The People v Simusiku Sibulwa and Anor (HP/102/2020) [2020] ZMHC 422 (6 October 2020)

,r ,. HP/102/2020 vs. SIMASIKU SIBULWA CHRISTOPHER BWALYA -\ BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, ON THE 6TH DAY OF OCTOBER, 2020, IN OPEN COURT. For the People: Mr. V. Chango - State Advocate, National Pros ecutions A uthority. For the Accu sed : Mr. A. K. Longwe and Ms. M. Marabesa - Pro Bono Counsel and Legal Aid Counsel, Legal Aid Board JUDGMENT CASES RE FERRED TO: I. Mwewa Murano u The People Z. R. 207 SC; 2 . Woolmington u DPP 1935 AC 462 HL; 3. Yotamu Haameenda u The People (1977) Z. R. 184; 4. David Zulu u The Peop le (] 977) Z. R.15,· 5. Douglas Mpofu and Washington Magura u The People (1988) S. J.; 6. Zeka Chinyama and others u The People6 (1 997) Z. R. 426; 7. Boniface Chanda Cho/a and Another u The People (1988/ 89) Z. R. 163; 8. J ohn Mwans a and Another u The People- SCZ/ APP/ No. 170/ 171/2014; 9. Green Musheke K uyewa u The People (1996) S. J.8 (S. C); 10. Simutenda u The People (1975) Z. R. 294; 11 . R u Sharmpal Singh (1962) AC 188; 12. flunga Kalaba and John Masefu u The People (1981) Z. R. 102 (SC); J l I P age 13. R v Baldrey (1852) 2 Den. Cr. 120; and 14. Tapisha v The People (1 973) Z. R. 222. LEGISLATION REFERRED TO: 1. The Penal Code, as Amended by Act No. 17 of 2007, Chapter 87, Volume 7 of the Laws of Zambia; and 2. The Criminal Procedure Code, Chapter 88, Volume 7 of the Laws of Zambia. OTHER WORKS REFERRED TO: 1. M. N. Howard, Phipson on Evidence, 14"' Edition, London Sweet & Maxwell Ltd (1990). BACKGROUND 1.1 The accused persons Simasiku Sibulwa and Christopher Bwalya stand charged with two counts of Vandalism contrary to Section 341 D (1) (2) (a) of The Penal Code1 . 1.2 The particulars of offence in the first count are that Simasiku Sibulwa and Christopher Bwalya, on 26 th December, 2019, at Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together with others unknown did vandalise 15 meters x 2 duplex cables valued at K693.00, by cutting off 16mm x 15 meters of 2 core duplex cables from the points where they connect the house to the pole at farm No. 22195/M, in Lilayi area, the property of Zambia Electricity Supply Corporation (ZESCO), a public property essential for or incidental to the provision of necessary supply of electricity to the public. 1.3 The particulars of offence in the second count are that Simasiku Sibulwa and Christopher Bwalya on 4 th November, 2019, at Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst J2 I Page acting together with others unknown, did vandalise 15 meters x 2 duplex cables valued at K693.00, by cutting off 16mm x 15 meters x 2 core duplex cables from the points where they connect the house to the pole at farm No. 12525, in Lilayi area, the property of Zambia Electricity Supply Corporation (ZESCO), a public property essential for or incidental to the provision of necessary supply of electricity to the public. 1.4 The accused persons denied the charges and pleas of not guilty were recorded. THE PROSECUTION'S CASE 2 .1 The Prosecution called a total of nine (9) witnesses in support of their case. 2.2 PWl was Abishai Mpundu, a 40 year old, caretaker residing in Lilayi, at Farm no. 12525, who testified that on the 4 th of November, 2019, service cables from the pole to the house he was living in, were stolen. The following day a t around 06:00 hours, whilst inspecting the flats at the said farm, he noticed that a ladder was hanging on the roof of the house and he saw shoe prints of three individuals on the ground. He further noticed that two service cables from ZESCO which run from the ZESCO pole to the roof of the house were missing. He made a phone call to his boss Mr. Lenox Kangwa and narrated to him what had transpired, who then advised him to report the matter at the Police. 2.2 He furth er testified that before going to report the matter at the Police, he decided to follow the shoe Ja I Page prints, which led to his neighbour's house. The caretaker at his neighbour's house, Joseph Chewe, recognised the ladder as it belonged to his employer. PWl went to the ZESCO office at Kabwata and on the instruction of the officers there, he reported the complaint to Kabwata Police and thereafter, went back to the ZESCO office at Kabwata were the officers recorded a statement from him. The officers at ZESCO advised PW 1 that as soon as they had cables in stock they would come to replace the cables that had been • s~len. 2.3 Furthermore, PWl testified that after a few days, around the 7 th of December, 2019, at around 14:00 hours, some ZESCO officers went to his home in the company of Simasiku Sibulwa (Al). According to PWl, A 1 in response to a question as to what happened at the house, stated that it was the place that he had stolen cables from. PWl also testified that he has never seen the cables that were cut again since they were stolen. 2.4 In cross examination, PWI stated that he did not see anyone on the day that the cables where stolen and that before Al was brought, he had never seen him before. PWl further stated that the Police did not bring anyone to fit their foot on the shoe prints that he saw and that to date the owner of those shoe prints is unknown. He further stated that Joseph Chewe had not been interrogated by the police. J4 I P age 2.5 PW2 was Kashinga Christopher, a 38 year old man residing at Farm No. 22195/M, who testified that between 26th November, 2019 and 26th December, 2019, between 18:00 hours and 19:00 hours, he found that there was no electricity when he arrived home. The following morning, he observed that the service cable that run from the pole to his house had been stolen. He reported the matter of the missing cable at Mary Mwango Police Post. When he went with the police to his house, they discovered a ladder in a soakaway drainage. He was later given a Police Report, which he took to ZESCO Security, where he was informed that the stolen service cable would be replaced. 2.6 In cross examination, PW2 stated that he did not see anyone cut the cable. He further stated that he had never seen the Accused persons before and that the ladder was found approximately 4 metres from the place where the cables were cut. He further stated that depending on the occupation of a person with one hand, they can climb a la dder and cut a cable. 