Rabson Chisenga v the People (APPEAL No.249/2017) (5 June 2019) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA APPEAL No.249/2017 HOLDEN AT LUSAKA ' ( Criminal Jurisdiction) UBLIC OF BETWEEN: E COURT JUD/Ci ARY RABSON CHISENGA ... . . PELLANT - •~ :l ~• . • • • -I :_. ·1 AND OURT HE 50067, LU THE PEOPLE RESPONDENT Coram: Phiri, Muyovwe and Chinyama, JJS. On 7th May, 2019 and on 5th June, 2019. For the Appellant: Mrs M. K. Liswaniso, Legal Aid Counsel, Legal Aid Board. For the Respondents: Mr F. M. Sikazwe, Senior State Advocate, National Prosecutions Authority. JUDGMENT Chinyama, JS, delivered the Judgment of the Court. · Cases referred to: 1. Lazarous Kantukomwe v The People (1981) Z.R. 125. 2. Sydney Zonde, Aaron Sakala, Edward Chikumbi v The People (1980) Z.R. 337. 3. George Nswana v The People (1988 - 1989) Z.R. 174. 4. Ali and.Another v The People (1973) ZR 232. 5. Githuku v Republic (2012) 2 EALR 152. 6. Stephen Manda v The People (1980) ZR 116. 7. Chabala v The People (1976) Z.R. 14. 8. Machobane v The People (1972) Z.R. 101. Statutes referred to: l. Penal Code, Chapter 87, Laws of Zambia, sections 294(1), 318. The appellant was jointly charged with two others named Jacob Zulu and Thomas Nyoni, with the offence of Aggravated Robbery contrary to section 294(1) of the Penal Code. They were all convicted and sentenced to 15 years terms of imprisonment with hard labour. The appellant is the only one who has appealed and the appeal is against conviction. Facts which are not in dispute are that on the night of 8th January, 2015, PWl (Rachel Marie Mathews) and her husband, PW2 (Sean Mikail Seymeur-David) were asleep in the house of their friend PW3 (Robert Stacey) located in Lusaka's Chudleigh area. PW3 had requested the couple whose usual residence was in Makeni, also in Lusaka, to house-sit for him while he was away visiting abroad. Around 02:00 hours, PWl and PW2 woke up to violent beatings at the hands of four bandits who had broken into the house. From the electricity lighting in the bedroom PWl was able to see the faces · of two of the assailants whom she later identified at a police identification parade as J acob Zulu and Thomas Nyoni. She did not see the other two bandits clearly. PW2 who had concussed from the beatings was not able to identify any of the assailants. The two witnesses were, however, explicit that they were attacked with knives and metal bars. Several items J2 belonging to the couple including PW3's back-pack bag were stolen. The trail of police investigations and the good will of members of the public led to the apprehension of Jacob Zulu who in turn led police to the apprehension of Thomas Nyoni and the appellant. The appellant led police to his home where the blue/ grey back pack belonging to PW3 was recovered. PW13 (Detective Inspector Shadreck J ere) who was the arresting officer, identified the appellant in Court, besides Jacob Zulu and Thomas Nyoni, as the person whom he arrested and charged for the offence of Aggravated Robbery. The appellant's defence was that he bought the back pack at Kl00 from J acob Zulu who passed by his stand near the National Assembly around the end of January, 2015. That is when he came to know J acob Zulu. He was not given a receipt for the purchase. The appellant also resp.anded to a question in cross examination that he could not recall where he was on the day and time of the robbery but insisted that _he knew nothing about it. J3 The learned trial judge rejected the appellant's defence based on the doctrine of recent possession and justified her decision by holding thatIn the present case, the evidence of PW13 was that Al led them to A2 and A3 ... After A3's apprehension he led the police officers to his home where the blue/grey back pack was recovered. This was the same blue/grey back pack that had been stolen on the night of the attack. When asked to explain his possession of the stolen item, A3 simply stated that he had bought the item from Al. A3's testimony was such that the court was unable to believe the veracity of his evidence a_s he kept evading the questions put to him. He also admitted that he had not told his lawyer about the stolen bag that was found in his possession. I found A3 very hesitant and inconsistent in his evidence. He also denied being friends with Al and he also denied giving a statement to the Police. Further, A3 was also not able to account for his whereabouts on the night of the attack, he was also not able to offer reasonable explanation of why he was found in possession of stolen property. From all the evidence before me, I am satisfied that Al, A2 and A3 have been correctly identified as being involved in the robbery on the day in question. She found the appellant guilty and convicted him. The appeal is on two grounds1. That the trial Court erred in law and fact when she rejected the reasonable explanation offered by the appellant as to how he was in possession of the stolen property. 