Nyirenda v People (SCZ Appeal 14 of 1997) [1999] ZMSC 74 (2 February 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 14 OF 1997 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: WATSON NYIRENDA APPELLANT VS THE PEOPLE RESPONDENT Coram: Bweupe, DCu, unaila and Chlrwa, JJS 5th May, 1998 and 2nd February, 1999 For the Appellant : Mr. C. K. Phiri, Mulungushi Chambers For the Respondent: Mr. W. Wangwor, Principal State Advocate JUDGMENT Chai la, JS, delivered the Judgment of the court. This is an appeal by the appellant against the convictions on two counts of murder and against death sentences. The allegation was that the appellant, acting together with another person, on 16th January, 1996 at Mufulira in the Mufulira District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together, murdered one MAXWELL KUNDA and his wife VASTE KUNDA. The facts as found by the learned trial judge were that on the material date the couple and their family while sleeping in their house were attacked by thieves at night. The thieves using firearms broke Into their rooms and demanded money from the couple. When money was not forthcoming they were shot by the thieves and they died. The witnesses PW2 and PW3, the children, were part of the persons that were attacked and they were also - J2 - attacked. The two were the only witnesses on facts. PW3 was a child of tender years. In his judgment the learned trial judge came to the conclusion that the murder had been committed and what was in issue was the question of identity of the collaborators W; persons responsible for the murder. The learned trial judge properly directed himself as to the evidence given by the witnesses with some interest to serve and he warned himself that he had to approach their evidence with caution and care. The learned trial judge then proceeded to consider the evidence and relied heavily on the evidence of PW3 in convicting the appellant. The main issue in this appeal, according to the grounds filed, is the identification of the persons who committed the offences'. Mr. Phiri, counsel for the appellant has relied on three grounds which he has amply argued in his written heads of argument. He has relied heavily on these heads. The first ground is that the learned trial judge misdirected himself when he convicted the appellant on uncorroborated evidence of PW3. He argued that the learned trial judge was aware that PW3 was of tender years and that he needed some confirmation of his evidence so as to remove any doubt about his reliability or creditworthness of his evidence. Mr. Phiri argued that the court did not give reasons for concluding that the identity was clear. The incident took place at night after the witness had watched a football match. The witness must have been tired and frightened. Mr. Phiri, on corroboration drew our attention to the cases of Chisha vs The People 1980 ZLR; Penias Tembo vs The People 1980 ZLR; Mweemba and Another vs The People 1973 ZLR. Mr. Phiri further argued that there was no finding of evidence to confirm the child’s evidence. Mr. Phiri argued ground 3 first before he tackled ground 2. This ground is that the learned trial judge failed to consider that PW3 in the identification of the appellant could have made an honest mistake. The counsel argued that there was a possibility of an honest mistake being made. The observations were that PW3 was not certain; the sitution was full of stress. He relied on the case of Bwalya vs The People (1975) ZLR, He referred us further to the case of Chlmbini vs The People (1973) ZLR. The counsel argued further that the question of risk of an honest mistake in the identification of a single witness was considered by the Court of - J3 - Appeal in the case of Nyambe vs The People (1973) ZLR (at page 228) where it was held that. "There is a great danger of honest mistake in identification, particularly where the accused was not previously known to the witness............." The counsel argued that in this present case PW3 did not know the appellant before. The opportunity for observation was full of stress and PW3 must have been so frightened that he could not correctly concentrate to observe the accused. In reference to the Bwalya vs The People already referred to, the counsel argued that it was not sufficient to be satisfied that a witness is honest; the court must be satisfied that the possibility of an honest mistake has been ruled out. He argued that in this particular tasn, the possibility of an honest mistake had not been ruled out. The learned counsel further complained about the assessment of the evidence by the learned trial judge. He further complained on the position taken by he learned trial judge on the issue of challenging the Identification of the appellant by PW3. The counsel argued that the Identification by PW3 had been challenged and that the learned trial judge misdirected himself in concluding that the identification of the appellant by PW3 had not been challenged. The other ground which in the Head of Arguments is listed as ground 2 was that the learned tial judge erred in law by rejecting DW2's alibi without giving reasons why he rejected the same. Mr. Phiri on this ground argued that the rejecting of the alibi was wrong. The learned counsel argued that the learned trial judge misdirected himself when he concluded that the crime was committed after 01.00 hours. The counsel argued that it was a misdirection for the court, in the absence of specific time when the incident took place to assume that the incident took place later than 01.00 hours on 26/1/96. He argued that failure to give time of the Incident by prosecution witness as against