2 .7 PW3 was Peter Soko, a 33 year old Guard employed by Mimbulu Security Company, who resides in Lilayi East. PW3 testified that h e was employed to secure and guard ZESCO properties and that on the 4th of December, 2019, h e reported for duty in Lilayi East in Mahopo area, where he was guarding ZESCO armoured cables, which were rolled up in a drum and covered. At around O 1 :00 hours, he heard foot-steps JS I Page and saw Al going directly to the armoured cable. He saw Al cut the loops that hold the cable to the drum using a hack saw blade, which caused the cable to unroll and fall to the ground. Then Al attempted to cut the cable, but as it was on the side of the road, a vehicle flashed its lights at him and he run into a ditch. PW3 rushed to the ditch and apprehended Al. Al asked PW3 to forgive him for attempting to cut the cable but that PW3 refused to forgive him and took him to Lilayi Police station. A 1 had the axle in his hands when he was apprehended and it was left at the Police station. 2.8 During Cross examination, PW3 testified that he only saw one person touching the cable and that the cable was beside the road that is used by a number of people as it was a public road. He further stated that it was possible that a person passing by could touch the cable. He also stated that when Al was apprehended, there was no ladder and that the cable was not cut. 2 . 9 PW4 was Edwin Banda, a 49 year old Electrician and an employee of ZESCO, who stated that his job involved maintenance of the ZESCO Network system and attending to faults. He testified that between November and December, 2019, the local call centre retrieved two complaints from the system which were given to him and his team as they left for Lilayi. The complaints where in relation to lack of electricity supply to Farm Number 12525 and Farm Number 22195 /M . J6 I P age 2.10 PW4 and his team first went to Farm Number 12525 and upon arriving there to investigate why the farm had no electricity supply, they found that the two duplex cables that transferred power to the farm, each measuring 15 metres where missing. They further determined that the cables were cut from the roof and from the pole with about 2.5 metres of it left hanging on the pole. They further discovered a ladder on the roof of the house. 2.11 Thereafter, PW4 and his team went to Farm No. 22195/M situated within Lilayi, Mahopo area. When they arrived there, they found a similar situation to that from the previous farm, where about 15 metres of the duplex cable was cut. Upon investigation, it was found that it was cut from the roof to the pole. PW4 was of the view that the cables were cut during load she dding as when current is flowing, one cannot cut a cable a s the tool used to cut the cables was not insula ted. PW4 could tell that it was not insulated due to the manner in which the strands of cable that were left appeared. 2.12 During cross examination, PW4 stated that he did not s ee or know the p eople that cut the cable and that the cables that were cut were never found . PW4 further stated that the duplex cable could be found anywhere and can be purchased by anyone from town or the black market. PW4- stated that with the length of the ladder found at the scene, it could be used to cut the cable on the roof and on the pole with ease. PW 4 sta ted J7 I Page that it was possible for a person to cut a ZESCO cable with one hand. 2.13 PWS was Detective Constable Ian Kaputula, Service number, 43901, based at Chilanga Police Station. He testified that on the 6 th of December, 2019, whilst on duty, he received a phone call from Detective Constable Mvula who is currently attached at ZESCO. She informed him that security guards had apprehended a suspect who attempted to tamper with ZESCO cables on site in Lilayi. 2 .14 Acting on that information, he and two ZESCO employees employed in the security wing and two police officers went to the scene. When they arrived at the police station, they confirmed the arrest that was m a de and saw the suspect who was a single handed person known as Simasiku Sibulwa (Al). He was also informed by the security guards that A 1 was found with an axle. 2 . 15 PWS cautioned Al and during the interrogation he stated that when he was apprehended he was with a friend who managed to escape. Al directed PWS and the other officers to a bush where A 1 said his friend stayed and about 500 metres into the bush they reached a certain point where they saw Christopher Bwalya (A2) who attempted to escape, but was apprehended by the officers. PWS stated that as A2 showed them where he was sleeping, a red axle dropped from the trousers that he had attempted to pick, which he said that he used it to cut some trees JS I P age for firewood. PWS became more suspicious and upon checking around the place, he discovered five types of cables. PWS got the cables and axle and thereafter, the two suspects were taken to Chilanga Police Station. 2.16 During cross examination, PW5 testified that he went to the site where the cables were being installed and that the place where the cables were was at a distance from the main road. PW5 further stated that it was a crime to find someone with an axle blade and cables in the circumstances. 2 . 17 PW6 was Jackson Ngozo, aged 43 years old and employed by ZESCO, under the Security Department. PW6 testified that his duties where to look after the property of ZESCO and that in November, 2019 at around 07:45 hours when he reported for duty, he received a report that a service cable had been stolen in the Mahopo area of Lilayi, in Chilanga. He and another colleague rushed to Mahopo area where they found that a cable had indeed been stolen and determined that the cable that had been stolen was 35 metres long. 2.18 On the 6 th of December, 2019, PW6 received a call from Detective Mvula, who told him that they had apprehended someone who had been stealing ZESCO cables. He went to Chilanga Police Station, where he picked three police officers and rushed to Mahopo area, Lilayi, Chilanga. There, they found Al who stated that he was not alone when the incident happened. Upon further inquiry, A 1 led the Police to where his friend J9 I r d. g f~ was and they returned with A2. They also discovered an axle with a red handle, a cable measuring not more than two metres, two armoured cables of about 1.5 metres each, a 3 core cable which was 2.5 mm thick and one white roll of cable which was not measured. 2.19 In cross examination, PW6 stated that he did not know who had stolen the cables and that the total length of the cables vandalised in the places where they had received reports was 128 metres and not 2 metres. 2 .20 PW7 was Detective Sergeant Patson Kazhimoto, aged 45 years old, Service Number 36198, a Lusaka Division Scenes of Crime Investigator. He testified that he was a trained scenes of crime officer, specialised in Handwriting, Photography, Finger prints, Verification of questioned documents, Human Rights and Drill. He trained at Lilayi Training College, where he was issued with an Advanced Certificate in the fields he had referred to. His main duties are to visit scenes of crime of any given nature, appreciate the scene and also scene reconstructions using the devices given to him by Zambia Police Service. After he examines a scene of crime, he compiles reports and productions of either still photos or videos for Court proceedings and office filing. 