Mwansa and Ors v People (SCZ Appeal 140 of 1993) [1993] ZMSC 100 (18 April 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 137-140 of 1993 HOLDEN AT KABWE (Criminal Jurisdiction) 2 4 WILLIAM MWANSA SHIYENGE' DAVIES LAMECKCHANDA M80YI GEORGE MOYO Appellants vs THE PEOPLE $ Respondent ■ • • CORAM; Chai la, Chlrwa and Muzyamba &J. S. 8th March 1994 and 18th April 1994 For the first three Appellants: Mr. J. F. Silva, Assistant Senior Legal Aid For the fourth Appellant In person For the Respondent : Mr. S. A. G. Twumasl, Acting Senior State Advocate ’H. JUDGMENT Chaila, J. S. delivered the judgment of the court. This is an appeal by four appellants against convictions and sentences for the offences of aggravated robbery. Tl^appellants were charged with two counts of aggravated robbery contrary to . Section 294 (2) of the Penal Code ; ,'v' ' • .'7; ' The particulars of the first count were that-they on 13th day .... of December 1991 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia jointly and whilst acting together, whilst armed with a gun, robbed the complainant of numerous items valued at K3,025,000 and cash amounting to K287,000 and that before or after the robbery they used force. ■ '' ' 7A ......... „■ 7 - / The particulars of the second count were that; the appellants r . .<'v'• on the 13th day of December 1991 at Ndola in the Ndpla District of /2....the Copperbelt 7 < - J2 - the Copperbelt Province of the Republic of Zambia* jointly and whilst, armed with a gun robbed another complainant Irene Phiri a watch valued at K350 and that at or Immediately before or limiediately after the time of such robbery* did use or threatened to use actual violence to the said Irene Phiri in order to obtain the said property. A1, A2 and A3 were after being convicted on both counts sentenced to 30 years imprisonment with hard labour after the judge found that no firearm was recovered. He was not able to satisfy himself that a firearm hjUbbeen used and convicted them of aggravated robbery not Involving the use of a firearm. The 4th appellant was sentenced to 20 years imprisonment on both counts. The brief facts of the case are that PW1 who was the complainant In the first count, on 13th day of December 1991 closed his filling station at Hillcrest in Ndola around 19.15 hours. The Manager of the filling station took to his house the sum of K287,000 which were . the takings at the filling station on that day. After the money1 had been given to him, PW1 drove the Manager in his car to Bank" of Zambia where he dropped him. PHI then drove back to his house and when he reached the gate, he hooted twice and the.gate was opened. He parked his vehicle and locked it and entered his house. He had with him a young boy who he had adopted. When he entered the living room, he saw a man who was dressed in jeans and a black jumper who pointed a gun at him and told him to;; come in and further ordered him to sit down on a chair. PW1 then realised that his daughter Irene was lying on the ground and his niece Beatrice was sitting on a settee holding a smallbaby. After a short while, the door leading to the passage opened : and he saw a tall man who was also armed with a gun enter the living room with his wife. The tall man asked him.for the keys of the Toyota Hilux and he also asked him for his rifle. He told him that he did not have the keys to the Toyota Hilux as they had been taken away by the Manager of his filling station and he also told him that he did not own a rifle. The bandits were three in number and the smallest one of them came to where PW1 was seated and searched his pockets and took put the keys for the Toyata Corolla. He also took off his wrist watch. The tall one then saw the keys of the • ; S* /3... Hilux which Hilux which were lying on the cabinet and picked them up and 'gave them to the stout bandit. The shout one then left the living room whilst the tall one remained In the living room. Hi$ adopted son started crying and the tall one pointed a pistol at the child and told him to shut Up, He also asked PW1 for a rifle again and he said, he did not have a rifle. Then the small bandit started moving out the household goods from the house. He was looking at the bandit and the tall one told him to look down or else he would shoot him. PW1 looked down for a few minutes but eventually looked up again. The tall one eventually found his rifle which was locked up in the wardrobe andMook it. The bandits then packed all the valuables in the Hilux and ordered them to sit in the passage and later locked them in the toilet and took' away the keys. The ; bandits drove off in the Hilux and he tried to break the door of the toilet from Inside but failed but eventually his step son&.who had been away came and broke the door of the toilet and released them. PW1 said that the whole incident lasted about 45 minutes and that ' there were lights in the house and he was able to see the physical ‘ features of the bandits. PW1 said the small one was dressed in a ....................................................................' ’J ' brown shirt with small white checks and a dark grey trousers and that the short man was dressed in a yellowish shirt and a black ' trousers. PW1 further stated that when he came out of the toilets he went outside and noticed that the Toyota Corolla was still: there but the