Yebo v People (SCZ 60 of 1999) [1999] ZMSC 117 (19 October 1999)

IN THE SUPREME COURT FOR ZAMBIA SCZ/60/99 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN WINSTONE KASOKA YEBO APPELLANT AND THE PEOPLE RESPONDENT Coram: Bweupe, DCJ, Chaila, JS and Chibesakunda, JS on 24th August 199 and 19th October 1999 For the Appellant: For the Respondent: Mr Eya, Senior State Advocate, Lusaka Prof. Mvunga of Mvunga and Associates, Lusaka JUGEMENT Chibesakunda, JS delivered the Judgement of the Court Winstone Kasoka Yebo, the appellant, was convicted of the offence of aggravated robbery contrary to Section 294(1) of the Penal Code. The particulars are that he on 9th October 1996, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with others unknown, and whilst armed with a gun did rob Mehrunnisha Yusuf of one motor vehicle namely Toyota Landcruiser Registration No. B786 valued at KI 50,000,000.00 the property of Mehrunnisha Yusuf and at or immediately before or immediately after the time of stealing the said property did use or threatened to use actual violence to the said Mehrunnisha Yusuf in order to prevent resistance to its being stolen. The appellant is now appealing against both conviction and sentence. The evidence before the lower court, which was established beyond reasonable doubt, was that on the 9th of October 1995 PW1 and 2 (Mother and Daughter) went to purchase roses for their garden at Rose Garden in Kabulonga. - J2 - PW2 was driving a land cruiser VX Registration No. Bl786 maroon colour. As they were coming back along Sable Road they realised that they had reached a dead end. PW 2 decided to do a U-turn. As she was doing a U- turn, they both noticed another car, a Camry, white in colour, driving behind them making it impossible for them to make a U-turn. They noticed three occupants in the car behind. One of the occupants was wearing a mask. As PW2 failed to make a U-turn, one of the three occupants in the car behind wearing a mask came straight to PW2 and demanded her to come out of the car. PW2 came out of the car leaving the engine running. PW1 was ordered to stay in the car. One of the assailants who was not masked came into the car and demanded PW1 to show him how the alarm system worked whilst the masked assailant was demanding jewelry, handbag and money from PW2 outside. The unmasked robber jumped into the driving seat and started to drive the car away when the masked assailant jumped at the back of the car and pointed a gun at the neck of PW1 from behind. The two assailants drove with PW1 leaving PW2 behind. They drove along Twin Palm Road; the white Camry was still driving behind them. In the moment of event PW1 was ordered to remove all her jewelry. She did and gave to the robbers. Subsequently she was abandoned in some isolated parts of Twin Palm Road. PW1 thereafter rang the police using a phone at a neighbour’s house and the police came. It was also established beyond reasonable doubt that the land cruiser was valued at KI5 million, Jewelry, handbag and cash was valued at K7 million. PW2 whilst the robbery was going on was shot at twice. The learned trial Judge accepted PWl’s evidence that she although traumatised remained calm and observed the assailant, especially the one who was driving. He accepted that she described his role in the robbery in details and that she sat with him for a long time in the car. He was wearing a pair of blue jeans, T-shirt and a cap. The learned trial Judge accepted her evidence that she was able to identify him at the identification parade one year and three months after on 21st January 1997. The learned trial Judge also accepted that the police subsequently traced the appellant who was identified as this assailant by PW1 to Zimbabwe where he was living as Charles Kabwe. - J3 - The learned trial Judge rejected the evidence of the appellant that he was an innocent businessman, living in Zimbabwe and that he was surprised when he was informed by the Zimbabwean police officers that the Zambian police officers were looking for him. The sole question before the court was whether or not to convict the appellant on the sole evidence of PW1. It was argued that she was frightened by the events of the day more especially the fact that the gun was pointed at the back of her neck throughout the drive and that the identification parade was organised more or less one year and three months after the robbery took place. It was submitted that in this case there was a possibility of an honest mistake by PW1 in identifying the appellant. The learned trial Judge nonetheless convicted the appellant of the offence of aggravated robbery contrary to Section 294(1) of the Penal Code - a lesser offence to the armed robbery under Section 294(2). Prof. Mvunga before us has canvassed the same points that this court should not uphold the conviction on the ground of the possibility of mistaken identity. He has argued that there is sufficient evidence on record to rebut the court’s findings that PWl’s evidence connecting the appellant with the commission of offence was sufficient to establish his guilty beyond reasonable doubt. He went on to say that this rebuttal evidence was:- a) b) PW1 gave two conflicting stories about her assailants. She had testified before Silomba J, that all the attackers in the Camry had masks on their face. But she changed this story before Phiri J, when she testified that only one attacker was wearing a mask and that the appellant who drove the vehicle in which she was forced to remain was not masked; That PW1 gave three different versions of the events of that day. She gave one version to the police. She gave another statement and gave different statement in court when she stated that one of the attackers was masked; and c) That PW1 did not describe the assailant of any special features of the assailants. - J4 - He argued that in any case where identification is by one witness the court should look out at the evidence of that witness and take special notice to which the witness gave any some special marks which facilitated that particular witness in identifying a person the witness alleges to have been involved in the commission of crime. He went on to suggest that relying on a single identification by a witness was not safe because the evidence of one single witness cannot safely remove the possibility of an honest mistake. He argued that