2.21 He testified that on the 12th of December, 2019, whilst on duty, he was assigned to accompany Detective Inspector Changwe to Chilanga Police Station, where some suspects were in police custody for the alleged offence of vandalism, which occurred between the 1 s t of JlO I Pa~ t' October, 2019 to the 6 th of December, 2019, in Chilanga's Shantumbu area, at a place called Mahopo. As a Scenes of Crime Officer, he prepared himself with a black Panasonic 2HD 1920 by 1080 video camera, a blue SanDisk memory card, 32 GB in size, all of which were issued by the police. 2.22 At Chilanga Police Station, he was accommodated in the administration office and whilst there, Detective Woman Constable Mvula, an investigator attached to ZESCO Police availed two suspects to be interviewed during the scene of crime reconstruction. As per procedure, Detective Inspector Changwe informed the two accused persons, the essence of the scene reconstruction and explained the right of the accused persons to legal, family or friend r epresentation. He warn ed them that during the period, the entire process would be filmed on video. The two accused persons expressed willingness to participate in the scene reconstruction and decided to do it without representation. The interviewer and Inspector Changwe, r ead and explained to Al and A2 the alleged offence of vandalism, which had taken place between the 1st of October and the 6 th of October, 2019. After this process, the two accused persons took the interviewer, PW7 and other officers to Mahopo area in Shantumbu where they demonstrated to them and showed them the places where the offences allegedly took place. Jll I Page 2.23 PW7 stated that they used two vehicles and that the one in front had the accused persons who were seated next to the interviewer and a crew man who had a camera. PW7 was in the second vehicle, which was behind the first one. He testified that at one particular scene, Al took them to a certain house where he alleged to have cut the service cables and stated that he did it alone. At that scene, Al showed them a place where the cables were replaced and PW7 and the team could see that ZESCO had reconnected the lines using blue insulation tape. 2.24 PW7 and the team were then led to the second scene relevant to this case, where the two accused persons told them that they allegedly acted together. At this particular scene, the two accused persons demonstrated independently, one after the other, how they had put the ladder to reach the service cable. They each pointed to the top of the house where they saw pieces of cable hanging from the shackle. PW7 testified that when A2 took them to the place were A 1 had given a demonstration of how they managed to cut the cable, he demonstrated that whilst Al was holding the ladder, A2 climbed on top to cut the service cables. The two accused persons were asked, if at all they knew where they took the service cables, and they responded that they had sold them to someone in Kuku area and that there were unable to take them to that alleged buyer. J12 I Page / 2.25 PW7 concluded the interviews at the scene and took the Accused persons to Chilanga Police Station where they left the accused persons in the hands of Detective Woman Constable Mvula, who continued with the investigation. PW7 further stated that in the video he recorded, there were many other clips relating to vandalism cases, but that for this particular case, the Court was shown three major parts, which included the interview conducted at Chilanga Police Station, in the Administration Office and also at the first and second scene. 2.26 On the 14th of December, 2019, PW7 and Detective Inspector Chanda went to the Service Headquarters Forensic Department where he produced the recordings on 3 DVDs from the 32 GB memory card, which were compiled in preparation for trial. The three DVD 's, 32 GB Memory Card where identified and produced as follows: - 1. Three DVD's marked ID6 a, b, c, produced as P6 a, b, c;and 2. Memory Card marked !D7 produced as P7. 2.27 The video recording was played in Court and PW7 narrated that scene one consisted of the portion where the rights of the accused persons were explained and that the rest of the scenes consisted of the accused persons demonstrating the roles that each of them played in the commission of the offence. J13 I Page (<I I 2.28 During cross examination, PW7 testified that the entire video was close to two (2) hours and that the entire 32 GB was not consumed during the recording of the video. Further he testified that the video before this Court was not edited but that it was in parts. PW7 stated that the accused person in front was the one leading the interviewer. He also stated that the warn and caution statement was administered fully and conclusively. 2.29 PWS was Detective Inspector Patrick Kalumba Changwe, aged 42 years old, Service Number 12664, who is currently the Officer in Charge, Scenes of Crime, at Simon Mwansa Kapwepwe Police Post. He testified that his duties entail identifying, protecting, collecting and preserving forensic and finger print evidence. Other duties include interviewing witnesses and suspects. PW7 gave a detailed account of his training and qualifications. He joined the police service in 1997 and that in 2014, he was appointed as Scenes of Crime Officer in Charge, at Simon Mwansa Kapwepwe Police Station. 2.30 PW8 t estified that on the 12th of December, 2019, whilst on duty at Lusaka Division Scene of Crime Office, on the instruction of the Officer In Charge, h e constituted a team to attend to a matter being investigated by ZESCO. The team included himself as the interviewer, Detective Sergeant Kazhimoto as the camera man and Woman Constable Zulu as the exhibit officer. With his team, he booke d out to Chilanga Police J14 I Page Station, where he was met by the investigating officer, Detective Woman Constable Zulu Mvula from ZESCO police. He organised the administration office at Chilanga Police Station to be the place for the interview and the ZESCO police officers handed him two suspects, Al and A2, to be interviewed. 2.31 PW8 administered warn and caution to the suspects, who decided to proceed with the interview without representation. During the course of the interview, PW8 was led to Shantumbu area, in Mahopo Lilayi, where he was taken to four different scenes of crime. 