Dominic Salanga and Ors v The People (APPEAL NO. 101,102,103 OF 2024) (15 November 2024) – ZambiaLII

L1'1 Tnl!, \;VU.Kl u.r arrJ:!iJ-U,1 u.r ;.£,J\1Vl.Dll\ flOLDEN AT KABWE 'Criminal Jurisdiction} BETWEEN: DOMINIC SALANGA !ST APPELLAN~ [.,ASFORD TOTOLO 2ND APPELLAN DOUGLOUS TOTOLO 3RD APPELLAN rHE PEOPLE RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 14th October, 2024 and 15th November, 2024. fi'or the Appellant: Mrs. K. M. Nyimbiri, Legal Aid Counsel, Legal Aid l fi'or the Respondent: Mr. F. M. Sikazwe, Acting Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT ~GULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. R vs Siangombe and Siababwa Criminal case no. 9 of 1936 '2. Esaya Mumpansha N'ange Chiti and Moshi Bonoma vs The Pe Appeal No. 12, 13, 14of2021 3. Boniface Chanda Chola and 2 others vs The People (16 of 198! (1989) ZMSC III 4. David Zulu vs The People (1977) ZR 151 J . \./Ul/LVU.:::, J.YJ.L,UU,/11,UV v.:::, 1 ru:::; .rt::-U}'lt::- rl.}'Jlt::-Ul uo UJ 4U44 f:A?gislation referred to: 1. The Penal Code, Chapter 87 of the Laws ofZ ambia. 2. The Criminal Procedure Code, Chapter 88 of the Laws ofZamb L.O INTRODUCTION L. 1 The three appellants were tried before the High Court at Kf (Limbani, J) on three counts. The first count was that of mu: contrary to section 200 of the Penal Code, Chapter 87 oj Laws of Zambia. The particulars were that on 13 April, 201 Kabwe, in the Central Province of the Republic of Zambia, appellants jointly and whilst acting together murdered Jc Fubilwa. L. 2 The second count was that of Attempted Murder, contrary to se, 215 of the Penal Code. The particulars were that the appellant: 13 April, 2018 at Kabwe in the Central Province of the Republ Zambia, jointly and whilst acting together, attempted to mt Charles Salanga. 1.3 The third count was that of Attempted Murder contrary to sec 215 of the Penal Code, Chapter 87 of the Laws of Zambia. particulars were that the appellants, on 13 April, 2018 at Kab\ -J2- tne central .t-'rov1nce 01 tne t<epuonc or Z,amma, Jo1nuy ana w acting together, attempted to murder Jean Salanga. l .4 The prosecution called nine witnesses in support of their case. court subsequently convicted the appellants of the murder inc one and the attempted murder in count two. The court how1 acquitted the appellants for the attempted murder in count tl because it was of the view that the offence was not proved be: reasonable doubt. ;!.0 EVIDENCE BEFORE THE LOWER COURT 2.1 The appellants' convictions were secured by the evidence of prosecution witnesses. The evidence was that on 12 April, 20: about 23:45 hours, PWl was woken up by his wife, Jean Sal. who alerted him that their house had been set ablaze. They rar and sought shelter in the kitchen while watching, as their pro1 got burnt in the inferno. Soon thereafter, PWl heard a gunshot realized that his step son, James Fubilwa had been shot. Af while, he also realized that he too had been shot on the back ar lost consciousness. 2.2 PWl regained consciousness at the hospital in Kabwe wher narrated to the police who were investigating the matter sometime in November, 2017, his brother, the first appellant -J3- LJ.U c:;aLc:;J.J.c:;u LU l\.J.J.J. lJ.J.J.J.J. wuc:;u Luc:;y lJ.c::tU ct Ul-:iJJULC uvc:;1 -:iUJ.J.lt: Ci: PWl went on to state that he also suspected Levy Muntemba a had threatened to kill him at a funeral because he was suspect1 being a wizard. PW 1 testified that he had 20 pellets stuck in his · and some pellets on the top of his hip and his stomach, which removed at the hospital when he had an operation. 2.3 The evidence of PW2, Jean Salanga was that her husband anc son were shot on the material night, with her son losing his life her husband suffered serious injuries. She however did not se( persons who shot them. 2.4 The evidence of PW4, David Fubilwa was that on 13 April, 2018, he heard about James Fubilwa's death, he went to PWl's vi where he found the deceased's body. On 16 April, 201 postmortem examination was conducted on the body of the decec: 2.5 PW6, Welcome Moonga's testimony was that on 11 April, 201 about 16:00 hours. The first appellant and the second appel whom he had known for 15 years went to his home to borrow a B: Shotgun as they wanted to use it to scare monkeys at the field. gave the firearm to Levy Muntemba, who was in the company o first appellant and the second appellant. The firearm was retu -J4- on /-\pru, oy Levy iv1uniemoa, al aooul uo:uu nours. 10 LU 10 later heard that a person was shot dead at PWl 's village. 2.6 On 26 May, 2018, PW6 was summoned to the Police and informed that his firearm was used to kill James Fubilwa at P' village. 2.7 PW8, Detective Sargent Lubasi Makuyu, the scenes of crime o1 testified to the effect that on the fateful day, 13 April, 2018, he vi: the scene of crime at PWl 's village where he found the burnt h and the body of the deceased. He was also handed over two pe and noticed that the deceased had three wounds on his body, on the chest while two were on the arm. 2.8 It was PW8's testimony that during investigations, the sec appellant and the third appellant led the police to the scene demonstrated the roles that they played during the shooting w led to James's death and the injury of PWl. 2. 