the time of 01.00 hours given in alibi by DW2, should have raised doubt in the mind of the trial court. That doubt should have been resolved in favour of the appellant. Mr. Wangwor, learned Principal State Advocate in supporting the conviction has argued that the evidence was good, the learned trial judge was correct in coming to the conclusion that the appellant committed the - J4 - offences. He referred us to the evidence of PW3. The learned counsel argued that PW3's evidence was not only credible, but was also reliable. He referred us on identification to the evidence of PW4. On the evidence of PW3 the counsel argued that PW3 was in the room and there was enough light and had sufficient opportunity to see everything. The counsel further argued that the offence was definitely committed after mid-night. On the Nyambe vs The People already referred to, the learned counsel argued that the case referred also to the adequacy of evidence of personal identification and that each case will depend on its own circumstances. We have seriously considered the evidence on record, the written submission by the appellant's counsel and the learned counsel's oral submissions before us. We are greatly indebted to the counsel for the authorities brought to our attention. We have read them and we are very grateful to the counsel. As the learned trial judge in his judgment pointed out, the main issue in this appeal is the identification of the persons who committed the offences. The learned trial judge in his judgment stated: “There is no dispute that they died as a result of gun shot wounds. The only issue in contention is as to the Identity of these murderers or any of them since they all had a common intention or purpose to kill in order to steal. I am also live to the fact that the key prosecution witnesses are related and so are defence witnesses, their evidence ought to be treated with caution." The learned trial judge further continued in his judgment and said: "I am also aware that PW3 Is of tender years and that what he said needs some confirmation so as to remove any doubt about his reliability or credit-worthiness of his evidence." Mr. Phiri has strongly argued that the learned trial judge did not find this confirmation. The learned triwl judge in his judgment in considering the evidence of PW3 said that PW3 had sufficient opportunity to observe the appellant and the learned trial judge was satisfied that PW3 had enough opportunity to observe the appellant that night. We have carefully read and considered the judgment of the learned trial judge and we are in some difficulty in finding the evidence which would confirm or support the evidence of PW3. The learned Principal State Advocate has urged us to take into consideration the evidence of PW4. PW4 is a Police Officer who conducted the identification parade. PW4‘s evidence was that PW3 identified the appellant on the parade. - J5 - Recently in the case of Godfrey Mwale and Benson Kampamba vs The People SCZ Appeal No. 159/97, the Supreme Court was faced with a similar situation. In that case PW1 was collected fronbeer-drinking by the deceased whom she described as her grandfather, brother-in-law and on cross-examination described him as her husband. They went in the company of PW2. On their way from beer-drinking the deceased and PW2 stopped to answer the call of nature while she stood at a distance from them. PW1 testified that shortly after, the deceasd approached her saying, “I am dying Freda* followed by two men who she said she was able to identify. According to further evidence of PW1, the deceaieu s imrt was covered in blood. They proceeded and arrived at his home from where they looked for a taxi which subsequently took the deceased to the hospital where he died. According to the prosecution case, PW1 saw the two men at the scene with the assistance of light from the market and knew them as her neighbours. She identified them at an identification parade at the police station, conducted by PW5. In his judgment, the learned tial judge observed that the evidence of PW1 required further support to be reliable. The court found this support in the identification evidence of PW1 at the parade conducted by PW5 and the learned trial judge proceeded to convict the appellants. On appeal to this court, we said: "We have no hesitation in pointing out that these arguments by the State beg the question. The learned trial judge accepted that the evidence of PW1 was not reliable. PW1 's own evidence of identification at the parade could not therefore support her own evidence again of knowing the appellants. In our view, the learned trial judge having found that PWl's evidence required some further support to be reliable, PWl's evidence of identification could not have amounted to further support because it is PWl's evidence as a whole which required support." In this case PW4's evidence cannot be considered as evidence to support PW3's evidence on Identification. Despite the learned trial judge's conclusion that there Is need to have the evidence of PW3 confirmed by other evidence, the learned trial judge did not find or attempt to find any supporting evidence. This in our view was a misdirection on his part. - J6 - The evidence of PW3 was not supported by the evidence of PW4 or PW2 on the Identity of the assaillant. We are unable to find on record any evidence to support PW3 on identification. It would therefore be dangerous to allow the convictions to stand. The appeal is therefore allowed. The convictions are quashed and the sentences are set aside. B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE *”*’d7k7 chirwa ’ SUPREME COURT JUDGE