2.32 At the first scene of crime, PW8 was led by Al, who demonstrated how he stacked two blocks and was able to reach the service cable and cut it. At the next crime scene relevant to this case, both Al and A2 individually demonstrated how and where they cut the cable on top of the roof. The whole process was done under warn and caution. After finishing with the interview at the scenes, the suspects were taken back to Chilanga Police Station. PW8 showed the Court the portion of the video where he administered the warn and caution statement to the Accused persons. 2.33 During cross examination, PW8 testified that in total, there were 9 people involved in the video recording, five (5) of them being police officers. He stated that some parts of the video were skipped as there were 4 scenes of crime and what was shown to the Court was what was relevant to this case. He further stated that the warn and caution statement was complete and that the J15 I Pa~ e accused persons were led without coercion as the state was willing to allow them to contact a representative or a lawyer. PW8 did not agree that given that A 1 had one hand, it would have been better for the police officer to ensure that he demonstrated how he cut the cable. 2.34 PW9 was Lunia Mvula Zulu, Detective Woman Constable aged 34 years old, service number 4030, who is based at Chilanga Police Station. She testified that she was attached to ZESCO and that on the 6 th of December, 2019, she received a phone call from Lilayi Police Model Post, informing her that they had apprehended one male suspect (Al) in connection with the vandalism which was taking place in Mahopo Lilayi area. Acting on the report, she decided to call Detective Constable Kaputula and ZESCO's Constable Jackson Ngozo. They made a follow up and the suspect was transferred to Chilanga Police Station. 2.35 On the 9 th of December, 2019, she found two male suspects, Al and A2, whom she interviewed in connection to the exhibits which were given to her by Detective Constable Kaputula. During the interview, A 1 stated that he only knew of four places where he had cut ZESCO service cables. 2.36 PW9 testified that A2 said that he accompanied Al at one place, in Mahopo Lilayi area. She asked them if they could lead her and the officers to those areas so that he could confirm. Thereafter, she and the other officers visited the four crime scenes which included Farm No. 22195/M where Al stated that he had acted J16 I Page alone and Farm No. 12525, which was the place where A 1 and A2 acted together. 2.37 A2 led them to one of the flats where they had cut a 15 metres by two duplex cable, valued at K693.00. A2 demonstrated by pointing at the roof, where the remainders of the service cables were, which were connected to the shackles of the roof. A2 further demonstrated by way of pointing on the wall of the house where he placed the ladder which he climbed when cutting the service cables in the company of A2. She stated that the ladder was not at the scene as it had been removed and was in the custody of the owner of the house. 2.38 After the scene of crime officer finished interviewing the accused at the scenes of crime, the officers returned to Chilanga Police Station were the accused were detained. PW9 collected the ladders and kept them in her custody. She made up her mind to charge and arrest Al and A2 with two counts of vandalism of public and private property, necessary and incidental to the provision of necessary services. Under warn and caution, Al and A2 voluntarily denied the charges. 2.39 PW9 identified and produced the exhibits in her custody as follows: - 1. Ladder marked ID 1 produced as P 1; 2 . 2. Sm ladder marked ID2 produced as P2; 3. Axle with green handle marked ID3 produced as P3· ' J17 I Page 4. Axle with red handle marked ID4 produced as P4; and 5. Cables marked IDS a, b, c, d and e produced as PS a, b, c, d and e. 2.40 During cross examination, PW9 stated that she visited the crime scene and had carried out investigations. She further stated that despite carrying out investigations and prior to the accused's arrest, she did not know who had committed the offence. PWl did not inform PW9 that he suspected that a caretaker would be responsible for the theft but she was aware of PWl who confronted a caretaker, as the footsteps he found led to the caretaker's house. PW9 further confirmed that she went to the scene of crime where Al was apprehended and discovered that no ZESCO cable was cut. 2.41 She received the report on the 6 th of December, 2019 of Al's arrest and Al remained in custody till the 12th of December, 2019, after the scene reconstruction. PW9 further testified that when Al and A2 were charged they had no access to family, friends or a lawyer. 2.42 With regards the knowledge of their rights, PW9 stated that she had explained to them that they had a right to refuse if they were not willing to lead and were advised to have the presence of their relatives. PW9 confirmed that A 1 and A2 did not demonstrate how they used the ladders produced in Court during the reconstruction as on the day of the scene reconstruction, the owner of J18 I Pave :;, the farm had stored one of the ladders 1n the store house, which was locked. 2.43 PW9's testimony marked the close of the prosecution's case. At the close of the case for the prosecution, I found that the prosecution had adduced sufficient evidence to require the accused persons to make a defence. Therefore, I put both accused persons on their defence in terms of Section 207 of The Criminal Procedure Code2 and both Accused persons elected to remain silent. (I SUBMISSIONS 3.1 The Defence filed its final submissions on the 24th of July, 2020, wherein Defence Counsel gave an account of the facts and evidence adduced by the prosecution. He cited the provisions of Section 341 (1) (2) (a) of The Penal Code1 and the case of Mwewa Murano v The People1 and submitted that 1n order for the prosecution to discharge the burden of proof, they ought to h ave brought evidence at trial to show that Al and A2 had wilfully or maliciously destroyed, damaged, defaced, disabled or in any way disrupted the functioning of or impairing public or private property at Farm No. 22195/M and Farm No. 12525 Lilayi, Mahopo. 3.2 The case of Woolmington v DPP2 was cited for the following: - " ... while the prosecution must prove the guilt of the prisoner, there is no such burden on the prisoner to prove his innocence and it is sufficient for him to Jl9 I Page raise doubt as to his guilt; he is not bound to satisfy the Jury of his innocence." 3.3 Based on the forgoing authority, it was submitted that the prosecution had the duty to prove all the elements of the offence, that it was the accused who committed the offence beyond all reasonable doubt and that the accused person carried no legal burden to prove their innocence. 