9 PW9, Detective Inspector Boniface Halinga was the arresting ofl Upon receiving a report about the shooting on the fateful da proceeded to the scene at about 08:45 hours where he found the houses burnt, with the body of the deceased lying nearby. noticed that the deceased suffered bullet wounds on the t shoulder and chest, respectively. From the investigations -JS- concluded that PW 1 was shot and his house was burnt becaus was suspected of practicing witchcraft. 2.10 PW9 stated that while PWl was at the hospital, his brother, the appellant was apprehended and he confessed to PW9 that April, 2018 at 23:00 hours, he went to PWl 's house with the 1 appellant and Levy Muntemba. Their mission was to kill because he had bewitched a lot of family members. Accordir PW9, the first appellant confessed that they set PWl's house or and when he came out of the house, he was shot. The trio then on a motorbike. 2.11 PW9 testified that when he interviewed the second appellant, he PW9 that he got the gun from PW6 on 12 April, 2018. The se1 appellant told PW9 that he was in the company of Al, A3 and Muntemba when they got the firearm from PW6. 2.12 It was PW9's testimony that A2 led the police to the home of where they borrowed the firearm. It was PW9's testimony tha admitted being involved in the shooting of PW 1 and the dece because he feared that he would be killed if he did not participa 2.13 DWI, the first appellant denied having been involved in the sh0< incident. He was apprehended at the hospital when he went to PWl. -J6- l.1'+ LJW'L, tne secona appellant statea that ne was apprenenaea o: May, 2018. He denied knowing anything about the shooting. 2.15 DW3, the third appellant gave evidence in his defence that he apprehended by the police on 1st June, 2018. He denied kno the other appellants although he was jointly charged with the: the High Court. He however retracted his story and stated th, was related to PWl and DWl. 3.0 CONSIDERATION OF THE MATTER BY THE LOWER COURT 3. 1 The lower court considered the evidence adduced and made following findings of fact - 1. That the deceased died due to gunshot wounds 2. That there was an attempt to kill PWl 3. That there was no medical report or evidence to p count three 4. Although PWl and the deceased were shot on the nig1 13 April, 2018, none of the witnesses saw the attacker 3.2 The lower court found that the evidence before it was circumsta as none of the witnesses saw the appellants commit the offences they were tried for. 3.3 The court found that PWl 's suspicions that the attack on his fc which resulted in the death of James was a result of threats -J7- were maae oy 1:ne rirs1: appe11an1: ana Levy 1v1un1:emoa ana confirmed by PW7 and PW9. The court further found that evidence of PW6 connected all the appellants to the commissic the alleged offences. 3.4 The court found that the three appellants were related and tha first appellant and the second appellant left PW6's house wi firearm which was used in the shooting. The court further fc that the evidence that the appellants suspected PWl of pract: witchcraft was not challenged by the appellants. The court fc that PW6's firearm was borrowed on 11 April, 2018 by Muntemba and was returned on 13th April, 2018. The court fc that the firearm was used in the attack at PWl 's house. This~ few hours after the incident (the shooting) at PW 1 's house. 3.5 The court found the alibi's that were put forward by the t appellants were afterthoughts and that the circumstantial evid and the coincidences were so overwhelming and that they conn( the appellants to the commission of the offences. The court car the conclusion that the prosecution had proved counts one anc but was of the view that there was insufficient evidence agains appellants on the third count. -J8- :5.o Tne appellants were convicted. on counts one and. two but acquitted on count three. :1-.0 THE APPEAL +.1 The appellants were dissatisfied with the decision of the lower c and appealed to this court, advancing two grounds of appeal w were that - 1. The trial court erred in law and fact when it admitte, of confession statements and evidence leading when evidence adduced from trial within trial showed tha1 of afarestated canfe ssians and evidence leading obtained from the appellants involuntarily. 2. The learned trial Judge erred bath in law and fact u he convicted an circumstantial evidence which did of raise the inference guilt as the only inference. 5.0 APPELLANTS' HEADS OF ARGUMENT 5.1 In arguing ground one, it was submitted that the police breachec Judges' rules by subjecting the appellants to repeated interviews interrogations. It was argued that the appellants were intervi< on consecutive days, these being the 25, 26 and 27 May, 2018. 5.2 It was contended that the appellants' relatives were absent '\i statements were recorded from them and that they were intervi« at odd hours. They were allegedly subjected to mental torture were under duress and undue influence during interrogations. It -J9- con1enaea 1na1 1ne ponce cnangea 1ne s1a1emen1s or 1ne wnne to the detriment and prejudice of the appellants. 5.3 Counsel maintained that statements were obtained from appellants when they were unwell and during prolonged deten The case of R vs Siangombe and Siababwa1 was referred to in regard. Further, the case of Esaya Mumpansha, Nange Chiti Moshi Bonoma vs The People2 was referred to on the iss1: challenging the evidence of still pictures with a written explanc from the police as being unreliable. 