Lubaba v People (Appeal 5 of 2016) [2017] ZMCA 118 (17 March 2017)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO.05/2016 HOLDEN AT LUSAKA (Appellate Jurisdiction) IN THE MATTER BETWEEN: THOMAS LUBABA AND THE PEOPLE APPELLANT RESPONDENT Coram: Chisanga, JP, Chashi ana Muldngoti JJA On 17th January, 2017 and 17 March, 2017 For the Appellant: Mr. C. Siatwinda, Legal Aid Board For the Respondent: Mrs C. M Hambayi, National Prosecutions Authority —"-xf" - ------------- ■—r, X - -'-z. ' Xv ■>------------------ — ----------------------- * A JUDGMljiNT A > Chisanga, JP, delivered the judgment of the court. Cases referred to: 1. Kaunda vs The People (1990-92) ZR 215 2. Mwambona vs The People (1973) ZR 3. Zulu vs The people (1977) ZR 4. Mwanaube vs The people, Appeal Number 200 of 2011 Unreported 5. Bwanausi vs The people (1976) ZR 103 6. Liswaniso vs The People (1976) ZR 277 7. Nalishwa Vs The People (1972) ZR 26 8. Chigowe vs The People (1977) ZR 21 9. Chola and Others vs The People 1988 to 1989 ZR 163 10. R vs Exall (1866) 4 F&F 922 at 929 11. Fredrick Albert Roberson reported volume IX of the Criminal Appeal Report at page 189. 12. Walter Davis reported in Vol. 11 of the Criminal Appeal Reports at page 263 13. Mary Ann Nash, reported in volume VI of the Criminal Appeal Reports at page 225 The appellant stood charged with the offence of murder, contrary to Section 200 of CAP 87 of The Penal Code of the Laws of Zambia. The particulars of the offence were that the appellant, on the 9th day of August 2015, at Mazabuka in the Mazabuka District of the Southern Province of the Republic of Zambia did murder Alice Muleya. The evidence in support of the charge came from four witnesses, namely PW1, the appellant’s half-brother, PW2, PW3, tbfe appellant’s step-father, and PW4^ the arresting officer. The evidence led w&s that on the material date, the appellant left with the deceased, for Chibuyu, to collect maize. This was between 16:00 and 17:00 hours. PW1 observed that they went in the direction of Madipa Compound. They had a maize sack in which the maize was to be carried. The appellant came back around 20:00 hours without the child. When PW1 asked him about the child’s whereabouts, he retorted angrily, his response being that they had separated, Alice having gone in the left direction, while the appellant went right. When PW3 returned home, PW1 informed him that the child was not at home. When PW3 asked the appellant about the child he had left home with, the J2 appellant answered him roughly, saying maybe the child had gone to Kaleya or Zambia Compound. He went on to tell PW3 to go and look for the child as the appellant did not know where she was. PW3 began to search for the missing child, and approached the Chairman for help, who in turn enlisted the help of others, among them PW2. PW2 saw the body of the missing child in Chibuyu Compound at a graveyard. He also saw a white sack with green writings on it near the body. He called out to PW3, to inform him that he had found the body of the missing child. PW3 and others went to the scene, where the gruesome discovery had been made. PW3 saw a sack and a jersey near the child, and her underwear beside the body. The deceased had a cut on the forehead, and a stick inserted in her private parts. She was swollen and decomposing as she I had been there^for the four days^he had been missing. A A report was made to the police who came to the scene and retrieved the body. A post-mortem was conducted and a report issued. The appellant left home without informing anyone a day after the child had gone missing. A search was launched, and he was apprehended in Magoye. The appellant’s testimony was that he left with the deceased to go and get mealie meal. The deceased had the sack in which the mealie meal was to be carried. They bought the maize, and went to the market where there was a hammer mill. The appellant left the deceased at the hammer mill and even paid in advance for the maize to be ground. He went to see a friend. When he got home after 19:00 hours, he did not bother to ask whether the deceased had J3 returned as he was served with nshima. That confirmed that the child had returned. The following morning, the appellant was informed by his wife of a funeral at her village, in Magoye. He as a result left with his wife to attend the funeral without informing anyone, as there was no one at home. After paying their respects at the funeral house, the appellant and his wife went to the appellant’s aunt’s place and that is where he was apprehended from. Upon analysing the evidence laid before her, the learned trial judge accepted the cause of death as traumatic shock due to head and neck injury. The judge applied the principle espoused in Kaunda vs The People1,that: A A A A “Prose^ution witnesses wftb -are friends and'*relaiives of the prosecution may have a possible interest to serve and should be treated as suspect witnesses.” She equally adverted to Mwambona vs The