3.4 It was contended that PW3 was the only eyewitness who came and testified and no other witnesses were called to confirm his eyewitness report despite him stating that he was in the company of five other security guards bringing the total to six persons present at the time of the incident. It was argued that failure by PW9, who was tasked to investigate this matter, to obtain statements from other persons present at the time Al was apprehended and from Joseph Chewe, a possible suspect in this case, was a dereliction of his duty. The holding in the case of Yotamu Haameenda v The People3 was cited 1n support of the foregoing submission. 3.5 It was Defence Counsel's contention that according to PW3, A 1 was apprehended when he was alone and was n ever found with any ZESCO cables on his person, save for an axle blade and that merely touching a ZESCO cable was not an offence. It was further contended that no direct evidence was produced by PW3 to show this Court that Al and A2 where responsible for the J20 I Page vandalism of the ZESCO cables at Farm No. 22195/M and Farm No. 12525, Lilayi's Mahopo area. 3.6 It was submitted that none of the prosecution witnesses brought any direct evidence linking Al and A2 to the offences that they are charged with. Counsel cited the definition of direct evidence by the learned authors of Phipson on Evidence1, as follows: - "By direct evidence is meant that the existence of a given thing or fact is proved either by actual production, or by the testimony or admissible declaration of someone who has himself perceived it.,, 3. 7 Based on the foregoing, it was submitted that in the absence of any direct evidence, this Court should guard against convicting Al and A2 merely on circumstantial evidence. The case of David Zulu v The People4 was cited in support of the submission that the evidence before this Court had not attained the degree of cogency for this Court to feel safe to convict Al and A2 for the two counts of vandalism at Farms 22195/M and Farm No. 12525 Lilayi, Mahopo area. 3.8 Defence Counsel contended that by the testimonies of PW7, PW8 and PW9, the leading of the Police to the crime scenes by the accused persons was signalled by the flashing of hazards on the vehicle, but that throughout the video no such flashing was demonstrated or shown to the Court. It was submitted that in the absence of such proof of leading, this Court should take keen interest on who was leading between the Police or the accused persons. The case of Douglas J21 I Page Mpofu and Washington Magura v The People5 was cited in support of the foregoing position. 3 .9 Defence Counsel further contended that the warn and caution statement was not properly administered and that throughout the video, PW8 was asking Al and A2 leading questions, thereby pre-empting his desired answers. It was therefore submitted that the recording of the interview was done in breach of the Judges' Rules and if given weight, it may be prejudicial to the accused persons. It was further submitted that the presence of a horde of police officers, some of whom could be heard in the background of the video recording being offered vegetables by the owners of the premises where the cables were allegedly stolen, the absence of legal representative, family or friends and the fact that A 1 and A2 were detained in custody for a number of days without food, goes to the root of the volun tariness of the statements made by A 1 and A2 during the crime scene reconstruction video recording. Based on the foregoing, Counsel implored this Court to consider the weight of the evidence before reaching a verdict. The holding in the case of Zeka Chinyama and others v The People6 was cited for the following:- " ... when dealing with the admission of a confession statement, the trial court must 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 in the exercise of its discretion be excluded, notwithstanding that it was voluntary and strictly speaking admissible, on the ground that J22 I Page in all circumstances the strict application of the rules as to admissibility would operate unfairly against the accused ... ... the question of discretion to exclude a confession made to a police officer falls to be considered when such confession has been held to be voluntarily made, but there has been a breach of the Judges Rules or other unfair conduct surrounding the making of the confession, either on the part of a police officer or of some other person, which might indicate to a Judge that there is a danger of unfairness ... " 3.10 It was Defence Counsel's contention that PW9, who was the lead investigator and was present during the scene reconstruction had visited the crime scenes prior to the recording. It was further contended that PW2 during cross examination confirmed that when he reported a stolen ZESCO cable at Mary Mwango police post, the officer he reported to insisted on visiting the scene of the crime at Farm No.22195 /M Lilayi Area, prior to issuing him with a police report. It was argued that this was sufficient proof that the officers tasked to investigate the matter had prior knowledge of the scene of the crime and therefore the evidence of leading should not be relied upon. To fortify his contention, the holding in the case of Boniface Chanda Chola and Another v The People7 was cited for the following:- " ... the leading by an accused of the police to a place they already know and where no real evidence is uncovered, cannot be regarded as a reliable and solid foundation on which to draw an inference of guilt." J23 I Page 3.11 It was submitted that the crime scene reconstruction video should be excluded in reaching a verdict on the basis that PW9, who was the lead investigator in this case, had been to the scenes of crime and was present at the time the interview and cnme scene reconstruction was recorded. 3.12 In conclusion, Counsel submitted that the prosecution had failed to prove its case beyond reasonable doubt and on the evidence before this Court, the accused persons cannot be liable for the alleged offences. 3 .13 The Prosecution filed its final submissions on 31 st of July, 2020. Counsel for the prosecution cited the provisions of Section 341 D (1) (2) (a) and Section 341 A of The Penal Code1 and submitted that in order to prove the offence levelled against the accused persons in both counts, the following elements must be proved:- 1. That the property vandalised is either public or private property; and 2 . That the vandalised property must be essential for or incidental to the provision of the necessary service to the public. 3 . 14 Counsel proceeded to give a summary of the facts and evidence adduced by the prosecution. It was his submission that since the accused persons led the police to the houses where they vandalised the ZESCO service cables; that the cables were indeed seen in the video to have been vandalised; and that two ladders J24 I Page used in the vandalism were recovered from the scene of crime, being real evidence, the evidence of leading in this regard whether voluntary or not is admissible. He cited the unreported case of John Mwansa and Another v The People8 in support of the forgoing submission. 3.15 The case of Green Musheke Kuyewa v The People9 was cited for the following: - "Where a number of accused persons are alleged to have led the police to where incriminating evidence is found, it is essential for the trial court to ascertain the role played by each so as to indicate precisely who had the guilty knowledge." 3.16 On the strength of the foregoing authority, Counsel submitted that the video that was played before this Court, clearly showed Al alone leading the police to the aforementioned houses, where real evidence, being the parts on the two houses where the service cables were cut from and the two ladders used in the vandalism, were recovered from the same houses. It was further submitted that the video shows A2 being alone leading the police to Farm No. 12525, where he vandalised the service cables and from which farm a ladder was also recovered. 3.17 It was Counsel's further submission that the prosecution had indicated to this Court precisely the role played by each accused person through a video that was produced and that the video precisely indicates that both accused persons had the guilty knowledge with regard to the vandalism of the service J25 I Page cables from the two farms. Furthermore, Counsel submitted that the vandalised cables were essential and incidental to the provisions of necessary service and that it is property owned by ZESCO a public institution supplying electrical power to members of the public. 3.18 Counsel cited Section 22 of The Penal Code1 in support of the contention that the evidence on record showed that the accused persons acted together to commit the offence they stand charged with on both counts. It was contended that following the apprehension of Al, he led PWS and PW6 to Lilayi Mahopo area, where A2 was also apprehended and that the said witnesses collected a number of items produced and marked P4 and PS a, b, c, d and e, from the place that the duo where camping. Additionally, he submitted that when Al and A2 were interviewed by the Police, they voluntarily led PW7, PW8 and PW9 to Lilayi Mahopo area, to Farm No. 22195/M and Farm No. 12525, where they vandalised service cables that were connecting power from the ZESCO poles to the said houses and demonstrated the means they used to cut the cables from the two farms . 3. 19 It was argued that for A 1 to have led to the apprehension of A2 and the duo later leading the police to the scene of crime where real evidence was discovered, that sufficiently demonstrates that Al and A2 were together and indeed had a common purpose to prosecute as shown by the facts above. J26 I Page 3.20 It was finally submitted that the prosecution had proved both elements of the offence that the accused persons are charged with on both counts. The Court was therefore urged to find both accused persons guilty of the offence charged on both counts and convict them accordingly. THELAW 4.1 The accused persons were charged with two counts of vandalism contrary to Section 342 D (1) (2) (a) of The Penal Code1 . The ingredients for the offence of vandalism are to be found in the charging section itself. In Section 341 D (1) (2) (a) of The Penal Code1, vandalism is defined as follows: - "(1) Any person who for any purpose vandalises any public or private property essential for or incidental to the provision of a necessary service commits afelony. (2) Where the property referred to in subsection ( 1) is- (a) A cable, overhead line, power line, electricity pole, pylon, transformer, pole mounted substation, substation, generating station or other property essential for or incidental to the connection, installation, generation, supply or distribution or other use of electricity, notwithstanding the Electricity Act or any other written law, the offender is liable, on conviction- J27 I Page (i) to imprisonment for a term of not less than ten years and not exceeding twenty-five years; or ... " 4.2 In addition Section 341A of The Penal Code1 defines ' the term "necessary service" as follows: - "Any service relating to the generation, supply or distribution of electricity." 4.3 It also defines the word "vandalise" as follows: - "willfu.lly or maliciously destroying, damaging defacing, disabling, or in any way disrupting the functioning of or impairing public or private property .... " DECISION 5.1 I have considered the case before me together with all the evidence adduced by the witnesses. I have further considered the submissions b}'." both Counsel and the authorities cited, for which I am grateful. 5.2 I have throughout the trial and indeed at the time of writing this Judgment borne in mind that the burden of proving the charge against the Accused Persons lies from beginning to end on the prosecution and that they must prove every element of the offence beyond reasonable doubt. If at the end, I harbour any doubt as to the guilt of the accused persons or either of them, I am obliged to acquit that person. There is no burden whatsoever on the Accused person to prove his innocence. 5.3 In determining this case, I have also addressed my mind to the case of Simutenda v The People10, where J28 I P a. g e 'I • the Supreme Court in applying the dictum of Lord Devlin in R v Sharmpal Singh11 , held as follows: - "There is no obligation on an accused person to give evidence, but where an accused person does not give evidence the court will not speculate as to possible explanations for the event in question; the court's duty is to draw the proper inference from the evidence it has before it." 5.4 The accused persons herein elected to remain silent, which is their constitutional right and based on the foregoing authority, my duty is to draw a proper inference from the evidence available before me. 5.5 The ingredients for the offence of vandalism are to be found in the charging section itself, which 1s reproduced in paragraph 4 above. It is not in dispute that 15 meters by two of duplex cables valued at K693.00, the property of ZESCO, were cut off from Farm No. 22195/M and Farm No. 12525, in Lilayi area, from the points where they connect the house to the pole at each farm. It is further not in dispute that the said cables were the property of ZESCO and were essential for or incidental to the provision of necessary supply of electricity to the said houses. What is in dispute, however, is whether it has been proved beyond all reasonable doubt that the Accused persons committed the offence of vandalism at the two farms. 