu. 12.2 He narrated that they left the garage and drove towards the traffic lights at which point they threw Luka Mtonga and Peter Kambayenda into the back of the Police Landcruiser. He said the beatings continued at the ARS office although he told them that he had been working at Kamfinsa Upper Tank. He said they were forced to remove the copper blister from the canter and that he was taken to Room 17 and was beaten by handles. He said Kasimbo recorded the statement from him and that there were frightening pictures on the walls of that office which were used to threaten and intimidate. He said both Kasimbo and Mujuku had guns and forced him to confess and say that he was part of the group. He was forced to sign the statement and later taken for an identification parade . 12.3 The details of the cross examination are on record and the Court will analyse this in its Ruling. 13.1 DW4 Luka Mtonga was a driver at Wusakile Police Station in Kitwe. He narrated that on 3rd January 2020, between 3 and 4 am, he received a call Ruling- Page 26 of 47 from Richard Mpengaula, 'bona Wrangle ' who drives a landcruiser at Wusakile Police. He wanted a canter to load some things that had been recovered at Luangwa . The witness told him that he was low on fuel and was given directions to the place in Luangwa. He narrated that he reversed the canter into the driveway and that other people came to help them load the things into the canter. He said he was engaged to transport goods from one place to another and as they started driving to join the Ndola Road, the canter jerked and ran out of fuel at the Nkana East Central Street traffic lights. He said the others were following in the Mark X and as they drove up to him, he told them what had happened. He said they pushed the canter towards Nkana East facing the traffic lights and he remained alone in the canter. 13.2 He narrated that a brown Landcruiser came with a lot of police officers carrying guns and with its siren on. He said he was handcuffed, threatened and was beaten by the officers. He said they took him and Peter Kambayenda into the Landcruiser where he saw 'bona Wrangle ' and 2 other men. They were then taken to the office of the ARS and were beaten with handles and butt stocks. He was forced by Ezekiel Lungu to sign a statement in an office that had pictures of dead people and he was intimidated. He denied that he was driving the canter and denied having been allowed to call his family. 13.3 The cross examination of the witness is on record and will be analysed by the Court later in the Ruling. Ruli ng- Page 27 of 47 .. 14.1 DWS Peter Kambayenda was Accused No. 5 and his evidence was that he was a brick maker and also involved in selling sand . He narrated that while waiting for a customer early in the morning, he went to Central Street where he saw a canter parked at the Traffic Lights with its hazards on. Of relevance is his narration that he asked the driver about the availability of the canter but was told the canter had run out of fuel. According to him, they negotiated a price to ferry 3 loads of sand and the driver told him that he was waiting for the Police who had recovered some items which were in the canter. Apparently, the driver A4, told him to wait with him so that he could attend to his work after dropping off the items at the Police Station . 14.2 He narrated that a Landcru iser drove up to them with Police Officers who were armed. They rushed to remove the driver and started to rough him up. He said Lungu looked into the car and opened his side of the door and started to beat him up. He said they were piled into the Landcruiser and he was particularly beaten by Lungu using a handle though he did not know why he was being beaten. He narrated that Officer Banda threatened him and showed him photos on the walls and said that's what they wou ld do to him . He stated that they wrote something and made him sign and then took him for an identification parade. He said PW2 identified him, he could not recall the time and confirmed that they had not eaten anything and were later taken to enquiries and locked up. Ruling- Page 28 of 47 14.3 He denied having been informed of his rights, and said he asked for a phone but that it was denied. He also said he had been beaten and narrated that his customer found him at Wusakile Police station a week later. 14.4 The witness was subjected to extensive cross examination, which evidence is on record and will be analysed by the Court. 