People2, where it was held that: “Where a witness may have a possible interest of his own to serve, the court must make a special finding as to whether he is so regarded.” Drawing guidance from the cited authorities, the learned trial judge formed the view that PW1 and PW3 were not witnesses with an interest of their own to serve. She considered the fact that both witnesses were relatives to the appellant by marriage, and lived with him in the same house. She could not conceive of a reason why those witnesses would falsely implicate the accused. She thus found their testimony untainted by a purpose of their own to serve. Thereafter, the learned trial judge turned to consider the circumstantial evidence against the appellant. In considering the evidence, she drew guidance from Zulu vs The people3 where the supreme Court defined the nature of circumstantial evidence. She also referred to Mwanaube vs The People4 where the Supreme Court said the following: “We are satisfied that the learned trial judge was on firm ground when he drew the inference of guilt on the basis of the circumstantial evidence before him. The totality of the circumstantial evidence that the accused was the last person seen with the child before the child wound up dead in the bush takes the case out of the realm of conjecture.” The learned trial judge also expressed the view that the fact of leaving home mysteriously without informing others while the search for the missing child was going on v£as odd behaviour* She referred to tf?c appellant’s adrfftssion that he left home with the deceased on the material afternoon. According to the trial ’ • • 2. T' -o' > <4. * C 'O * judge, it was odd that the appellant returned home alone after having left with the child. He did not tell anyone where he had left her. He left home surreptitiously while the search for the missing child was on-going. The learned trial judge found that the appellant led PW4 to the scene where the body of the child was found. The Judge wondered “how the appellant knew where to lead the police to the scene which was in a secluded place at the old graveyard.” She formed the view that all the circumstantial evidence and odd coincidences pointed to the accused, who was the last person to be seen with the child, and who also led the police to the place where the body was found. She also referred to the fact that the sack which the accused left home with was also found at the scene. She drew the inference that it was the accused who inflicted the heinous injuries on Alice, which led to her death. He thereafter dumped the body at the old graveyard, a site he knew well and later led the police to. The learned trial judge was satisfied that the circumstantial evidence in the matter was cogent and led to only one inference, that the accused caused the death of the deceased, of malice aforethought. She convicted the appellant accordingly. The appellant was dissatisfied with the decision of the trial court, and seeks to assail the judgment of that court on two grounds. The first ground is that the learned trial judge misdirected herself when she held that the appellant led the A A A A < police to thq-scene of crime-Ayitheut having regard^ to the explahatipjr given by the appellant denying the leading or alternatively, without regard to the question of whether the leading was voluntary. The second ground is that the learned trial judge erred in law and fact when she convicted the appellant on circumstantial evidence as (the) inference of guilt was not the only inference that could reasonably be drawn from the facts of the case. On ground one, the arguments advanced on behalf of the appellant are that the record reveals that the appellant denied leading the police to the crime scene, hammer mill leaving the deceased with the sack that contained the maize they bought and therefore was not with the deceased at the time she met her death. It is learned counsel’s contention that more than one inference could be drawn on the evidence. That being the case, the trial court misdirected itself by not considering all the possible inferences and thereafter adopting the inference that would have been favourable to the appellant. It is learned counsel’s argument that the circumstantial evidence was so weak that an inference of guilt was unsustainable. Learned counsel for the respondent have equally filed in heads of argument. It is argued therein that although the police had been to the scene, that visit did A ;ngt yi?.ld any objept^usqd to murder the.4eceased person, was on these.coud A A A A visit when the police were led to the scene that the murder weapon was retrieved. This weapon, a stone, was produced in evidence as P3. It is learned counsel’s further argument that that was relevant evidence that came out of the leading, and showed the appellant’s guilty mind. It is submitted in the alternative that if the leading was involuntary or illegal, the evidence obtained from such leading was