although the learned trial Judge relied on the description of PW1 of the appellant and the fact that her evidence was unchallenged when she described the role the appellant played in the robbery, this court should find in favour of the appellant because she did not describe to the police nor to the court any particular feature of the appellant which facilitated her recognizing him but only described in details his role and the role of the other robbers played in the robbery. He went on to elaborate on this point by arguing that the learned trial Judge wrongly accepted the evidence of PW4, who relied on the evidence of PW1 to trace the appellant to Zimbabwe. The learned trial Judge misdirected himself on that point as there was no special description by PW1 of the appellant and there was a break in the chain of evidence making it possible not to exclude the possibility of an honest mistaken identity of the appellant by PW1. He made reference to the case of Chimbimi Vs The People drawing distinction with that case. Submitting that, in that case the single witness knew the person she so identified. Connected to this point, he argued that there was no evidential link between the appellant and the passport recovered in Kabwata, and yet PW4 extracted a photo from this passport recovered in Kabwata which in the absence the court should have held it did not correspond with the appellant’s photo. He argued that there was a dereliction of duty on the part of the police in that neither the passport in the name of Phillip Mwinyi recovered from the Kabwata house which house the appellant told the court he never lived in, nor the passport said to have been used in Zimbabwe in the name of Charles Kabwe was produced to court. In accordance with the case of Kalebu Banda Vs The People that dereliction should have been interpreted in favour of the appellant. - J5 - He also submitted that according to the evidence of his client before the court, the police refused him to have access to both the passports and the diary which he said should have enabled him to examine his whereabouts on the day which the State alleges he committed the offence in question. From this scenario he argued that the court should have found that there were several possible inferences to be drawn, some of them in favour of the appellant. One such inference he argued was that probability that there was no such passport or that the passports bore different photos from the appellant’s photo. Therefore, he argued it was misdirection by the learned trial Judge to have drawn one inference against the appellant as the only reasonable inference to be drawn. The appellant should have benefited from these various possible inferences or the benefit of the doubt obviously should have been given to the appellant. He also challenged the conclusion by the trial court that the identification parade was fairly and properly conducted. He argued that the parade was not fair, neither was it properly conducted. He pointed out to us that on the parade, contrary to the testimony of PW4, the participants were not of similar statue nor of similar characteristics. The court ought not to have relied on that evidence of identification. The State supported the conviction although initially they did not. We have looked at the evidence before us and we have seriously pondered over the evidence before the High Court. It is abundantly clear that the evidence of PW1 was unchallenged even on the evidence of identification of the appellant. Contrary to Prof. Mvunga’s submission that PW1 was traumatized and therefore could mistakenly identify the appellant, the court below accepted that she stayed calm with him in the vehicle. He was unmasked and that she was able to identify him even after one year and four months. Prof. Mvunga argued that the only way PW1 could possibly have identified the appellant was that she had been asked to talk to him. As testified that she talked to him. We do not accept that as according to PW1, this was accepted by the learned Judge. She drove with this robber from Sable Road to Twin Palm, where she was abandoned and also the robbery took place in daytime. Her sight of the robbers was no impaired. She testified that she was not confused although traumatised she described the role the two robbers played. - J6- The learned trial Judge accepted that. We have no difficulties in accepting that. We hold that she had sufficient time and had no impairment in observing the robber. Prof. Mvunga had also attacked the learned Judge’s reliability on her identifying the appellant because according to him she gave different statements to the police and also before the two courts. Firstly there was no such evidence of two contradictory statements before the two learned Judges, Silomba, J and Phiri, J. PW1 was not cross examined on that. Also it is trite law that statements made to police officers are not of any evidential value until they are repeated before the court. They are used as a guideline as to what could possibly be said by a witness in court. The evidence which the court has to evaluate at the end of the day is that evidence which is given in court viva voce and documentary evidence produced in court which evidence is subjected to the well established and accepted method of testing, that is cross examination. PW1 was only questioned on how long she was with the assailants. She was not cross examined on the submission which the learned counsel now is asking this court to take into account. She described in details the role of each robber and described the clothes of the appellant. We have no hesitation in confirming the findings of the learned trial Judge that there was no possibility of mistaken identity. The learned counsel for the appellant has canvassed the argument that there was dereliction of duty by the police in that the passport photo recovered from Kabwata in name of Philip Myinyi nor the passport he was using in Zimbabwe in the name of Charles Kabwe was not produced before the court. We hold that the evidence was not relevant to issue which was before the court. We therefore find that the case of Kalebu Banda Vs The People was not relevant to the issue before us. We find no merit in the appeal. We dismiss the appeal. We confirm the conviction and sentence by the lower court. - J7 - B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE