Steven Chinyama v the People (APPEAL No. 98/2018) (4 March 2021) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA APPEAL No. 98/2018 HOLDEN AT NDOLA (C riminal Jurisdiction) BETWEEN: STEVEN CHINYA MA APPELLANT AND THE PEOPLE RESPONDENT Coram: Muyovwe, Hamaundu and Chinyama, JJS. On 2nd June, 2020 and on 4th March, 2021. For the Appellant: Mrs M. K. Liswaniso, Legal Aid Counsel, Legal Aid Board. For the Respondent: Mrs M. Chipanta-Mwansa, Deputy Chief State Advocate, National Prosecutions Authority. JUDGMENT Chinyama, JS, delivered the Judgment of the Court. Cases refe rred to: 1. David Zulu v The People (1977) ZR 151 2. Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People (1988 - 1989) ZR 163 . 3. Elias Kunda v The People (1980) ZR 100 4. Bwanausi v The People (1976) ZR 103 5. Liswaniso v The People (1976) ZR 272 6. Felix Silungwe and Shadreck Banda v The People (1981) ZR 286 7. Ilunga Kabala and John Masefu v The People (1981) ZR 102 8. George Nswana v The People (1980) ZR 100. ' 9. Patrick Kunda and Robertson Muleba Chisenga v The People (1980) ZR 105 10. Banda (K) v The People (1977) ZR 169 1.0 Introduction 1.1 In this matter, we sat with Lady Justice E. N. C. Muyovwe who regrettably, recently_ passed on. The decision 1s, therefore, that of the majority. 1.2 The appellant was convicted in the High Court at Solwezi, Kamwendo J, presiding, of one count of murder contrary to section 200 of the Penal Code and one count of aggravated robbery contrary to section 294(1) of the Penal Code. 1.3 The particulars of offence in the murder count alleged that the appellant, on an unknown date but between 10th January, 2016 and 11th January, 2016 at Solwezi, jointly and whilst acting together with other persons not known, murdered Nathan Kakumbi (hereafter the deceased). 1.4 The particulars of offence in the aggravated robbery count alleged that the appellant, between the stated dates, at Solwezi, jointly and whilst acting together with other persons unknown and whilst armed with a shifting J2 .. spanner and an axe stole a motor vehicle, namely a Toyota corolla motor vehicle registration number ACP 3740, a motor vehicle battery and a speaker altogether valued at K21,000, the property of Allan Mungeleshi and used violence in order to steal the said motor vehicle. 1.5 The appellant was sentenced to death on the murder count and 35 years imprisonment with hard labour on the aggravated robbery count. The appeal 1s against conviction. 2.0 The case for the State in the High Court 2.1 The evidence on which the appellant was convicted was that the deceased was employed as a Taxi driver by Allan Mungeleshi (PW2). Both were residents within Solwezi. The deceased used to drive PW2 's taxi car, a Toyota Sprinter (not a Toyota corona as stated in the particulars of offence), registration number ACP 3740. The deceased and the car went missing on 10th January, 2016. 2.2 The car was found the next day hidden in the bush at Maheba Refugee Camp, in an area called Road 34, about J3 ,. 200 metres from the house of Shadreck Chinyama, brother to the appellant. There was blood splattered in the car and also in the boot of the car. 2.3 The deceased's body was found hanging from a tree with a fibre around the neck the following day in an area called Road 32 within Maheba Refugee Camp. There were cuts on the head as well as bruises on the arms and the stomach. Police were informed and PW7, Constable Evans Chipepo, who was the arresting officer and other police officers went to where the vehicle and the body were. The vehicle was towed to the Refugee camp offices and the body was taken to Solwezi General Hospital Mortuary. 2.4 Evidence was given by PW4, Obert Kalwijhi, a liquor shop operator at Lumwana, at the time within Solwezi district, that on 10th January, 2016 the appellant, whom he knew as a brick moulder and had last seen in 2012 had visited him. [Both Lumwana and Maheba are now part of Kalumbila district hived off from Solwezi and created in 2018 by Presidential decree.] During the interaction, the appellant told PW4 that he had a corolla car which was at J4 his parent's home at Maheba and wanted customers. The appellant then went away. He returned after one day drenched by rain. He asked the witness for money to buy fuel which had run out in the car. The witness bought 2.5 litres of petrol worth K30 for the appellant who left. 2.5 Further evidence from PW4 was that the next day, he was informed by the officer in charge at Maheba police station of a missing taxi driver and a motor vehicle in relation to which he was requested to provide information if he came across any. 2.6 Evidence of the appellant's apprehension was given by PWS, Erick Ukwetambo, who testified that he was at work at Maheba Refugee Camp when he heard shouts of "criminal", "criminal" from a large group of people. Someone told him that it w_as the person that had killed a taxi driver. Being a Community Crime Prevention Unit (CCPU) member, he intervened and "rescued the suspect", who turned out to be the appellant, from the instant justice mob that was assaulting and threatening to kill JS him. He had him taken to the Police station. PW7 confirmed PWS handing over the appellant to the Police. 