2. That the learned judge misdirected herself when she held that she was satisfied that the appellant had been correctly J4 The learned trial judge rejected the appellant's defence based on the doctrine of recent possession and justified her decision by holding thatIn the present case, the evidence of PW13 was that Al led them to A2 and A3 ... After A3's apprehension he led the police officers to his home where the blue/ grey back pack was recovered. This was the same blue/grey back pack that had been stolen on the night of the attack. When asked to explain his possession of the stolen item, A3 simply stated that he had bought the item from Al. A3's testimony was such that the court was unable to believe the veracity of his evidence as he kept evading the questions put to him. He also admitted that he had not told his lawyer about the stolen bag that was found in his po~session. I found A3 very hesitant and inconsistent in his evidence. He also denied being friends with Al and he also denied giving a statement to the Police. Further, A3 was also not able to account for his whereabouts on the night of the attack, he was also not able to offer reasonable explanation of why he was found in possession of stolen property. From all the evidence before me, I am satisfied that Al, A2 and A3 have been correctly identified as being involved in the robbery on the day in question. She found the appellant guilty and convicted him. The appeal is on two grounds1. That the trial Court erred in law and fact when she rejected the reasonable explanation offered by the appellant as to how he was in possession of the stolen property. 2. That the learned judge misdirected herself when she held that she was satisfied that the appellant had been correctly J4 identified as being involved in the robbery on the day in question. Mrs Liswaniso's .submissions in support of the 1st ground of appeal centred on the argument that there was no evidence adduced to establish that the appellant took part in the robbery and that his explanation of how he came into possession of the bag was reasonable. It was submitted that the appellant's explanation that he bought PW3 's back pack from Jacob Zulu was not contradicted by any other explanation. The case of Lazarous Kantukomwe v The People1 was cited in which the duty of the court to consider whether there was another explanation for the appellant being in possession of the stolen property is highlighted. It was further submitted that the circumstances in this case are such that a reasonable period of time had expired between the day of the robbery and the finding of the bag in the appellant's possession such that it was possible for the bag to have changed hands. The cas-e of Sydney Zonde, Aaron Sakata, Edward Chikumbi v The People2 was cited for the holding thatThe doctrine of recent possession applies to a person in the absence of any explanation that might be true when found in possession of the complainant's property barely a few hours after JS the com lainant had suffered an a ravated robbe . (Emphasis supplied) It was pointed out that the appellant was found with the bag after almost a month from the date of the robbery. It was contended that the non-production of a receipt (which the appellant was questioned about) does not suggest that the appellant was one of the robbers as there were other witnesses who bou ght some of the stolen property but they did not produce any receipts. To drive the point home the case of George Nswana v The People3 regar~ing the ci:rcumstances when inferences of guilt in cases where recently stolen property is found in the possession of the accused can be drawn. Coming to.the 2nd gro_und the submission attacked that part : of the learned trial judge's judgment where she saidFrom all the evidence before me, I am satisfied that Al, A2 and A3 have been correctly identified on the day in question. It was submitted to the effect that there was no evidence on record proving that the appellant was identified at any time at all and that the finding of the bag in his possession does not lead to the inevitable conclusion that the appellant took part in the robbery. In apparent reference to the appellant's court-room identification JG by PW13, it was submitted that such had little or no value. Two cases of Ali and Another v The People4 and the Kenyan case of Githuku v Republic5 were cited on the point. Based on the foregoing submissions we were urged to allow the appeal and acquit the appellant of the offence for which he was convicted. Responding to the submissions in support of the appeal, Mr Sikazwe submitted, in respect of ground one that the Court below was on firm ground when it rejected the appellant's explanation because it had the opportunity to observe the appellant's demeanour and made the observations alluded to earlier in this judgment. Mr Sikazwe found it odd that the appellant's lawyer, in the Court below, never challenged the arresting officer over the story that the appellant bought the bag from J acob Zulu. He argued that this fortified the trial Cou rt's reasons for rejecting the explanation on the bctsis that it w_as not reasonable. Counsel asserted that the fact that the appellant was found with the bag ~ meant that he fell in the category of accomplices as found by the trial judge based on the decision in the case of Stephen Manda v The People6 The cases of Zonde and Nswana were also referred . to for the holdings already cited. J7 It was submitted to the effect that the appellan t's explanation was not reasonable and that only an inference of guilt could be drawn that the appellant acted together with Zulu and Nyoni in committing t1:1e crime. Turning to the second ground of appeal, the substance of the contending submission was that the learned trial judge concluded that the appellant was correctly identified as being involved in the robbery after evaluating the evidence of recent possession; again that the appellant was an accomplice for being in possessior. of stolen property and the Court also evaluated his demeanor and found it difficult to accept his story. It was argued in the alternative that if we be inclined to allow the appeal, we should then find the appellant guilty of the lesser offence of receiving stolen property under section 318 of the Penal Code. Mrs Liswaniso did not respond to this last part of the submission. This