Collin Roberts v the People (APPEAL NO. 48/2024) (17 June 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.48/2024 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: COLLIN ROBERTS APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Chernbe, JJA ON: 21st May 2025 and 17th June 2025 For the Appellant: K.C. Kaurnba, Likando Kalaluka & Co . For the Respondent: C. Kahilu, State Advocate , National Prosecutions Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: 1 . Nyirongo v . The People [1972] Z.R. 290 2 . OPP V. Risbey [1977] Z.R. 28 3 . Chrispin Mabvuto Banda and Another v . The Peopl e [2011 ] 2 Z.R. 194 4. George Musupi v . The People [1978 ] Z. R. 271 5 . Yokonia Mwale v . The People, SCZ Appeal No . 258 of 6 . Dorothy Mu tale and Another v . The People [ 19951997] Z.R. 227 J2 7. Victor Moses Sampa v . The People, CAZ Appeal No . 133 of 2020 8 . Sipalo Chibozu and Chibozu v . The People [1981) Z. R. 28 9. Musonda v . The People [1976] Z.R. 215 10 . Wilson Chimoto v . The People [1980) Z. R. 20 11 . The People v. Njovu [1968) Z.R. 132 Legislation referred to : 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 3. The Court of Appeal Act, No . 7 of 2016 1. 0 INTRODUCTION 1.1 The appellant appeared before the Subordinate Court (Hon. Mikalile, as she t hen was) , charged with the offence of assault occasionally actual bodily harm, contrary to Section 248 of the Penal Code . 1.2 He denied t he charge and the matter proceeded to trial . At the end of the trial, he was convicted and sentenced to 18 months impri sonment , with hard l abour . 1.3 He appeal ed both t he convict ion and sentence to the High Court, but was unsuccessful . 1 . 4 He has now appealed to this court against both the J3 conviction and the sent ence i mposed on him by the trial Magistrate . 2.0 CASE BEFORE THE SUBORDINATE COURT 2 . 1 On 27Lh November 2018 , Faith Mwamba, the appellant' s estranged girlfriend, reported to Woodlands Pol ice Station on being summoned by the police . She was summoned following a complaint by the appellant, that he had lost some proper ty from hi s house . 2.2 Police officers sat the appell ant and Faith Mwamba, together with their witnesses, in an office . 2.3 After hearing both sides, the police officers concluded that the appellant' s complaint was civil in nature . He was advised to sue his estranged girlfriend and the meeting was then dismissed. 2 . 4 The appellant was not pl eased . 2 .5 As his estranged girlfriend was about to leave the office, the appellant stood in her way and got hold of her . He called out that she was a thief who must not be allowed to leave, but placed in police custody. 2.6 He also accused the police of bei ng corrupt . 2.7 The appellant then pushed Faith Mwamba against the J4 wall. She fell to the ground and suffered a swollen knee and elbow . 2 . 8 The police officers detained t he appellant . 2.9 On this evidence the appellant was convicted for the offence of assault occasioning actual bodi l y harm and sentenced to 18 months imprisonment, with hard l abour . 3.0 APPEAL TO THE HIGH COURT 3.1 The appellant appealed to the High Court advancing two grounds in support of the appeal. 3 .2 The first ground of appeal was that t he evidence of the prosecution witnesses was inconsistent on t he circumstances surrounding t he assault of Fait h Mwamba by t he appellant . As for the second ground of appeal, he contended that the sentence imposed on him was excessive . 3.3 The High Court (Milimo-Salasini, J . ) , dismissed both grounds of appeal, and upheld the conviction and sentence imposed on the appellant by t he trial Magistrate . JS 4 . 0 GROUNDS OF APPEAL TO THE COURT OF APPEAL 4 . 1 Di ssatisfied with the decision of the High Court, the appellant has appealed to this court and he has advanced five grounds in support of his appeal . 4.2 But before we deal with the grounds of appeal, it is necessary that we deal with an issue raised by the appellant, which we consider to be preliminary . 4. 3 T:1e cases of Nyirongo v. The People1 and OPP v. Risbey2 were referred to and it was submitted that the appellant has been deprived of the 'materi al ' , upon which he can assail the judgment of the trial Magistrate because the proceedings in t he trial court and one page of the judgment, are mi ssi ng from the record of appeal . 4.4 In the case of Chrispin Mabvuto Banda and Another v. The People3 it was hel d t hat where the record of , proceedings is unavailable, an appeal can be determined on the judgment of the trial court, if such judgment sufficiently summaries the evidence that was presented during the trial . 4 . 5 I n this case, although the record of proceedings is missing, it i s our view t hat this appeal can be dealt J6 with using the judgment of the trial Magistrate . This is because that j udgment sufficiently summarises the evidence that was presented during the trial . 4. 6 We take this position, aware that one page of the judgment and the medical report produced during the trial, are not on the record of appeal . The missing page relates to some of the testimony of the appellant' s witness, in cross examination. 4 . 7 The evidence of that witness, as can be discerned from the judgment, refuted and maintained that the appellant did not push Faith Mwamba. In the circumstances , the absence of the missing page does not prejudice the appellant in any way. 4. 