5.6 From the evidence on record, it is the testimony of PW3, PW5, PW6, PW7, PW8 and PW9 that directly links both accused persons to the commission of the offence. J29 I P aie • • 5.7 It has been contended by the Defence 1n its submissions that the failure by the Police to investigate Joseph Chewe, the neighbour to PWl at whose house the foot prints that came from Farm No. 12525 ended, on the day the cables were discovered to have been stolen from the said Farms, was a dereliction of duty as he was a possible suspect. I agree with Defence Counsel's contention that the failure to investigate Joseph Chewe was a dereliction of duty on the part of the investigating officers . 5 .8 In the case of Yotamu Haameenda v The People-1 the Supreme Court stated as follows: - " ... where the nature of a given criminal case necessitates that a relevant matter must be investigated but the Investigating Agency fails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because the evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the dereliction of duty." 5.9 I would therefore like to take this opportunity to urge law enforcement officers to conduct their investigations with the seriou~ness and utmost commitment they deserve because they impact greatly on t he outcome of proceedings. Having said that, I will now proceed to J3o I r a~ e consider the rest of the prosecution's evidence to determine whether it is so overwhelming to offset the prejudice against the accused persons which might have arisen from this dereliction of duty, as guided by the foregoing authority. 5.10 According to PW3, whilst he was guarding the ZESCO armoured cables in Mahopo area of Lilayi East, on the night of the 4th of December, 2019, he saw Al cutting the loops that secured the said armoured cables. Before Al could get to the armoured cables, a vehicle flashed its lights at him and he run to a ditch, where PW3 who found him with an axle in his hands, apprehended him and took him to Lilayi Police Station. It has been contended by the Defence in their final submissions that as PW3 was not the only eye-witness to the events that led to Al's arrest, the Prosecution were required to call other witnesses to support PW3's eye-witness report. This contention in my view comes late in the day, as the credibility of PW3's testimony was not challenged in any way by the Defence during cross examination of PW3 at trial. I therefore accept PW3's testimony as evidence of the events that led to the apprehension of A 1. 5.11 According to the testimony of PW5, when Al was taken to Lilayi Police Station, under warn and caution he stated that when he tampered with the ZESCO ' armoured cable, he was with A2 who managed to escape at the scene. Following this statement, Al upon the request of the police officers led PW5, PW6 and J31 I Page other officers to the place where A2 was. They apprehended him in a bush where he was found with an axle blade and 5 cables of varying lengths, which included a 2 metres service cable which was similar to the ones vandalised at both properties. 5.12 During cross-examination, Defence Counsel put it to the witness that the 2 metres service cable found at the place where A2 was apprehended, did not correspond with the 15 metres service cables that were alleged to have been stolen at each of the said farms. Defence Counsel further suggested that the said cables could have been purchased from town or may have been picked at a ZESCO dumpsite, which is located near the place that A2 was apprehended. This contention by Defence Counsel was also echoed in the Accused's final submissions. 5. 13 Based on my analysis of the foregoing summary of the testimonies of PW3, PWS and PW6, I find that though their evidence did not prove that Al and A2 committed the vandalism at the farms, Al being in possession of an axle when he was apprehended and leading the Police Officers to where A2 was found with an axle and a 2 metres duplex cable, which was similar to the ones vandalised at both properties, was an odd coincidence which remained unexplained. This provided a connecting link and constituted supporting evidence of the possibility that the accused persons committed the offence. Ja2 I Page 5.14 In the case of llunga Kalaba and John Masefu v The People12 , it was held that: - "It is trite law that odd coincidences, if unexplained, may be supporting evidence. An explanation which cannot reasonably be true is in this connection, no explanation." 5.15 Additionally, the evidence adduced by PW3, PWS and PW6 regarding the discovery of the two axles, materially corroborates the testimony of PW4, the electrician from ZESCO, who testified that the cables at the two farms were cut with a tool that was not insulated as observed from the manner in which the strands at the point where the cables were cut appeared. 5. 16 I will now proceed to consider the evidence of PW7, PW8 and PW9, relating to P9, which is the crime scene reconstruction video. According to the evidence of PW7, PWS and PW9, regarding the video footage, Al and A2 under warn and caution led them and other officers to Farm No. 22195/M and Farm No. 12525. With regards to the foregoing evidence of the accused persons leading the police to the scenes of crime, Prosecution Counsel submitted to the effect that as the accused persons led the police to the houses where ZESCO cables had been vandalised and that the video indicates that both accused persons had guilty knowledge with regards to the vandalism of the service cables, the evidence of leading in this regard whether voluntary or not is admissible. On the other hand it ' J33 I Page <e has been contended by Defence Counsel in his submissions, that as PW9 who was the investigating officer had already visited the crime scenes prior to the scene reconstruction video recording and was among the officers allegedly being led to the crime scene, by the accused persons, she knew where the scenes of crime were located and as such, the evidence of leading should not be relied upon. In determining whether the evidence of leading is admissible or not, I am guided by the unreported case of John Mwansa and Another v The People8 , where the Supreme Court stated as follows: - " ... we do not fault the learned trial judge for accepting this evidence, in light of the fact that a caution was recorded before the leading and that, according to the evidence of PW8 at page 34 line 21- 24 of the record of appeal, two other people namely, one woman from Cedric Farm and another man from Chimwemwe, were always present at the police station. Further, it was a well-established principle that where the leading of the police to the scene or elsewhere by an accused, whether voluntary or not, has resulted in the discovery of real evidence, or the discovery of anything else not already known to the police, the evidence of leading is always admissible." 5.17 Based on the foregoing authority, I find that as the evidence of leading as it appears on record, resulted in the discovery of real evidence of the recovered ladders and the Accused Persons demonstrating the manner in which they committed the offence of vandalism, which was not known to the Police prior to the scene J34 I Page reconstruction being conducted, it is admissible and I shall therefore rely on it. 5.18 According to the testimonies of PW7, PW8 and PW9, when the Accused persons and the officers reached Farm No. 22195/M, Al led them to the point where he cut the service cable at the house and stated that during the commission of that particular offence, he was alone. He pointed at a blue insulation tape on the service cable and indicated that it was the point where ZESCO replaced the service cable that he had cut. He further demonstrated how he managed to cut the service cable from that point at the house. Al also stated that to cut the service cable at Farm No. 22195/M from the ZESCO pole, he climbed on a ladder which he placed against the pole. 5. 19 The further testimony of PW7, PW8 and PW9 was that both accused persons led them to Farm No. 12525 and 1n the video, both accused persons are seen demonstrating one after the other how they cut the service cable at this farm. 5.20 From the foregoing, I find that this video recording consisted of confession statements made by the accused persons wherein they admit to committing the offence of vandalism. According to the case of R v Baldrey13 , Erlye J. stated that: - "I am of the opinion that where a confession is proved, it is the best evidence that can be produced." 5.21 It has been contended by Defence Counsel in his submissions that the said confession statements made J35 I Page by the accused persons in the video were not made voluntarily, due to the presence of police men and the improperly administered warn and caution statement. I am of the view that the said contention has come late in the day, as the voluntariness of the confession statements made by the accused persons in the video were not challenged at trial. I am fortified by the case of Tapisha v The People14, where the Supreme Court stated as follows: - "Where any question arises as to the voluntariness of the statement or any part of it, including the signature, then because voluntariness is, as a matter of law, a condition precedent to the admissibility of the statement, this issue must be decided as a preliminary one by means of a trial within a trial." 5 .22 Based on the foregoing authority, it is my view that Defence Counsel cannot challenge the voluntariness of the confession statements in his submissions, when he could have done so by making an application to this Court for a trial within a trial to be conducted to determine whether it was made voluntarily before it was admitted into evidence. In fact, before the said video recording consisting of the confession statements was admitted into evidence, Defence Counsel was asked if he had any objection to its production and in response, he stated that he had no objection provided that the recording that was produced was the one that came from the memory card used to record the video. Therefore, I find that challenging the volun tariness of a confession statement at submission stage lacks legal J36 I Page ' basis and appears to be an afterthought by the Defence. Additionally, the holding in the case of Zeka Chinyama and Others v The People\ cited by Defence Counsel in support of his contention, was made with reference to an objection that was raised to the admission of a confession statement and is therefore distinguishable from the case before this Court. 5.23 In my view, as the accused persons are seen and heard in the video admitting to the commission of the offence, the prosecution has proved that the said confessions were made. Further, as the production of this video into evidence was not objected to by the Defence, I find that it is sufficient evidence against both accused persons. 5 .24 During cross examination of PW8 and by the Accused's final submission's, it was contended by Defence Counsel that PW8 had not administered the warn and caution statement fully and that this prejudiced both accused persons. It was further put to the witness at trial, by Defence Counsel that as A 1 is a single handed man, the prosecution should have requested Al to demonstrate how he managed to climb on the ladder and cut the cable from the ZESCO pole on his own. 5 .25 From my analysis of P9 and the evidence of PW7 and PW8, I am satisfied that the warn and caution statement was fully and completely administered and that the video clearly shows that both Accused Persons were given an opportunity to seek representation b efore J37 I Page ' taking the police to the cnme scene and that they elected to be unrepresented. Based on the foregoing, I find that there were no circumstances which might conceivably be regarded as indicating unfairness to the accused persons 1n the manner the scene reconstruction was conducted. 5.26 Additionally, I find that from the video footage, it can clearly be seen that Al, though being single handed, demonstrated how he managed to cut the service cable that was connected to the house at Farm No. 22195/M. Furthermore, although there is no evidence to show how Al managed to cut the cable from the pole using the ladder, I find that in the video footage Al can be seen voluntarily and by his own admission indicating that he managed to do so. Based on the foregoing, I find that with regards Count 1, the prosecution has proved beyond reasonable doubt that Al committed the offence of vandalism at Farm No. 22195/M but that the prosecution have not proved that Al did so whilst acting together with A2. 5.27 Based on the testimonies of PW6 , PW7, PW8 and PW9 wherein they stated that both Al and A2 told them and other officers that A2 did not participate in the vandalism at Farm No. 22195/M and the demonstration by A 1 and A2 in the video of the roles that each of them played in the vandalism at Farm No . 12525, I find that the prosecution has with respect to Count 2 proved beyond reasonable doubt that A2 J38 I Page .. . ' whilst acting together with Al committed the offence of vandalism at Farm No. 12525. 5.28 Accordingly, I find Simasiku Sibulwa guilty on both counts of the offence of VANDALISM and I accordingly convict him. With regards to Christopher Bwalya, I acquit him of the offence of vandalism in respect of count 1 and find him guilty of the offence of VANDALISM in respect of count 2. I accordingly convict him. 5.29 Both Convicts are advised of their right to Appeal. Signed, Sealed and Delivered at Lusaka this 6 th day of October, 2020. P. K. 'V1\NGAILO HIGH COURT JUDGE J39 I Page