keys had disappeared and the boot was open and PW1 walked around the garden looking for the security guard but could not find him. After a while, two policemen came to the house and he then compiled an inventory of what had been stolen, which formed part of the charge. PW1 further stated that some of the items were later recovered and was requested td identify them at the Flying Squad In Ndola. He further stated the Toyota Hilux was not recovered and that on the 18th day of December, 1991, he attended an identification parade where he identified the tall one as A1, the stout one as A2 and the small one as A3. PW1 / testified that the security guard who was on duty at the time of the robbery, was the fourth accused person. He had seen A4 when he opened the • ; /J;/. ^5 • ■' gate for him and after that he did not see him again until he , saw him in court. PW1 stated that accused No. 4 had worked for him for two months and he did not see him at the identification /4...parade. - J4 parade. The prosecution called the wife PW2 who narrated what happened on 13th December, 1991. She confirmed the robbery. PW3 who was the daughter of PW2 also testified as to what - .. transpired in the evening of 13th December, 1991 at their horned She confirmed that her watch was stolen from her. The matter was investigated by the police. Some items were ; recovered and suspects were arrested. The identification parade was held at the police station where three appellants were identified and the security guard the fourth appellant was also arrested. Mr. Silva argued the appeal for three appellants A1, A2 and A3. The general ground of appeal is that the identification of the first, second and third appellants was poor. He has supported this ; ground by his argument that the evidence regarding identification came from PWs 1, 2 and 4. Those witnesses were at home during the robbery and that they testified that they had ample time to observe the bandits. But "he argued that on perusal of the .. statements to the police they did not give any description of the bandits to the police. Mr. Silva has further argued that' the Identification parade was not fairly or properly conducted. PW1 had an opportunity to see the first appellant before the parade i.e. at the filling station. He has further, argued that suspects were brought to the parade after others had lined up and. that outsiders were allowed to view the parade. As regards-AWiMr. Silva has argued that A1 never led PW11 to recover goods.-’ The learned counsel argued that the learned trial judge erred by linking the arrest of A1 with the arrests of A2 and A3. He concluded that it was dangerous to allow convictions of the three appellants to stand considering the bad identification of, the suspects. A4 relied on written submissions. His gist of argument is that he did not participate in the robbery as found by the learned trial judge and that he had not conspired with the robbers. He maintained that conspiracy has not been proved. He argued that after going through the terrible experience with the robbers he was not normal and he was confused and explained why he had not reported the matter to the nearest police station. As to sentence- A4 has argued that he was a victim of circumstances and that /5...sentence of 20 - J5 - sentence of 20 years was too excessive. Counsel for the State Mr. Twumasl in supporting the convictions, has argued that identifying witnesses had ample opportunity to observe the assailants. The witnesses were with them for along time. It took about 45 minutes to one hour and lights were: on. During the robbery the assailants did not cover their faces. He: has argued that the argument put forward by the defence counsel that witnesses never gave descriptions to the police cannot hold water because the witnesses were never challenged on the descriptions. On identification parade regarding A1» Mr. Twumasl submitted that the identification was hehT properly. He conceded, however, that Al was seen by PHI at the filling station before the identification parade but he was identified by PWs 2, 3 and 4. Mr. Twumasi has argued that even if PW1 had seen Al there was still further identification by other witnesses who had not seen Al before the. parade. As regards the argument that suspects were put on the line later, the learned Senior State Advocate argued that there, was evidence of the officer who conducted the parade which made it clear that the parade was properly conducted and that there was no unfairness on the identification parade. The learned Senior State Advocate further argued that there was further evidence ■ regarding Al on the lead to the places where goods were recovered. ■ 'J- • As regards the second and third appellants same arguments regarding A1 apply. In addition A2 was seen by PW5 with the vehicle which wa$ subject of the offence. A2 had approacched PW6 to make arrangements to park the vehicle at PW6‘s home. The witnesses identified the vehicle as being Registration No. ACC 8900 and A2 was Identified by three witnesses PWs 1, 2 and 5. As regards the third appellant, the Senior State Advocate , submitted that he had been identified by PWs 1 and 2 and that .identification was proper. As regards A4 Mr. Twumasi argued that the learned trial judge was correct in his finding that he had conspired to commit the crime with other appellants. He has argued that on the day in question, the fourth appellant was at PW1’s home. PW1 saw him when he opened the gate when PW1 was going out. The fourth appellant was seen when PW1 returned but disappeared from the scene. The fourth appellant never reported the matter to the police that he was abducted that a reasonable person would /6....have reported * J6 - - • .j ■ have reported the matter to the nearest police station. His conduct did not augur well. The learned trial judge was therefore right in his conclusion. <*</ . 4 We have considered the submissions of both counsel, the evidence on record and the whole case regarding Ai, A2 and A3 centred on identification. In his judgment the learned trial judge went in detail in considering the circumstances surrounding the commission of the case. He came to the conclusions that the appellants did not attempt to hide their faces. There were lights In the house. The robbery took about 45 minutes. He came to the conclusion that witnesses had ample time to ' observe the^ assailants. He further considered the evidence of Identification at the police station and leading by Al of the police to certain, places where goods were recovered. It Is true that the evidence showed that before the identification parade. PHI saw At at a. filling station. The State had conceded that PW1 had seen At but have argued that A1 was further identified by other witnesses. •; We agree that it- was unfortunate for to have, seen A1 before the Identification parade. That evidence of PW1 regarding' the identification at the police station should have._been received with caution. It was a misdirection on the part of the learned » • . • • * trial judge to have failed to do so. However at the parade A1, as , . * <■ • ■ • ’’ 'rZ* / ' Mr. Twumasl has rightly pointed out. even If that evidence was C; " ■ excluded, there was evidence of other witnesses on Identification. We agree with his argument that although PWVs evidence on identification of A1 at the police station was wrongly admitted, the prosecution produced other evidence. There is evidence as regards A2 and A3 of other prosecution witnesses which made the prosecution case very strong. We find that there was overwhelming evidence against A1, A2 and A3 and that the learned trial judge was on firm ground to convict them of the charges.^; The appeals against convictions and sentences are therefore dismissed. .i; As regards A4, we considered his submission and his grounds of appeal. The conviction was based mainly on his conduct when PW1 drove back to take the service manager to town. The fourth appellant was at home and opened the gate for PW1. When PW1 came' back he hooted, the gate was opened for him. PW1 entered into the • • •• /7....house. He • • - J7 - house. He found robbers in. The fourth appellant was never seen and never made a report to the police until he was arrested. Mr. Twumasi has argued that A4’s conduct did not augur well and that the learned trial judge was correct in concluding that he conspired with the other robbers. In his arguments A4 has maintained that after going through traumatic experience with the robbers and when he realised he was dropped in Kitwe his reaction was to go and report to his employers. He went to the railway station with a view to catching a train for Ndola. The police did confirm that they found him at railway station. We agree with the observation of the learned Senior State Advocate that his conduct raised some suspicion about his involvement. But the prosecution did not adduce any evidence to rebut the appellants story that he had been abducted. The learned trial judge in his judgment simply said? ■, ■ "Although I am satisfied that A4 did not C actively participate In the actual robbery on the , evidence adduced before me, I am satisfied that he t. had conspired with Al, A2 and A3 to facilitate the robbery and I do not accept his evidence that he was abducted after the robbery as I find that he accompanied the other three accused persons willingly as he was part and parcel of this enterprise,M - • There was no evidence adduced by the prosecution Improve that the fourth appellant willingly accompanied the other appellants. Although A4‘s story may not be true it could, ..however, reasonably be true. We are of the view that the benefit of the doubt should have been given in favour of the fourth appellant. We note that the fourth appellant was given 20 years imprisonment with hard labour in respect of both counts* whereas the other appellants were given 30 years imprisonment with hard labour. If the learned trial judge was convinced that there was conspiracy between the three appellants and the fourth appellant what was the justification in the fourth appellant being given a lesser sentence? If the fourth appellant had conspired with other people to Commit the offence. In our view, he should be as guilty as the others. There was no reason why the learned trial judge imposed a sentence of 20 years on the fourth appellant when he was as guilty as the other appellants. ■ /8... For the fqreging For the foregoing reasons we find that it will be unsafe to allow the conviction of the fourth appellant to stand. The appeal is therefore, allowed, the convictions are quashed in respect of both counts and sentences of 20 years imprisonment with hard labour are