2.7 Following the appellant's apprehension, PW4 was requested to go to Maheba Police station. He went there and was shown a photograph of the appellant whom he recognised. He was taken to the cell where he saw the appellant and identified him to the police. He asked the appellant in the presence of a Police officer about the whereabouts of the vehicle that he had requested the witness to help him to sell. The appellant replied that he had not found it where he had left it. The Police officer asked the appellant where he had left the vehicle. The appellant told the officer that he would explain. 2.8 The appellant was removed from the cell and led PW7, another Police officer and PW4 to a place where, according to PW4, the appellant said he had attacked the deceased, hitting him with a shifting spanner, in the process shattering the window on the driver's side. The appellant told them that he then put the deceased in the boot of the car. PW4 saw broken pieces of tinted glass by the roadside. JG The appellant also told the party that he threw the spanner in the nearby field. They searched tlie area and found it. PW4 stated that the appellant told them that he had dragged the deceased to the tree where he was found after incapacitating him. The witness stated that he saw the drag marks that left the grass fallen. The appellant also showed them where he had hidden the car in the bush behind his brother's house. 2.9 The appellant was asked about the battery and he said he had sold it in Kanyange area. They went to Kanyange where they found the battery with PW6, Charles Kabwita, who handed it over to the police. The team returned to the Police station and PW4 left them there. In cross examination, the witness stated that the appellant led the Police but denied that they were beating him during the leading. The witness stated that the appellant told him that he killed the deceased because he wanted the vehicle. 2.10 PW6 did confirm, in his testimony, that he bought the Exide battery produced in court from the appellant on 13th January 2016 in Kanyange area. He denied having J7 , knowledge that the appellant bought it from a shop called Perfect Auto Spares in Solwezi. 2.11 PW7 testified that he cautioned the appellant in relation to the motor vehicle and the deceased person, as we understood the witness. He then started recounting, in the manner narrated by PW4, how the appellant led him to the scenes of the crimes to which Counsel for the appellant objected on the ground that it amounted to soliciting an admission that the appellant had killed the deceased. According to Counsel, her instructions were that the appellant never admitted to murdering the deceased, that it was police that took him to the place that they claimed he led them to while beating him and forcing him to admit to the offence. In apparent concession to the objection, the learned State Advocate undertook to guide the witness to adduce evidence which did not involve evidence of the appellant's admission to the crimes. The Court appeared to have agreed with the parties. 2.12 As it turned out, however, PW7 ended up recounting how the appellant led police to the various places where he told JS , them he committed the alleged cnmes. There was no objection raised against this evidence by the appellant or his advocate. This evidence was more or less the same as told by PW4 except to add that, according to PW7, the broken pieces of tinted glass by the roadside resembled those from the driver's side window in the recovered car and that when they went to Shadreck's house an axe was recovered. Shadreck, who was not at home at the time, later took a speaker to the police. PW7 believed that the speaker had been removed from the car because of the cables on it which were identical to those in the car which indicated how they were supposed to connect. 2 .13 In cross-examination, PW7 stated that when the appellant led them to the places where the motor vehicle and the deceased's body were found, he had already been there. He denied beating the appellant during the proceeding. In re-examination, however, the witness stated that he had not been to the places where the shattered pieces of (tinted) glass, the shifting spanner and the battery were found before the appellant led them there. J9 2.14 PW2, who had reported the matter of his missing car and the deceased, was informed by police at Solwezi that the vehicle had been found. He went with some police officers to Maheba Refugee Camp where he found his car at the Police station. He checked the car ahd found that the battery and a speaker he had put at the back of the car were missing. Later, he was shown the items and he identified both the battery and the speaker as his. He also saw the body of the deceased. 2.15 A post-mortem examination conducted on the body of the deceased at Solwezi General Hospital established that he died from severe head injury. 