Yohanne Libonde v The People [2019] ZMCA 365 (24 April 2019)

1 IN THE COURT OF APPEAL FOR ZAMBIA APPEAL 116/2018 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: (cid:9) YOHANNE LIBONDE (cid:9) AND THE PEOPLE (cid:9) .•. j) (cid:9) APPELLANT RESPONDENT CORAM : CHISANGA JP, KONDOLO SC, MAJULA, JJA On 22nd January, 2019 and 24. April, 2019 For the Appellant (cid:9) : Mr. H. M. Mweemba, Principal Legal Aid Counsel- Legal Aid Board For the Respondent (cid:9) : Mrs. M. C. Mwansa Deputy Chief State Advocate- National Prosecution Authority JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court CASES REFERRED TO: 1 Joseph Mulenga and Another v The People (2008) 2 ZR 1 2. Donald Fumbelo v The People SCZ Appeal No. 474/2013 3. Lumange Wakilaba v The People (1979) ZR 74 4. Subramaniam v Public Prosecutor [1956] 1 W. L. R. 965 5. Shamwana v The People (1985) ZR 41 6. Mbomena Moola v The People SCZ Judgment No. 35 OF 2000 LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87, Laws of Zambia (cid:9) I The Appellant has appealed against a conviction of Murder contrary to J 2o115 Section 200 of the Penal Code. The brief background to this Appeal is that the Appellant was, on 27th November, 2015, engaged is a scuffle with the Deceased, Size Mbewe, during which the Appellant struck the deceased with an iron bar. The incident was witnessed by Stanley Libonde, the Appellant's brother, who reported it to Matulino Ingwe (PW1) around 22:00 hours. PW1 rushed to the scene and found the deceased lying on the ground, dead, but the Appellant had run away. He instructed the neighbourhood watch to search for the Appellant who was apprehended the following morning. When PW1 asked the Appellant why he had killed his uncle he retorted that it was because his uncle had called him a thief. The Appellant was consequently handed over to the Police. PW2, Detective Sergeant Felix Mulenga, investigated the incident and when he visited the scene, he found the deceased's body stretched out in a pool of blood with multiple injuries on his head and face. PW2 was informed by the deceased's brother Stanley Libonde that he had retrieved an iron bar from the Appellant during the altercation. Having all this information at hand, PW3, Detective Chief Inspector Christian Kalonde Mutale, took the Warn and Caution statement from the Appellant. The Appellant stated that his uncle accused him of being a thief and started beating him, so in order to defend himself, the Accused retaliated. PW3 J 3of15 stated that Stanley told him that he had heard noises and when he went to see what was going on, he saw the Accused standing over his uncle whilst holding an iron bar. In his defence, the Appellant stated that surprisingly, he was apprehended for this particular offence on 13th October, 2015, some weeks before the deceased passed. He further stated that whilst in custody he heard a rumor that his uncle had died and according to him, the investigations into the deceased's demise only begun on 27th November, 2015. In his mind, he was surprised that he had been accused of murdering his uncle when he was waiting for testimony from an eye witness to confirm the allegations. The trial Court made several findings of fact based on the testimony of PW1 and concluded that the Prosecution evidence was clear and concise. These findings included the fact that the Appellants brother Stanley Libonde told PW 1 that the Appellant had killed his uncle, a story which the Appellant later confirmed. She further found that the iron bar used in the attack was recovered and the injuries on the Postmortem Report were indeed consistent with the attack. The learned trial Judge discarded the Appellant's defence for being a complete afterthought and stated that it didn't make sense and was at variance with the line of cross examination taken by his defence Counsel. In considering a possible defence of provocation, the learned Judge found that even though there appeared to have been provocation, no reasonable person A a would have reacted in the manner that the Appellant did. Further, his reaction was unwarranted and disproportionate to the actions of the deceased on the J4 of 15 material date. The Appellant appealed and assailed the Judgement on three grounds, namely: 1. The learned trial Court erred both in law and in fact when she convicted the Appellant on evidence that did not meet the required standard. 2. The learned trial Judge erred both in law and in fact when she found that there were no substantive issues raised in the cross examination of PW1. 