concluded the salient parts of the parties' submissions. We have considered the appeal as well as the arguments in support and against iC The issue for decision in the first ground of appeal is whether the learned trial judge erred when she rejected J8 the explanation given by the appellant to account for · his possess10n of PW3's back-pack some three weeks or so from the time that it was stolen from his home on the 8th January, 2'015. Both advocates have ably demonstrated by way of the cases cited the circumstances when the law will infer that the person found in possession of stolen property is either an accomplice or the thief thereof. The authorities in this area are indeed replete. The law as· submitted 1s that an accused person found in possession of recently stolen property may be taken to be the thief if he gives no explanation to account for his possession of the property. In the case of Chabala v The People7 it was stated by this Court thatAnd if a person i~. in possession of property recently stolen and gives no explanation, the proper inference from all the circumstance·s of the case may be that he was the thief, or broke in to steal and stole, or was a receiver ... The onu s is, therefore, on the accused to give an explanation of how he came by the stolen property. The onus is discharged if the explanation given is found to be reasonably true. In the same Chabala case it was also held thatJ9 And if explanation is given, because guilt is a matter of inference, there cannot be conviction if the explanation might reasonably be true, for then 'guilt is not the only reasonable inference. Therefore, where an accused gives an explanation, it 1s the duty of the court to consider whether the explanation offered might reasonably be true. The court will take into account the totality of the evidence available to see whether the explanation given by the accused is displaced and supports the inference of guilt and that it is ·the only inference that can be drawn on the facts. Otherwise . . . the explanation must be accepted even if it is not necessarily true. . . In this case, the evidence how the appellant got connected to the robbery came from PW13 (the arresting officer) who said in his evidence: The following morning, he (Jacob Zulu) led us to a gentleman I came to know as Rabson Chisenga. Upon interviewing Rabson, he led us to his house where we recovered a blue grey back pack which was also stolen from the scene. And in his own defence the appellant stated that when he was ! asked if he knew aco b Zulu who was with the police when they went to see him, he told them that he bought the back pack from him. He also said that the police never told him about the robbery. As we have already noted, the court below made an assessment of the veracity of the appellant's defence based on his JlO demeanour alleging that the appellant kept on evading questions put to him and he was inconsistent. The Court did not state the questions which the appellant evaded. Neither was the inconsistency derponstrated. It is not enough for a presiding Judge or Magistrate to simply say "I do not believe the accused based on his/ her demeanour" without stating the evidence on which the assessment is based. In Machobane v The People8 this Court said- "But demeanour is as much an item of evidence as anything else observed by the court from which inferences or conclusions are drawn ..· ·. All evidence, whether hea,rd or seen, must appear either in the body of the record or at least in the judgment. Thus if the height oi- weight of a witness might be material the court will record the relevaµ,t particulars; if the court makes observations at an inspection at· the locus in quo it will record the matters observed. Equally, if the court observes a witness to be hesitant, or uncomfortable ~hen asked certain questions, or unwilling to look the court or counsel in the eye, these are items of evidence which must be recorded if conclusions are to be drawn from them." We ·did peruse the record of appeal and did not find any evidence 1n it supporting the learned judge's observation that the appellant's defence lacked veracity. The learned trial judge deemed it an issue that the appellant did not tell his lawyer "about the stolen bag that was found in his possession" while Mi- Sikazwe found it odd that the appellant's lawyer in the Court below did not challenge PW 13 over the Jll appellant's explanation. We have read the record of the evidence given by the appellant in the Court below, particularly the questions and answers during his cross examination. The relevant portion where the learned judge's observation came from reads as follows: Q. What woul~ make police implicate you? A. Because they requested that I give him money and I didn't have. Q. Did you tell this to your lawyer? A. I' told him I bought the bag. Q. Did you inform your lawyer? A. I never. Q. But this is important information. If police requested for money from you - you should have told. A. Yes. It is clear from this exchange that the issue under discussion related to the appella.i.1.t'-s allegation that police had told him to give them money so· that he should not be implicated. Clearly, the learned judge took the appellant's reply that he did not tell his lawyer out of context. The way we understand the appellant's answer, and it is very plain in the text we have recited, is that his answer was simply that he did not tell his lawyer that police had told them to give him money so that he should not be implicated. J12 As for Mr Sikazwe's suggestion that it was odd that the appellant's lawyer did not challenge PW13 over the appellant's explanation (of how he came by the back pack) we do not see the need for the challenge. So far as we are able to see from the evidence on record, it is not in dispute that the appellant told the police that he bought the back pack from J acob Zulu. The onus was on the prosecution to show that no such explanation was given. We notice, in any case, that in following up the question ·whether Thomas . Nyoni ·was Jacob Zulu's workmate which the witness answered· in t~e affirmative, he was also asked whether he was also a workmate ·to the appellant which the witness answered in the negative. · This, in our view, confirmed that the only relationship between the appellant and Jacob Zulu was the back pack which the former bought from the latter. The appellant was in fact emphatic about this even in his own defence. When asked whether he knew.Jacob Zulu before the back pack transaction, he replied that he did not. There was thus no obligation on the appellant's advocate to go beyond the question when it was already on record, in effect, that the only relationship between the appellant and Jacob Zulu was that of buyer and seller of the back pack. There is no other evidence that they knew each other J13 previously. And certainly, the issue of friendship which is one of the criteria taken into account by the learned trial judge in rejecting the appellant's defence does not, therefore, arise. There was, as we have sajd, no obligation on the appellant's advocate in the Court below to raise the challenge alluded to by Mr Sikazwe. The learned trial judge also took into account the fact that the appellant denied during cross examination that he had given a statement to the police that he and Jacob Zulu were close friends who drunk together. It is obvious that the learned judge thought the appellant lied about the statement. Again, we fajl to see how the appellant's denial could have been an issue. The statement which the appellant is alleged to have given to the police was never produced in Court an~ so the appellant's denial that he made a statement was never rebutted. Clearly, the trial judge misdirected herself in taking the matter into account. As to the appellant's alleged failure to account for his whereabouts on the date and time of the robbery, we again take the view that in the light of his defence, this cannot be held agajnst him. The majority of u·s hardly keep a diary of our daily activities to enable us recall details where we were or what we did on specific days and times unless the event was so significant that one cannot J14 fail to have a general recollection of what happened. In this case there is no evidence besides the back-pack to show that the appellant was part of the robbery. The appellant was found in possess10n of recently stolen property and he gave an explanation. Can the explanation be reasonably true given the circumstances of the case? Are there any suspicious features surrounding the case that indicate that the appellant cannot reasonably claim to have been in innocent possession of the back pack? Was he the thief or guilty receiver? Our response to these questions is that having examined the evidence on record we see nothing suspicious or indicating that the appellant was the thief or guilty receiver of the back pack. There is clearly no other explanation of how the appellant came by the back pack besides his explanation that he bought it from Jacob Zulu. We find the explanation to be reasonably true in the circumstances ap:d that the learned trial judge erred in rejecting it. There is merit in ground one of the appeal and we uphold it. Turning to the arguments in the second ground of appeal, we entirely agree that it was a complete misdirection on the part of the learned judge to assert that the appellant was also identified as a participant in the robbery. It is clear from the evidence on record JlS that the appellant cannot be said to have been identified in connection with the robbery. He was identified only by PW13 in th e court room, during the trial as one of the three people that h e arrested for the offence. As for the alternative prayer that we find the appellant guilty of the lesser offence of receiving stolen property u nder section 318 of the Penal Code, the State has not demonstrated that the appellant knew that the back-pack was a stolen item at the time that he bought it from J acob Zulu. In the case of Lazarous Kantukomwe earlier cited by Mrs Liswaniso it was further held that- (ii) In this particular ~ase it is quite possible that the appellant did not steal the motor vehicle, but it is quite clear that he was in possession of stolen property and should properly be convicted of receiving stolen property knowing it to have been stolen. (Emphasis su pplied) Knowledge by the appellant that the property was stolen at the time of buying is a necessary ingredient of the proposed offence. The appellant was in possession of recently stolen property quite alright. There is, however, no evidence that he knew that the back pack was stolen. J acob Zulu who knew why he led police to J16 • the appellant did not.' give evidence why he did that. There 1s, therefore, merit in the second ground of appeal as well. All in all, the two grounds of appeal have merit and we uphold the appeal and set aside the conviction and sentence. The appellant stands acquitted of the offence of Aggravated Robbery and he is set at liberty. .. . . . . . . . . . . . . . ·. . ......... .l\.: :~ .................... . ' I ' G.S. PHIRI SUPREME COURT JUDGE /:.-:~..- -------=- ..... E.N .C. MUYOVWE SUPREME COURT JUDGE ......................... ~.~. 0. .. :.: ..................... iJlJAMA J. SUPREME COURT JUDGE J17