admissible. Liswaniso vs The People6 is prayed in aid in that respect. Learned counsel contends that the police did not know the rock; it was the appellant who showed it to them. Turning to ground two, it is argued that the only inference that could be drawn from the circumstantial evidence was that the appellant was guilty. The appellant took the deceased person to buy mealie meal and he got a sack in which he purportedly intended to put the maize. The girl was never seen alive again, from the time the appellant left home with her. It is argued that the appellant’s behaviour after the girl’s disappearance showed that he knew what had happened to her. When PW1 asked him where the child was, the appellant showed a distinct lack of interest in the welfare of the child and was angry at being asked about her whereabouts. His response indicates that he was guilty and knew what had happened to the girl. The appellant was also very violent and rude when PW3 asked after his daughter, to the point that he intimidated the^man who stopped^ sleeping at hom^ Had he truly noj been res ”the.jrfurder he wbidlcLmot have responded in such a’T&anrier, but wo uld 'ha^e - expressed concern over his sister’s welfare. The appellant left without informing anyone as he was running away to avoid apprehension concerning the murder. When PW4 and other officers went to apprehend the accused person, he fled. An innocent person would not have done so. Learned counsel contends that the claim that the girl was alive even after the 9th of August, and that the appellant saw her on two consecutive days after the disappearance was a blatant fabrication by the appellant, as the girl had been J9 missing from 9th August as confirmed by her brother and father. Learned counsel argues that the proposed inference cannot possibly be drawn on the evidence. Had the appellant bought the maize, and someone killed her afterwards, the maize or mealie meal would have been found at the scene. Learned counsel submits that the only inference to be drawn is that the appellant murdered the deceased on the way to getting the maize and that was why the empty bag which he carried was found next to the body. He left the sack there after committing the offence. Learned counsel urged the court to dismiss the appeal and uphold the conviction. We have given due consideration to the arguments advanced by both parties in thi^ appeal. We ag^e.e with the appe|lant’s argument ^hat the learned Jfrial ’'J*udgfe erred by fdifih.gr to consider Whet]a£r the inducetrient brought t6”bbajp5n the appellant’s mind had dissipated or abated at the time he allegedly led PW4 to the scene. The record reveals that it was proposed to produce a confession statement given by the appellant, but the appellant’s learned Counsel objected on the ground that it was induced. A trial within a trial was as a result conducted. The learned trial Judge refused to admit the statement in evidence as she was of the view that it was involuntarily obtained. There was further evidence that the appellant led the police to the crime scene, where a stone was retrieved. In Nalishwa Vs The People (1972) ZR 267, a decision of the Court of Appeal, precursor of the Supreme Court, it was held that, where two confessions are made and the first is held not to have been freely and voluntarily made, the second will be equally inadmissible, unless it is shown that the previous inducement has ceased to operate on the accused’s mind. This principle was echoed in Chigowe vs The People (1977) ZR 218 by the Supreme Court. In the present case, the judgment of the Court makes no indication that the learned trial Judge considered whether the inducement operating on the mind of the appellant had abated at the time he went to the crime scene with PW4. We equally agree with the argument that the appellant did not lead the police to the scenf. In fact the questions put to PW^- by the leaned Estate Advocate were in”"thefollowing words*' .7"’ -7 ,; Q: Did you show him the scene where he admitted having killed the young sister? A: He led me to the crime scene where he demonstrated. Q: How did you go there? A: We went with a motor vehicle. Q: And who was giving directions during this trip? A: It was Male Thomas Lubaba Q: And where did he take you? A: He directed us to the place where the body was found my Lady. It will be observed that learned Counsel for the State asked PW4 whether the latter showed the appellant the scene. This question obviously stemmed from the revelation by PW4 that he went to the crime scene where the body of the deceased was discovered before the accused person was apprehended. That being the case it cannot be said that the appellant led the police to the scene. Chola and Others vs The People 1988 to 1989 ZR 1639 is authority for this conclusion. In that case, the Supreme Court held that: “The leading by an accused of the Police to a place they already know and where no real evidence or fresh evidence is uncovered cannot be regarded as a reliable and solid foundation on which to draw an inference of guilt” It is rendered clear that leading simpliciter, to a place the Police already know, has no evidential value. However, if real or fresh evidence is recovered after the purported Jfeading, that evid^Snce will be admissible, regardless pT having been illegally obtained, as argued ’by learned Counsel for the respondent, premised on Liswaniso vs The People (1976) ZR 277 where it was held that: “Apart from the rule of law relating to the admissibility of involuntary confessions, evidence illegally obtained, for example as a result of an illegal search and seizure or as a result of an inadmissible confession is, if relevant, admissible on the ground that such evidence is a fact regardless of whether or not it violates a provision of the Constitution or some other law.” There was evidence that the appellant showed PW4 the stone he used to hit the deceased. That stone was only retrieved on the second scene visit, when the appellant was present. No cross-examination was directed at the assertion that the appellant showed the police the stone with sharp edges that he used to hit the deceased with. Therefore, that evidence stood accepted, and it is safe to conclude that the weapon used to inflict injuries on the deceased was pointed out by the appellant and retrieved by the Police as a result. The trial Judge misdirected herself by saying, “If the accused knew nothing about Alice’s death, how did he know where to lead the police to the scene which was in a secluded place at the old graveyard?” Notwithstanding, real evidence was recovered from the scene at the appellant’s instance. On the foregoing, the first part of ground one succeeds. We equally agree that it was required of the trial Judge to address her mind to the question whether the earliepi inducement operating on the mipd of the appellant had ceased, when me second scene visit-was conductccT’and that it was'ermisdirection not to address that question. To that extent only the second part of ground one succeeds. However, real evidence illegally obtained from the scene as a result of the purported leading was properly admitted in evidence. We now turn to address ground two of the appeal. The evidence laid before the trial Judge was circumstantial, as no one saw the appellant committing the offence he now stands convicted of. The trial Judge drew inferences from the evidence that led her to conclude that it was the appellant who murdered the deceased. According to the trial judge, she found what she referred to as odd coincidences, viz, J13 i. ii. The accused left home with 10 year old Alice, but returned alone. On his return, he could not tell the family where he had left Alice. Hi. While the search for the young girl was on going, the accused left home mysteriously. iv. Upon his apprehension, the accused led PW4 to the scene where Alice’s body was found. If he knew nothing about Alice’s death, he would not have led the Police to the scene. The character of circumstantial evidence was explained in Zulu vs The People by the Supreme Court as follows: It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather, it is proof of facts not in issue but relevant to the fact in issue and from which an inference of the fact in issue A A A - "X. * Z. x may be drawn. ‘ Pollock CB rather aptly defined this kind of evidence in R vs Exall (1866) 4 F & F 922 at 9291Q, quoted in Cross & Wilkin’s Outline of the Law of Evidence Seventh Edition London, Dublin and Edinburh by Rodrick Bagshaw at P 18, as follows: “It has been said that circumstantial evidence is to be considered as a chain on each piece of evidence as a link in the chain, but that is not so, for then, if any one link breaks, the chain would fall. It is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient J14 . A '* strength. Thus it may be in circumstantial evidence, there may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion; but the three taken together may create a conclusion of guilt with as much certainty as human affairs can require or admit of. ” It should at all times be kept in view that this type of evidence should be so cogent as to transport the conclusions reached out of the realm of conjuncture, and the inference drawn must be the only inference that can be drawn from the evidence. The moment other less damning inferences lend themselves as capable of being drawn on the evidence, an inference of guilt cannot stand. Learned Counsel for the appellant has proposed what he conceives to be likely ^inference from thgtevidence, and weAvill deal with thaAin a moment. A ■■''■'■O' The learned trial Judge referred to Mwanaube vs The People, Appeal No. 200 of 2011 (unreported), where the Supreme Court upheld the trial Judge’s finding of guilt based on the fact that the accused was the last person seen ’ with the child before the child ended up dead in the bush. No doubt, that conclusion was drawn from the evidence before the trial Court and that inference was the only inference that could be drawn. It is rare that two cases will be similar in all respects, so that a Court will still be required, in every case, to examine the facts, and determine whether the inference of guilt is the only one that may be drawn. Illustrations of how the courts have J15 approached circumstantial evidence abound, and we have taken the liberty of referring to a few English authorities. The first such case is that of Fredrick Albert Roberson reported volume IX of the Criminal Appeal Report at page 18911. The facts were that the appellant, his wife and three children, that is, the girl whose death was the subject of the charge, and twins aged nine months, lived in a house with a Mr. and Mrs. Smith. The wife went to the infirmary. The appellant tried to get the children into the warehouse, but without success. Mrs. Smith looked after the children for the rest of the week for 10 shilings. On Saturday, the 28th June, the appellant told Mrs Smith he would try and get the Salvation Army to take the children. He went there, but was unsuccessful. z z 5^ The children W^re-*put to bed by Smith butishe did not undress them on z z z the appellant’s instructions. They appeared quite well. The appellant saw the Smiths between 07:30 and 08:00 pm when they went out, leaving the appellant alone in the house with the children. They came back at 11:00 pm. Mrs Smith asked if the children had gone away. And the appellant responded that the girl had been taken and the twins would be taken in the morning. At 09:00 am on the following morning, the appellant went into the Smiths’ room; they asked if the Salvation Army had come for the twins and he said “yes at six o’clock.” The evidence revealed that the statements that the children had been fetched were all fabrications. The appellant told his wife, and a girl with whom he was on very friendly terms that the Salvation Army had taken the children. He J16 subsequently left the house on 12th July. Ten days later, another person having taken the rooms, a stinking odour was noticed. The police were called in and the bodies of the children found under the floor. On appeal, the Court of Criminal Appeal referred to the fact that the appellant offered no explanation as to how the three children who were left alone in the house with him had disappeared, and the fact that he had made a series of statements about the children which were fabrications and held that no other verdict but one of murder was possible on the facts. Another case is that of Walter Davis reported in Vol 11 of the Criminal Appeal Reports at page 26312. A A A A * < Jhe facts were’thj.t, the appellant . judged with thd (deceased womafi la *1907. ” She was living with her husband, but went away with the appellant, and lived with him as the wife. In 1909, she began to live with her husband, while the appellant remained as a lodger. On March 30th 1909, the husband went out leaving her, appellant, and another lodger at home. The other lodger left the house shortly before 08:30 am and the appellant was seen to go out about 08:50 am. According to the appellant’s account, he went to the post office, where, he spoke to a female official and having bought some steak and some whisky, he returned to the house at 10:00 am. He was unable to say where he bought the provisions. On his arrival home he went upstairs and found the deceased dead in her bed. He was so upset at the discovery that he went away J17 at once, without informing anybody and what had happened. He was arrested in Northumberland on April 17th , 1909. It was held on appeal that the test to be applied is, “how would an innocent man have acted in the circumstances?” The Court found that upon the evidence, no other conclusion but one of guilty could have been arrived at. The last case we will refer to is that of Mary Ann Nash, reported in volume VI of the Criminal Appeal Reports at page 22513. In that case, the appellant was charged with the murder of her illegitimate son, aged five years and nine months on June, 27th 1907. The body has discovered in a well at Burbage in April, 1908. Th^ evidence was th^t in October, 19^6, the a •'■o' Jthe child frorri'th^bare of the fath'eCand placedfifth.with a Mrs Mary Stagg, at Pewsey. She got behind in her payments and on May 29th 1907, he was removed to a Mrs Emma Stagg at Aughton, with whom the appellant was herself then living. On the way the child was taken for a rest to the cottage of a Mrs. Sherwood, which overlooks the field where the well was, in which the body was afterwards found. Mr. Stagg objected to Keeping the child, and one or two days after June 26th 1907, appellant took him away, saying she was going to the house of a Mrs Hillier near Marlbourough. She returned the same evening without him, after an absence of about twelve hours, and then on several other occasions stated, untruly, as was admitted at the trial, that the boy was at Mrs Hillier’s alive and