3. The learned trial Judge erred both in law and in fact when she found no extenuating circumstances and sentenced the Appellant to death. At the trial both Parties relied on their respective submissions as contained in the filed Heads of Argument. The Appellant's Counsel in Ground one argued that the evidence leading to the conviction was based on evidence from witnesses who were not present during the altercation that led to the death of the Deceased. PW1's evidence was inadmissible hearsay which should not have been considered by the Court. He attacked the evidence of PW2 where he stated that he recovered the Iron bar from Stanley Libonde when the said person was not called as Witnesses to attest to those facts. Counsel further submitted that PW3 also narrated his (cid:9) a evidence on the basis of second hand information and the Court erred when it received evidence from PW3 which amounted to a confession contrary to the procedure for admission of confessions into evidence. J 5 of 15 Counsel for the Appellant admitted that the defence did not object to the confession but insisted that it is the duty of the Court to inquire with an Accused person whether or not he objects to the admission of a confession. He called to aid the case of Lumange Wakilaba v The People (3) and submitted that the confession relied on by the Court be expunged from the record. In response, the Respondent's Counsel submitted that in as much as part of PW 1 's evidence was hearsay, his recounting of the conversation he had with PW1 when PW1 told him that he had killed the deceased was not hearsay. He argued that the confession was not challenged in cross examination and the trial Court cannot therefore be faulted for believing that piece of evidence. Counsel cited the case of Joseph Mulenga and Another v The People (1) in which the Court held that an accused person must challenge facts brought out by Prosecution witnesses in narrating occurrences, failure to which entitles the Court to find the accused guilty, and; Donald Fumbelo v The People (2) in which it was held that where an accused person does not contradict Prosecution witnesses during cross examination, he is likely to be disbelieved when he brings up his own version of the story for the first time during his defence. (cid:9) J 6 of 15 According to the State, the facts presented by the Prosecution witnesses were not challenged thus it was not in dispute that the Appellant battered the deceased after he accused him of being a thief. It was conceded that the Court should have enquired as to whether or not the Appellant objected to the confession statement but that it was an irregularity that could be cured as there was no miscarriage of justice. It was reiterated that the confession was not in dispute which was why none of the Prosecution witnesses were cross examined about it and, in any event, the Appellant was fully represented by Counsel who raised no objection during trial and to do so at this stage was clearly an afterthought. It was summed up that, in any event, the confession was not made to the police but to PW1 who was not a person in authority and for that reason there was no need for the Court to activate the Judge's rules to determine whether or not to receive that evidence. In support of this the case of Mbomena Moola v The People (6) was cited. With regard to Ground two where the trial Judge stated that no substantive issues were raised during the cross examination of PW 1, at page 63 of the Record of Appeal, Counsel for the Appellant alluded to the fact that PW1 was cross examined as to why the statement he made to the police was silent on his allegation that the Appellant confessed to him about killing the deceased. It was submitted that the omission of that detail from his statement to the Police when his mind was fresh was actually pertinent because it raised suspicion and the trial court should have addressed the issue. He opined that there being no direct or circumstantial evidence implicating the Appellant, the ( Is absence of the alleged confession would leave no evidence to warrant a conviction and success on this ground alone should lead to the conviction J 7of15 being quashed. Counsel for the Respondent replied by submitting that during cross examination PW1 confirmed that he did not witness the incident but spoke to the Appellant. It was submitted that the said cross examination was aimed at highlighting inconsistencies in the witness' deposition and the statement made in Court but the effort had failed. It was further submitted that a witness' deposition is not evidence which the Court can rely on. The State further argued that the Court cannot be said to have misdirected itself merely by saying that, "There were no substantive issues raised in cross examination" but that the Appellant should have pointed out which substantive issues the Court had left out and those issues are what should have formed part of the grounds of appeal. Finally, under this ground, the Respondent submitted that PW1's incarceration for non-attendance as a witness in Court cannot constitute a reason to doubt his testimony. It was opined that PW1 did not fall into the category of suspect witnesses that would have obliged the Court to exercise some caution when receiving it and that, in any event, there was overwhelming evidence to support the conviction. Ground 3 was raised in the alternative urging this Court to find extenuating circumstances on the basis that the law recognized a failed defence (cid:9) a of provocation as an extenuating circumstance. It was pointed out that the J8 of 15 evidence accepted by the trial Judge alluded to provocation such as on page 14 of the Record of Appeal where PW 1 stated that the deceased had slapped the Appellant. Reference was also made to page 33 of the Record of Appeal where the Appellant told the Police that his uncle had slapped him. On this basis it was argued that the trial Judge should have found extenuating circumstances and imposed a penalty other than death. Counsel for the Respondent submitted that even though the defence of provocation was not raised by the Appellant, it was considered by the trial Judge who, after considering the facts of the case, correctly found that there was no failed defence of provocation and thus no extenuation and correctly imposed the death penalty. We have considered the Record together with the spirited arguments from both Counsel. We shall consider the grounds of appeal in the order in which they were filed. We shall begin by addressing the Appellants argument in ground one that PW 1 's evidence was inadmissible such that a finding on this ground would render the rest of the grounds academic. The law on hearsay was aptly put in the case of Subramaniam v Public (4) which stated that: "Prosecutor Evidence of a statement made to a witness by (another) person (cid:9) may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the (cid:9) J 9 of 15 truth of what is contained in the statement. It is not hearsay and is admissible when it is purposed to establish by the evidence, not the truth of the statement, but the fact that it is was made. The fact that the statement is made quite apart from its truth, is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement is made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter as the witness or of some other person in whose presence the statement was made" This principle was given the stamp of approval in Shamwana v The People (5), when the Supreme Court stated as follows: As we have already noticed (see Subramanian (44), evidence of an out-of-court statement made in the absence of the accused to a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is, however, not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. And so, it is the purpose for which the evidence tendered that is the key to its admissibility. J 10 of 15 Reverting to the facts at hand, PW1 testified as to what the Appellant told him. Whether or not this information was true was to be ascertained from the rest of the evidence. On the basis of the cited authorities, the evidence of PW1 in that regard was not hearsay therefore, his account of the events as they unfolded was based on what he perceived and what the Appellant told him and, in that regard, his evidence was admissible. The next issue is the assertion that PW 1 's account of what the Appellant told him amounted to a confession by the Appellant to PW1. We agree with learned Counsel for the Respondent that PW 1 was not a person in authority, thus the rules that apply to confession statements made by persons in authority did not apply to what the Appellant allegedly told PW1. This issue was conclusively addressed in the case of Mbomena Moola v The People (6) cited by counsel for the Respondent, when the Supreme Court commented on how the Judge's rules should be applied; "As we said in the case of Banda v The People (4) at page 113 that:- 'Those rules were designed to guide Police Officers in dealing with suspects and prisoners in the course of investigating crime. This Court takes judicial notice that the training of Police Officers includes instructions in administering the warn and caution. There is no suggestion that these rules are intended to apply to persons other than those whose normal J 11 of 15 duties pertain to investigating crime. We are unaware of any law or convention which constitutes a village headman as an officer charged with responsibility of investigating crime. In practice, when a person suspected of committing a crime is reported to a village headman this is essentially for the purpose that the headman should use his good office to cause the suspect to be conveyed to the authority of the Police; he is the intermediary between the inhabitants of his village and the Police, sometimes through his chief, a typical headman therefore is a man who would not know, nor should he be expected to know what creature warn and caution is. On a careful review of the position we are satisfied that the Judges' Rules do not contemplate, as persons who should administer the warn and caution to suspects, persons like village headmen because it is not their normal responsibility to investigate criminal cases.'" On the basis of the cited authority, even though PW1 was a deputy headman, he was not a person in authority and the trial Judge was therefore on firm ground when she accepted the evidence of PW 1 as it related to the Appellant admitting that he had killed the deceased after he called him a thief. The first ground of appeal is consequently dismissed. Counsel for the Respondent took issue with Ground two in arguing that it was no ground of appeal at all, mainly because it was crystalized around a J 12 of 15 statement by the Judge at page J3 of the Judgment where she said, "There were no substantive issues raised in cross examination". We beg to differ with the Respondent because even though this ground of appeal could have been presented in a clearer form, it is plain to see that the thrust of this ground is that the cross-examination of PW1, highlighted an inconsistency between the statement he gave to the Police and the evidence he tendered in Court, specifically that in his statement to the Police, PW1 did not state that the Appellant had told him that he had killed his uncle. This is in fact a substantive issue because inconsistency or conflicting statements made by a witness are a factor when considering the credibility of such a witness. We would therefore agree that the trial Judges' statement that there were no substantive issues raised in cross examination, was in fact erroneous. It was further argued on this point that the inconsistency highlighted during cross examination meant that the trial Judge should have considered PW1's Court testimony as suspicious. It was pointed out, and the Record does reflect, that PW1 had been apprehended on account of being reluctant to testify and that on the day he testified he was brought to Court straight from jail. The trial Judge did not address this issue but we would agree with the Respondent's submissions in this regard. PW1 cannot be classified as a witness with an interest of his own to serve because he was neither a suspect nor co-accused in this matter and we therefore find that there was no danger of PW1 falsely implicating the Appellant merely on the basis that he had been incarcerated for non-attendance as a witness. J 13 of 15 The trial Court found as a fact that the deceased was brutally murdered on the night of 27th November, 2015. The instruments used to inflict the injuries on the deceased namely an iron bar, a stick and a shovel, were recovered from the scene. The head injuries described in the Postmortem Report, of fractured temporal bone, fracture of frontal bone and multiple bruises on the face, were consistent with a person who was savagely assaulted. The Court also found that the Appellant was apprehended and handed over to the Police the following morning on 28th November after he told PW1 that he had killed his uncle because he had accused him of being a thief. The trial Judge considered the danger of the possibility of PW1 falsely implicating the Appellant and this is what she said; "I have considered the possibility of the accused person being falsely implicated by PW1 and I am satisfied that it was not the case. The report made by the accused's young brother to PW1 during the night of 27th November, 2015, his immediate confirmation of the murder and the notification of the police were done so contemporaneously to the attack that there was no opportunity for PW1 to fabricate the story and falsely implicate the person." Coupled with this, the trial Judge threw out the Appellant's defence that he was already in custody when the deceased was murdered. She accepted the evidence of PW1 that the Appellant was apprehended the morning after the murder and handed over to the police. This was corroborated by PW3 who stated that the Appellant was handed over to the Police by members of the public. J 14 of 15 We have considered the arguments and vigorous efforts deployed by Counsel for the Appellant under this ground in an effort to discredit PW1's evidence. We find that the trial Judge properly evaluated the evidence before her and this ground consequently fails. Grounds 1 and 2 having failed, the conviction for murder is consequently upheld. We have considered Ground three, under which it was submitted that the Court should not have imposed the death penalty because the Record showed evidence of provocation which was an extenuating circumstance. The trial Judge considered this issue at length. She acknowledged that a failed defence of provocation was indeed an extenuating circumstance which would entitle an accused person to an exemption from the death penalty but found that, on the facts of this case, there was no failed defence of provocation. The Appellant did not raise the defence of provocation, he said he was in in Police custody when the deceased was murdered. The trial Judge did however consider a possible defence of provocation on account of the evidence of PW 1 which she had admitted into evidence and upon which the conviction was founded. She outlined the relevant law and stated that the cases she had cited "all establish that provocation in law consists mainly of three inseparable elements, namely the act of provocation, the loss of self-control both actual and reasonable, I .4 J 15 of 15 and the retaliation proportionate to the provocation. All three elements must be present before the defence is available". She found that the argument between the Appellant and the Deceased was trivial and the available evidence did not suggest the elements necessary to summon the defence of provocation. We agree with the trial Judge that the Appellant savagely murdered the deceased and that there was no failed defence of provocation for the Appellant to lean on. We find that the Appellant's conviction of Murder with no extenuating circumstances was sound. This Appeal is consequently dismissed F. M. CHISANGA JUDGE-PRESIDENT M. M. KONDOLO Sc (cid:9) COURT OF APPEAL JUDGE 7LP L.4 B. M. MAJULA COURT OF APPEAL JUDGE (cid:9) (cid:9)