8 The appellant ' s five grounds of appeal bring out th:cee issues; t he credibility of the prosecution witnesses; the unreliability of the medical evidence; and the sentence bei ng excessive . 5.0 CREDIBILITY OF THE PROSECUTION WITNESSES 5 . 1 Two issues were raised on the credibility of the prosecution' s witnesses . It was submitted that the prosecution witnesses were all witnesses with a J7 possible interest of their own to serve, and that they gave contradictory evidence . 5 . 2 L~ngo Mutesa, Faith Mwamba' s brother in law, Charity Khosa, the appellant' s former l andlady and Detective Constable Wakumelo, the arresting officer, were all categorised as suspect witnesses and it was submitted that the court erred when it did not take that fact into account when evaluating their evidence . The case of George Misupi v. The People4 was referred to in support of the proposition . 5.3 In addition, the credibility of the evidence of Faith Mwamba, Lungo Mutes a , Charity Khosa and Detective Constable Wakumelo, was attacked for being contradictory . The case of Dorothy Mutale and Richard Sakal a v. The People6 was ref erred to and it was submitted that in the circumstances, the court shoul d have accepted the appell ant' s evidence, which was mo~e credible, that Faith Mwamba was not pushed but fell on her own . 5.4 In response to the appell ant' s submi ssions, the case of Yokonia Mwale v . The People5 was referred to and , it was submitted that the mere f act that Lungo Mutesa JS was related to Faith Mwamba did not render him a suspect witness . 5.5 As for the other witnesses, it was submitted that there was no reason, whatsoever, for categorising them as suspect witnesses . 5.6 In addition, the case of Victor Moses Sampa v. The People7 was referred t o and it was submitted that , the prosecution witnesses cannot be held to be unreliable merely because they gave contradictory evidence . I n any case, their evidence was not contradictory, they merely used different words to say the same thing . 5.7 This being the case, an inference that the appellant did not push Faith Mwamba, cannot be drawn on the evidence that was before the trial Magistrate . 5 . 8 In her judgment, the trial Magist rate considered the variations in the testimony of the prosecution ::nesses on what happened in t he off ice at the wi police station. She made the following observation : "the fact that PW2 said the accused had his fingers entangled in PWl' s hair extension and the other witnesses did not say so does not mean the witnesses lied. Witnesses do not always say exactly the same J9 thing. People perceive things differently and even the fact that they are positioned in different locations or angles at the time of witnessing an incident is bound to make them give slightly varied accounts" 5 . 9 It is our view that the trial Magistrate was on poi nt when she found that although the prosecution witnesses did not say exactly the same thing, their evidence was not contradictory. 5 .10 The evidence of witnesses is categorised as being contradictory when their testimonies differ on an issue that is considered to be material to the charge . It is not expected that witnesses sitting in an office and observing events from different angles can give a narration that is exactly t he same in all details . 5 .11 In this case, because it was not in dispute that Faith Mwamba fell , what was material was what led to the fall . All the witnesses are agreed that she fell after being pushed by t he appel lant . Thi s being the case, their evidence was not contradictory. 5 .12 What have been highli ghted as being contradictory evidence, are in fact variations on trivial details surrounding the appellant' s pushing of Faith Mwamba . JlO 5 . 13We therefore find no merit in the claim that the prosecution evidence was contradictory. 5 . 14As regards the allegation that the witnesses were suspect on account of being friends or relatives, the trial magistrat e in fact , considered the issue. 5 .15 She referred to, and applied the principle set out in the case of Yokonia Mwale v . The People5 before , ruling out the possibil ity of the witnesses having a motive to falsely incri minate the appellant . 5 .16 We have considered her reason for coming to that concl usion and we find no basis for faulti ng her . 5.17 In any case, Detective Constable Wakumelo, who was not rel ated to, or friends with Faith Mwamba, corroborated the testimony of the other prosecution witnesses. 5 . 18 We find this to be the case even though he has been categorised as a suspect wit ness because he did not arrest Faith Mwamba . On the facts of this case, there was no factual basi s of which Detective Constable Wa~umelo should have been categorised as a suspect witness . Jll 6.0 UNRELIABLE MEDICAL EVIDENCE 6 . 1 It was submitted on behalf of the appel lant that the medical report produced by Dr. Niyodusenga, should not have been relied on because it was not authentic . This is because Faith Mwamba' s hospital f i le went missing for over 10 months and the doctor could not render any explanation for that . 6.2 It was also submitted that a Dr . Hamweemba, a medical practitioner who exami ned Faith Mwamba soon after the incident, should have been cal led to corroborate Dr . Niyodusenga' s evidence . In addition to that, Dr . Hamweemba would have explained t he contents of the report, as was decided in the case of Sipalo Chibozu and Chibozu v. The People8 . 