well. J18 On appeal, the court of appeal stated that the undisputed facts were that on 27th June, 1907, the appellant left with the child, saying that she was going to Mrs Hillier’s; that she would pass near the well where the body was found, and that a woman was seen there with the child on a day about that time. The Court observed that alone, whose facts might not be sufficient. It went on to state however that the appellant left with the child in perfect health and that when she returned said she had left it with Mrs. Hillier; she packed up its clothes and said she had sent them to her and later she said that the child was well. The Court observed that all these statements were untrue. The Court stated that the proved facts called for an explanation, and beyond the admittedly untrue statements, none was forthcoming. The^Court went on tc^ hold-Mth^bthe conviction Tjjell founded. J-* ~ It will be clearly seen in all these cases that it was a combination of several strands of circumstantial evidence that led to the inference of guilt. It is also clear that where an explanation was called for, a fabrication was tendered. A guilty mind was found established on the facts, and the fabrication on the accused person’s part. In the case with which we are presently engaged, the appellant left the house with the deceased girl, in the afternoon, with a sack in which the maize was to be carried. The appellant confirmed this in his evidence. They were to put the J19 maize in a sack. He said they did in fact buy the maize and went to a hammer mill at the market, and the appellant paid the money to have the maize ground. This version is at variance with the response the appellant gave to the brother of the deceased, PW1, when asked about the girl. His response then was one of anger, and he stated that he parted company with the deceased on the way after moving for some distance. She turned left while he went right. This prosecution evidence was not challenged in cross-examination. The further untrue statement came from the appellant under cross- examination. He testified that the deceased was at home two days after the 9th, when he had left home to buy maize with her. This assertion was made in the face of clear and unchallenged evidence t£at the last time^the deceased wa^ seens'a. W was when^hqleft in the C'ofnpafiy of the appellant. She was ViolT seen thereafter. There was ample evidence on which the trial Judge found that the girl was last seen alive on the 9th. The claim that she was alive two days later was another fabrication. We have here a number of untrue responses about the whereabouts of the deceased. Further, the appellant surreptitiously left home with his wife, while, a search for the missing infant was on going. In fact the evidence reveals that he never took part in the search. That was certainly not the conduct of an innocent man. Turning to the sequence of events on the fateful day, the appellant, in his amended version at trial, said that he had left the deceased in a queue at the J20 market after having bought the maize. This assertion could not be true for the reason that the deceased was found murdered in a secluded graveyard, with the empty grain bag. We cannot conceive how a stranger would lure the deceased to the graveyard, violate and murder her, empty the grain bag, and take the maize without the grain bag. That suggestion defies logic. Moreover, the appellant said he paid for the grinding of the maize and spoke to the person who was manning the mill that he was to grind the maize. Were that the case, the deceased would logically have stayed to have the maize ground as it would have been paid for. We equally do not conceive how she would have ended up murdered, and the grain bag emptied of the^ground maize. On the evidence, it is manifestly clear that the appellant left with the deceased on the 9th August, 2015. He returned alone and did not even bother to enquire whether she had returned. He expressed no concern about her absence, nor did he join in the search. Instead, he left home without informing anyone. When asked about her whereabout he said he had parted company with her after moving for some distance. He later changed the story, saying he left her at the market to grind the maize, and blatantly lied that she was at home two days after the 9th, that he was not aware that she was missing. On this evidence, the inference that she was left at the grinding mill by accused cannot be drawn. Such an inference would be but the product of unmeasured and J21 illogical reasoning, and we reject it. The facts highlighted above were before the learned trial Judge and to clinch the whole matter, the accused himself led to the recovery of the stone he used to inflict the injuries that overcame the deceased. On those facts, the inference that the appellant murdered the deceased was inevitable. We thus find ground two devoid of merit and dismiss it accordingly. In the result, the conviction is upheld. J22