3.0 The defence 3.1 In his defence the appellant testified that he was a businessman who deal~ in selling fuel. He stated that on 10th and 11th January, 2016 he was selling fuel in Kyasumunu area in Solwezi. He denied having any knowledge about the murder of the deceased. He stated that he went to see PW4 be_cause he wanted to buy diesel JlO but denied telling PW4 that he had a car that he was selling. He also denied confessing to PW4 that he killed the deceased in order to get the vehicle. He admitted selling the battery to PW6 but stated that he had bought it from Perfect Auto Spares shop in Solwezi. He denied leading the police and PW4 to the various places mentioned. He, however, confirmed going to his brother's house where the speaker was found but contended that it was a common speaker which belonged to his brother. 4.0 The High Court Judgment 4.1 The learned trial judge accepted the evidence of the prosecution after considering the evidence of PW4 and that of PW6 who bought the battery as well as the evidence of leading to the scenes of the crimes. He rejected the appellant's defence as a mere fabrication. He convicted the appellant as it were. 5.0 The appeal to this Court Jll 5.1 The appeal is on three grounds as follows1. The learned trial judge misdirected himself both in law and fact when he convicted the appellant oh both counts based purely on circumstantial evidence. 2. The learned trial judge misdirected himself both in law and fact to place reliance on leading evidence when the same was not voluntary. 3. The learned trial judge misdirected himself both in law and fact when he concluded that the battery sold by the appellant had been removed from the exhibit motor vehicle by the appellant. 6.0 Arguments and submissions for the appellant 6.1 Mrs Liswaniso submitted, in arguing ground one, that the evidence against the appellant was circumstantial. She raised several issues under this ground. 6.1.1 The first related to the discrepancy 1n the description of the stolen motor vehicle between the particulars of offence where it was described as a Toyota Corolla and the evidence of the prosecution J12 witnesses including the owner of the vehicle, PW2, who described the vehicle as a Toyota Sprinter. At the hearing of the appeal, however, Mrs Liswaniso conceded that the vehicle was a Toyota Sprinter, as we understood her. There can be no doubt that the vehicle at issue was a Toyota Sprinter in view of the overwhelming evidence given by the witnesses for the prosecution in addition to the fact that the registration number for the vehicle provided in the information was the same as the one given by the witnesses. We are satisfied that the vehicle described in the information and the vehicle talked about by the prosecution witnesses was one and the same and that, on the evidence, the appellant could not have been misled or prejudiced. We commend Mrs Liswaniso for capitulating. 6.1.2 The second issue raised under ground one related to the contention that the appellant was apprehended in unclear circumstances. According to the argument, it was not clear why PW4 was called J13 to identify the appellant at the police station where the witness was shown the appellant's photograph beforehand. It was also unclear why the appellant was apprehended. 6.1.3 The third issue raised under the first ground which was, however, considered under the arguments pertaining to the second ground of appeal, relates to the evidence by PW7 that the appellant led police to the scenes of the crimes. It appears to be Mrs Liswaniso's position that this evidence should be expunged because it was not given voluntarily and is, therefore, inadmissible. That once the evidence of the purported leading is removed what remains is circumstantial evidence, which, as we understand the argument, is not cogent enough to justify a conviction based on the authority of the case of David Zulu v The People 1 • 6.2 In the second ground of app_eal, the argument, as indicated in the preceding paragraph, is that the Court below should not have relied on the evidence of leading because it was J14 not voluntary. Further, that the police had already been to the scenes of the crimes. Reliance was placed on the case of Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People2 It was also pointed out . that there was dereliction on the part of the police in not lifting finger prints from the shifting spanner. 6.3 With regard to the third ground of appeal, Mrs Liswaniso's contention was that the battery and the speaker were not sufficiently proved as belonging to PW2 's car. Learned counsel contended that the. appellant's explanation that he bought the battery from an auto spares shop in Solwezi and that the speaker was a common type and that it belonged to his brother, Shadreck had not been displaced. The cases of Elias Kunda v The People3 and Bwanausi v The People4 were cited in support. 