15.1 DW6 Christopher Mpengaula was the last witness for the defence. He stated his name and address for the record, and said he was engaged in informal business. It was his evidence that on the material day, 3rd January 2020, he was traveling from home to town, seated in the front-seat of a Noah vehicle. It was his evidence that he saw a Landcruiser and an un registered Mark X driving at high speed and almost caused a collision with the vehicle he was in. 15.2 It was his evidence that he went out to confront them and saw them heading towards a canter from which they removed the driver and co driver and threw them on to the floor. He narrated that he was at a d istance of about 5 metres away, and that he did not know them. According to him, a lot of people had gathered to watch and the two men from the canter were lifted and thrown into the Landcruiser like a bag of potatoes . He narrated that he saw Richard Mpengaula and Teddy Nyirenda Al and A2 respectively, lying down in the Landcru_iser. He confirmed that Richard Mpengaula was his nephew. He narrated that the Noah vehicle started to follow the Landcruiser and that he saw about 6 Police Officers with guns beating the people in the Landcruiser using gun butts and kicking them. He Ruling- Page 29 of 47 said that he disembarked at the Savage Yard and the Landcruiser went to the Police Station and he followed. 15.3 He stated that he forced his way into one of the Offices of the Anti-Robbery Squad, where he found all five accused persons on the floor while the Police Officers were seated on the bench. He alleges that he was threatened and pushed out of the room, though he forced his way back and found his nephew Al, crying, bleeding from his nose and with a swollen face. He stated that he received a phone call from his brother, the father of Richard Mpengaula and was told that a lawyer was on his way. He claimed that he was told by a young man, who he did not name or identify, that his mentioning a lawyer, angered the Police Officers. It was his evidence that he went out to receive a phone call and left his sister, Jane Mpengaula to stay with Richard Mpengaula Al. He said when he returned to the Room, the warn and caution statement for Richard Mpengaula 1D20 had been signed by Al and the Police Officer had already signed it and he was also made to sign it. 15.4 The cross examination of this witness, like the rest, is on record and will be analysed by the Court later in the Ruling. 15.5 This marked the close of the defence and the end of the trial within a trial. 16.0 Submissions by the Parties Ruling- Page 30 of 47 The defence filed its submissions on 30th June 2023, and the Prosecution on 9th August 2023, each supporting the position taken by them respectively. The Court extends its gratitude to Counsel on record for their industry and diligence and will refer to the submissions received in the context of analysing the evidence before the Court. Needless to say, the Court will not repeat or narrate the submissions in their entirety, save to say that they have been fully considered and appreciated and form part of the record. 17 .0 Findings of Fact I caution myself that the trial court must clearly make findings of fact. It w ill not be sufficient for the trial court to say, "I do not believe the accused. 11 The trial court must set out reasons and details for not believing the accused to enable the appellate court to ascertain the mind of the trial court when it made that ruling. A short ruling without detailed findings and ruling, amounts to no ruling. At this stage of my determination, it is critical for me to arrive at find ings of fact, after analysing the voluminous evidence that has been placed before me. However, I will address facts of particular importance to my mind, which are the following: 17.1 The offence of aggravated robbery occurred on the 3rd day of January 2020. 17.2 Al Richard Mpengaula was a Police Officer under general duties. A2 Teddy Nyirenda was a Police Officer at Wusakile and a resident of Wusakile. Ruling- Page 31 of 47 A3 Kennedy Mwansa was a Police Officer with Kamfinsa Mobile Unit and residing in Miseshi in Wusakile District. A4 Luka Mtonga was a driver resident in Wusakile Kitwe AS Peter Kambayenda was a brick maker, a resident in new Malimbeka Kitwe. 17.3 The four recovered items which were identified by all the prosecution witnesses are ID4 the Copper blister, IDS the 4 steel pipes, ID6 the Chain block and ID7 a White Canter, registration number BCC 4127. 17.4 The Police vehicle which was used to pursue the suspects was a Toyota Landcruiser registration number ZP 2197 P. Its four occupants were Evans Simwemba PW13, Damiano Banda PW17, Brita Mujuku PW18 and Nicholas Kasimbo PW 20. 17.5 The back up vehicle was a black Toyota Corolla, registration number AFB 999. Its four occupants were Lackson Shawa PW14, Ezekiel Lungu PWlS, Saviour Bwalya PW16 and Francis Banda PW19. 