6 . 3 In response to this ground of appeal , it was submitt ed on behalf of the respondent that Dr. Niyodusenga' s evidence was credibl e because he examined Fai th Mwamba; there was therefore no reason for calling Dr . Hamweemba . 6.4 Fi rst of all, we do not see the evi dential val ue of t he fact that Faith Mwamba' s f i le went missing for some t i me, because the doctor who exami ned her gave J12 evidence. Any issue that tended to raise doubt in the prosecution evidence, should have been raised with him. 6.5 Further, the medical report that was presented during the trial was prepared by Dr. Niyodusenga . This being the case, al t hough Dr, Hamweemba had initially attended to Faith Mwamba, there was no need to call him to testify when the author of the report had given evidence. 6.6 It follows , that the holding in the case of Sipalo Chibozu and Chibozu v . The People8 that the , appellant has referred to, is not applicable to this case as it relates to situations where a medical report is admitted into evidence by virtue of Section 198A of the Criminal Procedure Code, and the author does not testify. 6 .7 In this case, the medical report was not admitted into evidence by virtue of Section 198A of the Criminal Procedure Code, because Dr . Niyodusenga, the author of the report, testified and produced it . Jl3 6 . 8 If the appellant was of t he view that Dr . Hamweemba would have helped his case, he was at l i berty to call him as a defence witness. 6. 9 We equally find no merit in the claim t hat the medical evidence was not credible and we dismiss it . 7 . 0 EXCESSIVE SENTENCE 7.1 As regards the sentence, Section 26(4) of the Penal Code was referred to and it was submit ted that s ince the offence of assault occasioni ng actual bodily harm is a misdemeanour, t he trial Magistrate should not have imprisoned the appellant, but fined him. 7.2 In addition, the cases of Musonda v. The People9 and Wilson Chimoto v. The People10 wer e referred to and it was submitt ed that si nce the appellant was a first offender and there were no aggravating f actors, the appropriate sentence should have been a fine . 7. 3 Finally, it was pointed out that the appellant was subjected to ' lengthy provocation' by the poli ce, who despite being informed of the thefts he had suffered, suggested that he sues the ' t hieves ' in the civil courts. J14 7 . 4 On the basis of the case of The People v . Njovu11 it , was submitted that this conduct by the police, shoul d have been taken into account at sentencing because it was 'responsible for the appellant' s conduct on the fateful day. 7.5 In response, the respondent submitted t hat considering t he circumstances of this case, the sentence imposed on the appellant should not come to us with a sense of shock as being excessive. 7 . 6 Section 16 (5) (b) of the Court of Appeal Act, lays out the approach that we should take when dealing with an appeal against the sentence . It provides that : 'the court shall not interfere with a sentence just because if it were a trial court it would have imposed a different sentence, unless the sentence is wrong in principle or comes to the Court with a sense of shock.' 7.7 The offence of assault occasioning actual bodily harm is set out in Section 248 of the Penal Code and it at~racts a maximum sentence of S years imprisonment. 7 .8 In this case, the onl y mitigating factor in f avour of the appellant is that he was a first offender . JlS His age and the fact that the victim di d not suffer very serious injury, also favoured him. 7 . 9 However, we do not accept the assertion that he sr..ould not have been imprisoned but onl y fined, because there were no aggravating factors. 7. lOThis is an assault that took place in a police station . The appell ant reported his estranged girlfriend to t he pol ice on an allegation of theft . After hearing the parties, the police decided that there was no evidence supporting t he al legation and advised on he should proceed . 7. 11 The appellant did not accept the positi on of the police and attempted to stop Faith Mwamba, who had been ' cleared' by the police from leaving the poli ce station, injur i ng her in the process. 7 .12We are at pains to understand why the appellant ' s conduct is still being justified on the grounds that he was provoked by the police officers' refusal to arrest Faith Mwamba . 7.13All we see is an arrogant individual who acted with impunity. Jl6 7 . 14Acting with impunity, as was the case i n this matter, was an aggravating factor and i t ent itled the trial Magistrate to impose a custodial sentence . 7.15 In the circumstances , the sentence of 18 months does not come to us with a sense of shock as being excessive . 8. 0 VERDICT 8 . 1 The arguments in support of the appeal against both conviction and sentence having f ailed , we dismiss the appeal and uphold bot h t he conviction and the sentence imposed by the trial Magi strate. 8.2 Although the appellant was denied bail followi ng the dismi ssal of his appeal by the High Court, we note that f or unexplained reasons , he was not taken into ct.:stody. For that reason, t he sentence will start running from P.C.M. NGULUBE Y. CHEMBE COURT OF APPEAL JUDGE JUDGE