7.0 Arguments and submissions for the respondent 7 .1 Reacting to the issues raised in the first ground of appeal, it was agreed by the learned Deputy Chief State Advocate that the evidence relied on by the prosecution was JlS circumstantial. It was, however, submitted that the circumstantial evidence had taken the case out of the realm of conjecture and attained such cogency which only permitted an inference of guilt of the appellant. 7.2 Mrs Chipanta-Mwansa did respond to the first issue raised in ground one pertaining tb the misdescription of the car. However, in view of the concession by Mrs Liswaniso and the matter having been resolved on the understanding that the misdescription did not mislead or prejudice the appellant, it is unnecessary for us to consider the response. 7.3 With regard to the argument that it was not clear why PW4 was called to identify the appellant or why the appellant was apprehended, the response was to the effect that PW4 was invited to identify the appellant by the police to confirm the identity of the person that had visited him and had interacted with him earlier on. Further, that the appellant was apprehended by the mob on suspicion that he had killed a taxi driver and PWS took him to the police J16 station on that basis. Therefore, that the argument that there was no basis for his apprehension was unfounded. 7.4 The third issue raised in the second ground of appeal was argued under ground two as we have already stated. In that regard, the response was that the trial judge did not misdirect himself by relying on the evidence of leading as the appellant took the police to places where they had not been and fresh evidence was found. 7 .5 Mrs Chipanta-Mwansa contended that the appellant led police to the place where he killed the deceased, to the place where broken glass was found and to the field where the shifting spanner was recovered as well as to PW6 from whom the battery was recovered. That PW2 identified the battery and the speaker and demonstrated how they fitted in the car. It was submitted that if the evidence of leading is held to be inadmissible, the evidence gathered through the impugned leading is relevant and admissible on the authority of the case of Liswaniso v The People5 in which it was held thatJ17 Apart from the rule of law relating to the admissibility of involuntary confessions, evidence illegally obtained, e.g. 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). It was, accordingly, submitted that the shattered pieces of glass, the shifting spanner, the battery and the speaker were admissible pieces of evidence that implicated the appellant in the crimes, as we understood the argument. As for the State's alleged failure to lift fingerprints from the shifting spanner, it was submitted to the effect that this was not necessary because, on the authority of the case of Felix Silungwe and Shadreck Banda v The People6 , there can be no doubt that the appellant had been in possession of the shifting spanner since no one knew about it until he led police to its recovery. It was submitted that ground two should fail. 7.6 Regarding the third and last ground, the contention was that the trial judge did not misdirect himself when he concluded that the battery (and the speaker) at issue had been removed from the car. J18 7. 7 It was submitted that it was odd that the vehicle was recovered without a battery and a speaker and the appellant led police to recover the two items and they were both identified by PW2 as belonging to the car. 7 .8 Further, that it was odd that the vehicle had a broken tinted window and the appellant led police to the place where broken pieces of tinted glass similar to the window were found. 7.9 It was submitted that the inference that can be drawn from the odd coincidences is that the battery and the speaker were removed from the car by the appellant. The case of Ilunga Kabala and John Masefu v The People7 was cited in aid. 7 .10 It was further submitted that the fact that the battery and the speaker were in the appellant's possession so soon after the deceased was found dead and the vehicle hidden in the bush with the two items missing justifies the invocation of the doctrine of recent possession because the time was too short for the items to have changed hands. Reliance was placed on the case of George N swana v The J19 People8 It was submitted, therefore, that the appellant . had not given reasonable explanatiohs for his possession of the battery and the speaker. The prayer was that this ground falls as well. 8.0 Consideration of the appeal and this Court's decision 8.1 We have considered the appeal. In our view, the issues raised are inter-related. As such, we will consider them at once. 8.2 It appears to us that besides the evidence of leading given by PW7, which the appellant has challenged in the appeal, there is evidence from an independent witness, PW4, which confirmed all that which PW7 told the trial Court. From the record of proceedings in the Court below, PW4 was never challenged on his assertions and the question whether the appellant's actions were voluntary was not raised. In our considered view, therefore, there is nothing would render PW4's testimony to be inadmissible. According to the witness, the appellant was not beaten during his leading of the police and he confessed to the J20 witness that he killed the deceased because he wanted to get the vehicle. This evidence clearly implicated the appellant in the two crimes. Going by that evidence, which we find no reason to disbelieve, the appellant led the police in the company of PW4 to the place where he attacked and killed the deceased whom he hit with a shifting spanner and broke the driver's side window in the process. This explained the pieces of shattered glass similar to the broken side window glass on the car. 8.3 It is indeed true that the shattered pieces of glass were discovered only when the appellant led the police to the place. Similarly, the police were able to look for and find the shifting spanner because the appellant told them about it and led them to the field where he had thrown or hidden it after assaulting the deceased with it. 8.4 The blood splattered in the car obviously was caused by the appellant's attack on the deceased and according to the appellant's confession, he put the deceased in the boot of the car after incapacitating him, thereby accounting for the blood found there. J21 .. , 8.5 It, having been settled that the appellant hit the deceased with the shifting spanner, there was ho need for the Police to lift fingerprints assuming that it was possible to do so. Given the facts of the case, there was no dereliction of duty on the part of the police. In the case of Banda (K) v The People10, it was said by this Court that where there is a dereliction of duty by the Police in failing to test for fingerprints, there 1s a presumption, which can be displaced, that the accused did not handle the article in question. This presumption is, however, not tenable where it is not in dispute that the accused handled the article. In the case of Felix Silungwe and Shadreck Banda v The People6 cited by Mrs Chipanta-Mwansa, it was held that- , Where the circumstances are such that there is no doubt that a defendant has been in possession of the vehicle or of an article, the failure to take fingerprints from the vehicle or from the article could not be a dereliction of duty and the absence of finger prints cannot raise the presumption that the defendant's fingerprints could not have been on the vehicl~ or on the article. J22 .. 8.6 Regarding the identity of the battery and the speaker, we agree that it was odd that the appellant sold a battery to PW6 and a speaker was recovered from his brother's house at a time when two such items were found to have been removed from the car. What is more telling, however, is that the appellant led police to PW6 and to the house of his brother, Shadreck as a result of the police inquiry as to what became of the battery and the speaker that were missing from the recovered car. We, therefore, have no doubt that when PW2 identified the items as the ones that had been in the car, it was because they were really the ones that had been removed from the car. And to remove whatever doubt remained on the identity of, particularly, the speaker, PW7 testified that he was satisfied that the speaker belonged to the car because there were cables on the speaker that matched the cables in the car and they connected. This was relevant evidence which was not displaced. In the circumstances, we find the appellant's explanation that he bought the battery from an auto J23 • spares shop and that the speaker was a common item which belonged to his brother to be untrue. 8. 7 In our considered view, the eviderlce of PW4 and the factual evidence of the things discovered during the exercise, that is to say the broken window glass, the shifting spanner, the speaker and the battery roundly confirmed the appellant's guilty knowledge and implicated the appellant in the two crimes. Borrowing from what this Court said in the case of Patrick Kunda and Robertson Muleba Chisenga v The People9 the evidence discovered , at the places to which the appellant led the Police was "real evidence in the sense that it was physical evidence which would not be before the court had it not been discovered as a result of the appellant's pointing it out to the Police". 8.8 On the question raised regarding the circumstances of the appellant's apprehension, ·we are satisfied that on the totality of the evidence, there can be no doubt that PW4 was called to identify the appellant in the context of the police investigation regarding the Toyota Sprinter J24 recovered in the bush in Maheba Refugee Camp and the murder of the deceased for which he was arrested. It is also clear that he was apprehended by the mob from whom he was "rescued" by PWS in relation to the same. 8.9 In the result, we find no merit in any of the three grounds of appeal. We dismiss the entire appeal and uphold the convictions. ~ ~ ....." iM:·uA~ U1 .~ SUPREME COURT JUDGE J. CHI "· AMA SUPREME COURT JUDGE J25