17.6 The five warn and caution statements were conducted and recorded in Rooms 16 & 17, at the Office of the Anti-Robbery Squad (ARS) at Kitwe Central Police Station. 17.7 The statements, the subject of this trial within trial, were recorded on 3rd January 2020, marked as follows: ID20 statement of Al recorded in Room 17, conducted by Lackson Shawa and witnessed by Ezekiel Lungu and Christopher Mpengau la. Ruling- Page 32 of 47 ID21 statement of A4 recorded in Room 16, conducted by Ezekiel Lu ngu and witnessed by Brita Mujuku. ID22 statement of A2, recorded in Room 17, conducted by Saviour Bwalya and witnessed by Damiano Banda. ID23 statement of A3, recorded in Room 17, conducted by Nicholas Kasimbo and witnessed by Brita Mujuku. ID24 statement of AS, recorded in Room 17, conducted by Francis Banda and witnessed by Damiano Banda. 18.0 Analysis of the Law and evidence before the Court 18.1 I now move to analyse the evidence of the 14 witnesses and apply the principles of law to the facts of the case at hand. Having heard from 8 prosecution witnesses, the five accused persons, and their witness, it is my task to critically examine the circumstances leading up to the day on which the confession statements were recorded from the five accused persons. 18.2 I am alive to the fact that not only am I pronouncing on the admissibility of the statements recorded from the five accused persons, but also on the fact of leading the Police to the discovery, and subsequent interception of the white canter ID7 and the property, the subject of the charge of aggravated robbery. 18.3 The evidence of PW13 Evans Simwemba, gave the background of how they were alerted to go the garage of Brian Chiwele in Ndeke Village, along Presidential Road guest house near Kafue Bridge in Kitwe . His evidence has already been cited at paragraph 2 above. Of relevance is the fact that he Ruling- Page 33 of 47 ... was in the company of Damiano Banda, Brita Mujuku and Nicholas Kasimbo, and that they were on a normal morning patrol, when they received information that suspects who had bene involved in an incident of aggravated robbery were at the garage of Brian Chiwele. His evidence that he called for a backup team has been noted, which explains the presence of the other four Police Officers, as per the finding of the Court in paragraph 17.5 above. His evidence that they entered the garage and found Al, A2, & A3 was also confirmed by the other Officers. I accepted his evidence on the introductions made and the fact of giving them all a verbal warn and caution. This was also the evidence of the other three Officers who were with him and was not challenged by any of the Accused persons. 18.4 Defence Counsel Mr Chavula, in cross examination, suggested that the presence of the CCTV at the garage of Brian Chiwele would confirm that the Police Officers had barged into the garage and started beating the three accused persons they found there. However, CCTV footage not having been presented, the Court finds that the evidence presented by Evans Simwemba as to the introductions, the verbal warn and caution subsequent leading to the discovery of the white canter is more credible in the circumstances. The evidence of how they sat in the Pol ice Landcruiser was also more credible in the circumstances. I accept as a fact that the Police Landcruiser was driven by Nicholas Kasimbo and that Al was seated in the middle with Evans Simwemba to his side. The other two suspects A2 & A3, were at the back with Brita Mujuku and Damiano Banda. Ruling- Page 34 of 47 18.5 It has been noted by the Court that all accused persons narrated that they were senselessly beaten from the garage of Brian Chiwele to the time the warn and caution statements were recorded from them. This evidence appeared rehearsed, and totally out of context. I also accept the evidence that the first group of Police Officers were not armed and more the reason that they called for a back-up vehicle with extra Police Officers, who were armed. 18.6 The Court has also heard with interest the version of events narrated by Al and A2 who stated that at about 3:00am on the morning of 3rd January 2020, he (Richard Mpengaula) and Teddy Nyirenda were at a roadside nightclub in Wusakile Township, where they were chatting and drinking soft drinks. 18.7 The rest of his evidence related to a telephone call that he received from someone called "Biggie" and "Tema", who said they were near Kafue Bridge and asked him to pick them up. He further narrated that Tema wanted to visit his child in Luangwa and that apparently while there, they passed through another nightclub where a woman' he referred to as "Bona Mpundu" complained of noise from a neighbor's yard who was cutting and grinding metal at night. According to him as a Police Officer, he is always on duty and that he and Teddy Nyirenda took it upon themselves to go to the place complained of, in Luangwa, to investigate the report. He narrated, almost showing off, that he was well known in the area, and people scampered away after they saw him. Ruling- Page 35 of 47 18.8 He further mentioned that he decided to confiscate the property that they found, namely the copper blister, a grinder and some cutting discs, and that he gave his telephone number to a woman called "Bana Davey" who he found at that house. He apparently called " Landile 11 and asked for a Landcruiser from Wusakile Pol ice Station but was informed that it was not working. His evidence was that he then decided to call someone called " Luka" to come with his canter to take the confiscated property to the Police Station. 18.9 His entire line of evidence did not find any favour w ith the Court. I do not accept that he and A2 were sitting around chatting at 03:00 am and drinking soft drinks, after which they went to pick up named people, with whom they went to Luangwa, at about 04:00am to purportedly visit someone's child, and in another nightclub, they bumped into a supposed complainant, on whose verbal complaint, they rushed off to investigate the complaint. What is also of interest to note, is that he did not call any of the several people, Biggie, Tema, Bana Mpundu, Bana Davy or Landile, that he named to confirm this line of evidence. 18.10 I am of the considered view that all this evidence was fabricated to tell a story to justify how they found themselves at the house from which they took the property. His version of events does not fit into the role he purported to play, being that of a diligent police officer, carrying out investigations, made by an alleged complainant, that they met in the middle of the night, at a nightclub. He could not answer why they had by passed several Police Stations, and at least 3 named Police Posts or why Ruling- Page 36 of 47 they were attempting to buy fuel for the Canter from their personal resources or why they had not lodged an official police re port on the matter at hand. 18.11 He also confirmed that he knew where the white Canter was and yet purported to deny that he led the Police to it. The Court has also noted the evidence of PW20, Nicholas Kasimbo, the driver of the Police Landcruiser, who gave details of how Al was seated between himself and PW13 Evans Simwemba and gave very detailed evidence as to the directions he was given by Al which led to the interception of the white Canter. In the circumstances, I make a finding that Al led the Police to the white Canter and the subsequent discovery of the items marked 1D4 to 1D7. His version of events just does not fit in, is not credible and is far-fetched. I observed material differences in his evidence in chief and under cross examination. 18.12 The evidence of Teddy Nyirenda A2, was almost similar to that of Al, including the version of Al being referred to ' Bona Wrangle' and people running away from the scene. His evidence in fact confirmed that they used force to enter the gate and also confirmed their intention to remove the copper blister and place it into the white canter that was driven by A4. According to him, after they managed to load the copper blister and other items which have been mentioned in paragraph 17.3, they did not go to the nearby Police Stations, and opted to go to Kitwe Central Police Station. He said this was because Bona Mpundu told them it was of no use to go there as no action would be taken. Similar to the evidence Al, I received this evidence as being untrue and fabricated to suit the situation. It lacks Ruling- Page 37 of 47 - credibility and to suggest that two Police Officers, acting on an unofficial complaint, would go to such extents in the middle of the night, to simply conduct their own private investigations, using their own private vehicles and resources, is neither credible nor plausible in the circumstances . I reject this line of evidence outright. 18.13 It is trite that in a trial within a trial where the Prosecution did call 8 witnesses and the Defence called 6, namely the 5 accused and the uncle to Al, there are a lot of discrepancies in the evidence that was brought before the Court. It is however the Court's task to sift through the mountain of evidence and scrutinise the issues central to whether the warn and caution statements, the subject of this Ruling, were offered freely and thus admissible, or whether they were so heavily tainted with impropriety, and ought thereby to be excluded. 18.14 Credibility of the witnesses and their evidence especially under cross examination, is a preserve of the Trial Court who has had the opportunity to observe the witnesses, their demeanour and their ability to offer consistent and credible evidence. PW13 Evans Simwemba remained calm and narrated evidence from what he saw and observed. PW14 Lackson Shawa, equally confirmed that Al sat in front between the named Officers and led them to the interception of the white Canter. Lackson Shawa was calm, credible and was not ruffled even under cross examination. PW15, Ezekiel Lungu confirmed in almost the same manner the evidence of the other prosecution witnesses and remained calm and steadfast throughout his evidence. PW16, Saviour Bwalya, remained steadfast, consistent and Ru ling- Page 38 of 47 - was impressive in his demeanour. His evidence was received by the Court as being an accurate reflection of the events of the day in question. PW17, Damiano Banda, was equally impressive, remained calm and his evidence that on the material day, he and his colleagues in the Landcruiser were not armed is accepted by the Court. PW18, Brita Mujuku, remained calm and confident. His demeanour was affable, and his evidence was clear as to facts on the ground. He was in the first group of Officers at the scene. His evidence was credible, and he appeared to hold no grudge with any of the accused persons. PW19, Francis Banda remained calm and consistent, and clearly explained his role in the recording of the statements. PW20 Nicholas Kasimbo, the driver of the Landcruiser, narrated how and when they reached the garage of Brain Chiwele and narrated the verbal warn and caution and testified that Al sat in between him and PW13, Evans Simwemba, and that Al gave directions which he followed until they intercepted the white Canter. His evidence was equally well received by the Court for being consistent and credible and reflected the evidence offered by the other prosecution witnesses. 18.15 The Court has noted that the defence has suggested that the lack of video confession recordings, should be evidence that the written warn and caution statements were not freely and fairly recorded. The Court does not accept this line of submission as they have not referred to any mandatory provision to support this submission. I am inclined to accept the evidence of the prosecution witnesses on the issue of the verbal warn and caution and leading. They had nothing to gain, no personal vendetta or grudge with Ruling- Page 39 of 47 - the accused persons, more especially that three of the five accused persons, are known Police Officers in the Kitwe District. 18.16 I move my analysis to the issue of the circumstances under which the warn and caution statements were recorded at the Police Station. Paragraphs 17.6 and 17.7 noted above, relate to the two offices, Room 16 and 17, from where the warn and caution statements were recorded. From the evidence tendered, I make a finding that the two Rooms were properly prepared for the recording of the warn and caution statements. The defence has attempted to submit on the discrepancy in the evidence of the prosecution witnesses on the issue of whether there were offensive pictures on the walls of the two rooms used for the purpose of recording the warn and caution statements. On page 2 of its submission, the defence have simply stated that whilst some prosecution witnesses confirmed the presence of offensive pictures on the walls generally, another prosecution witness testified that the offensive pictures on the walls had been removed. I have not found any contradiction in the evidence offered by the Prosecution witnesses. To this extent, I find that the two rooms, used for the purpose of the warn and cautions statements, had been sufficiently prepared for the purpose. 18.17 It has also been maintained that the accused persons were denied food and water during the interviews. The Court has however noted that the events of 3rd January 2020, starting from the garage of Brian Chiwele, to the leading and interception of the white Canter, to the time of the warn and caution statements being recorded, cannot be said to be so long as to have Ruling- Page 40 of 47 been unfair or prejudicial on the accused persons. Al himself confirmed that his uncle and Aunt were present when the warn and caution statements were recorded. They could just as easily have ensured that food and water was provided or brought for the accused persons. 18.18 On the issue of the alleged beatings at the hands of the Police, A3, Kennedy Mwansa attempted to show some scars to the Court. These were not visible and could just as easily have been scars left from childhood vaccinations. There was simply no evidence to substantiate that claim. As for the Al who confirmed that he was taken by Lackson Shaw a to the Clinic, there was no evidence produced nor any clinical Officer called as witness to either confirm the fact of the beatings allegedly inflicted or the attendance at the clinic. In similar fashion, DWS Peter Kambayenda, testified that he was so severely beaten that he went to the clinic on severa I occasions. According to his evidence, he was using a second book to record his treatment. He however failed to produce either the books or call any clinical officer to support his evidence of the alleged beatings sustained at the hands of the Police. He was hesitant and almost belligerent in his evidence to the Court. Without hesitation, I find that the evidence of beatings sustained at the hands of the Police to be fabricated and without support. 18.19 Reverting to the use of Rooms 16 & 17 where the warn and cautions were recorded, DW3 confirmed under cross examination that he had been to those rooms several times . He also confirmed that as part of the duties of a police officer, it was common for them to see and handle dead bodies Ruling- Page 41 of 47 .. including attend post-mortems, when required. He also confirmed that he and other police officers know how to use firearms and that there was noting that could have induced fear in them as seasoned police officers when they were taken to Rooms 16 & 17 for the purpose of recording the warn and caution statements. He also confirmed that he was apprehended at 09:00 hours in the morning. His evidence completely discredits any and all insinuations of them being scared, traumatised or under duress in the rooms that were used. It also discredits the fact that they were deprived of food and water, having only been in custody for a few hours before the statements were recorded. 18.20 It has also been noted that the uncle, DW6, who purported to testify that he saw his nephew Al and A2 being beaten from wh ilst in a moving vehicle in which he was a passenger, wanted the Court to believe that he went to confront a police vehicle for the manner in which it was being driven. He stated that the Landcruiser was not a police vehicle. This Court has already made a finding that the Toyota Landcruiser registration number ZP 2197 P was in fact a Police veh icle. According to his evidence, A4 and AS were made to lie down on the ground. This was not the evidence of A4 and AS. 18.21 He also referred to the driver of the Noah vehicle in which he was a passenger, having followed the Police Landcruiser, and who allegedly also witnessed the beatings that were being inflicted on the accused persons. According to his evidence, this driver apparently knew A3. The Court has noted that all this evidence was so fanciful, and that the driver of the Noah was not called to support the evidence of beatings at all. In any event, the Ruling- Page 42 of 47 evidence of people being beaten with gun buts and handles, whilst in a moving. Police Land cruiser, is so far from being credi~le and is dismissed. 18.22 He also testified that he heard people being beaten in the rooms where the warn and caution statements were being recorded. His evidence that he forced himself into the rooms, was not confirmed by the accused persons themselves. In one breath he stated that the Police Officers were all holding AK47 guns, and in the other breath, he stated that he forced himself into the room and at the same time, said he was consumed with fear. Which is which? He could not name or refer to any particular prosecution witness who allegedly threatened or frightened him. He also stated that he did not take any pictures or videos of the alleged beatings as his phone did not have the capability to make recordings or take pictures. I ask myself that if he claimed to be a witness who saw the beatings, why did he suddenly leave the room where Al, his nephew, was giving his statement, to apparently answer a telephone call. He then confirmed that he freely and without coercion, signed 1D20, which is the warn and caution statement of Richard Mpengaula Al. I reject his evidence in its entirety for being contradictory, fanciful and inconsistent. 18.23 In the case of R v Kahyata (High Court, Northern Rhodesia, 1964) Charles J opined that: "The application of the law relating to incriminating statements is, no doubt, one which places a heavy burden on the police in conducting their investigations. Nonetheless, it is in my opinion, of constitutional Ruling- Page 43 of 47 v- importance, far transcending the proof of guilt of guilty individuals, that it be not whittled down and that it be applied by the courts strictly; to do otherwise will open the door to the inquisition and Gestapo, and to police usurping the functions of the courts." 18.24 In the case of The People v B (1980), it was held that: (i) It is a fundamental principle of criminal law that when an accused raises an objection to the introduction of a confession into evidence, alleging that it was not made freely and voluntarily on account of assaults, · threats or inducements, the burden of proving that a confession is voluntary is on the prosecution and at no time does this burden shift to the accused. (ii) The basis of the admissibility of a confession is voluntariness and not the truth of the content in the statement. 18.25 As stated above, the burden of proving the voluntariness of the confession beyond reasonable doubt lies on the prosecution. This was further confirmed by the Supreme Court in the case of Anayawa & Sinjambi vs The People. 18.26 This Court is guided by the principles highlighted in the case of Zeka Chinyama and Others v The People . It is trite that when dealing with an objection to the admission of an alleged confession, the trial court must first satisfy itself that it was freely and voluntarily made; if so satisfied, the Court in a proper case must then consider whether the confession should Ruling- Page 44 of 47 in the exercise of its discretion be excluded, notwithstanding that it was voluntary and therefore strictly admissible, on the ground that in all the circumstances the strict application of the rules as to admissibility would operate unfairly against the accused. 18.27 It would appear from a close reading of the case above and the guidance issued by the Supreme Court, that I shou ld adopt a two staged approach to determine the issue of the admissibility of the confession statement allegedly made by the accused. In the first stage, I need to satisfy myself that the confession statement was itself freely and voluntarily made, and secondly, if I am so satisfied, I must move to consider whether the confession should in the exercise of my discretion be excluded, notwithstanding that it was voluntary and therefore strictly admissible. 18.28 It is important to note as I do, that the circumstances in which the reception of evidence would operate unfairly against an accused wi ll depend on the facts of the particular case and do not lend themselves to precise definition. The discretion ought to be exercised in favour of the accused where, but for the unfair or improper conduct complained of, the accused might not voluntarily have provided the evidence in question or the opportunity to obtain it. 18.29 I am further guided by the Supreme Court, in its detailed analysis of the practice adopted by a trial court, in the case of Chinyama v The People in dealing with an objection to the admission of an alleged confession. Rulin g- Page 45 of 47 18.30 I am also alive to the fact that in a trial-within-a-trial, the burden and standard of proof of the voluntariness of a confession statement is on the prosecution and has to be beyond reasonable doubt. 18.31 In the case of Chigowe v The People the conviction of the appellant rested solely on a confession statement. Commenting on the burden and standard of proof, the Supreme Court had this to say: "At a trial-within-a-trial to determine the voluntariness of a confession, the prosecution must negative beyond reasonable doubt, any form of inducement which might have caused the accused to make the confession." 18.32 From the detailed analysis of the evidence and from the findings made by the Court, I come to the inescapable conclusion that the warn and caution statements marked ID20, ID21, ID22, ID23 and ID24 were freely and fairly recorded. 19.0 Conclusion I am reminded of the guidance issued by the former Court of Appeal, the predecessor to the current Supreme Court, when it guided in the case of Muwowo vs the People as follows: "At the trial within trial the prosecution must negative beyond all reasonable doubt any form of inducement which might have caused Ruling- Page 46 of 47 the accused person to make a statement. .. The prosecution must prove beyond all reasonable doubt that a confession was made voluntarily." I do not have to interrogate every aspect of the evidence offered by the witnesses, to find inconsistencies or make findings of fact on every issue laid before the Court. Suffice it to state, as I do, that I am satisfied and hold the considered view that the Prosecution has discharged its burden beyond reasonable doubt, and has established that the statements, made by the accused persons, and sought to be produced in evidence, were freely and voluntarily made. I will allow the written confession statements marked ID20, ID21, ID22, ID23 and ID24 into evidence. Delivered at Kitwe, this ./.'. ... day of July 2024. Lady Justice Abha N. Patel, S. C. Sitting as High Court Judge Ruling- Page 47 of 47