5. 4 Regarding the unreliability of the evidence of leading in ce1 circumstances, such as where the accused persons lead the poli a place that they already know, the case of Boni fa ce Chanda C. and 2 others vs The Peop le3 was referred to. We were urg(: allow the first ground of appeal for the aforestated reasons. 5.5 Turning to ground two, it was submitted that the lower court(: when it held that the circumstantial evidence in the matter we cogent that it permitted only an inference of guilt. The case of D Zulu vs The People' was referred to. It was argued that prosecution evidence was anchored on suspicion which historical from 2016 and 201 7. It was contended that prosecution failed to discharge the burden of proving the case be: -JlO- au reasonao1e aouot. was arguea that there was no ev1aence lt directly linked the appellants to the commission of the crimes that other inferences could have been drawn from the evidenc record. 5.6 It was argued that the alibis raised by the appellants were investigated. We were urged to allow the appeal as the circumsta evidence was weak and could not lead to an inference of guilt a: only reasonable inference. 5.0 THE HEARING 5.1 At the hearing of the appeal, Mrs. Nyimbiri, Learned Legal Counsel submitted that she would rely on the grounds of appeal heads of argument filed. We were urged to allow the appeal. 5.2 On behalf of The People, Mr. Sikazwe, Acting Deputy Chief ~ Advocate submitted that he would make viva voce submis~ because the State did not manage to file heads of argumer response to those of the appellants. He submitted that he wa: in support of the convictions and sentences and gave the poin the disagreement with the trial court's findings as follows - "That the evidence of the prosecution which led to conviction of the appellants was that of leac. demonstrations and confessions, respectively." -J11- S.3 The court's attention was drawn to page 70 of the record of ap· where the learned defence counsel, Mr. Zulu, submitted tha1 evidence of leading was not obtained freely and voluntarily a~ appellants were not warned and cautioned before they allegedl: the police to the scene of crime. S.4 The trial court then ordered that a trial within trial be held. Sikazwe relied on the case of Esaya Mumpasha and others vs People2 and stated that the lower court did not follow the guid of the Supreme Court in the aforementioned case regarding admissibility and voluntariness of confession statements. learned Acting Deputy Chief State Advocate submitted that the o of a trial within trial is to ascertain the voluntariness of a confes S.5 He further submitted that when the lower court conducted the within trial, it did not determine the voluntariness of the eviden leading nor did it determine the voluntariness of the warn caution statements. According to Mr. Sikazwe, the lower cour1 sight of the issue and misdirected itself by admitting the confe~ statements into evidence when their voluntariness was established. It was submitted that if this court excludes the · -J12- ana caunon Slalemenls irom lne eviaence, lnere w111 oe no ev1w against the appellants. 5.6 Referring to the case of Obvious Matam.bo vs The People5 it , submitted that the lower court misdirected itself when it acce the evidence of PW9, who tendered a ballistic report into evid1 when he was not the one who authored it. 5. 7 Regarding the conviction for the offence of attempted murder, it submitted that for such a conviction to stand, there must be intention to kill. We were urged to quash the convictions, set a the sentences and set the appellants at liberty. 7.0 CONSIDERATION OF THE MATTER BY THE COURT AND i DECISION 7.1 We have considered the record of appeal and the arguments by · counsel. The core issue for determination in this appeal is the of the alleged confession statements, the demonstrations that · allegedly made by the appellants and whether they were n voluntarily. We shall also consider the manner in which the lc court conducted the trial within trial and whether the appell were prejudiced in any way. 7.2 PW8, a scenes of crime officer, gave evidence in the lower court at the point when he was about to give the evidence of leading -J13- overwne1m1ng ana tnat tne appellants were tne ones wno comm the murder and the attempted murder, respectively. We are o· view that, having expunged the confession statements, the evid of leading and demonstrations from the record, there is no evid that links the appellants to the commission of the murder attempted murder, respectively. From the evidence on record note that PW9 tendered the ballistic expert's report before the 1, court when he was not the one who authored it. We are of the that lower court should not have allowed the admission of ballistics examination report into evidence by a person who wa! the author and who did not conduct the ballistic examination. is in accordance with section 191A of the Criminal Proce1 Code, Chapter 88 of the Laws of Zambia. We accordingly exp, the ballistic examination report from the record. 7 .8 The evidence of PW6, in cross-examination by the learned Def Counsel was that when Levy Muntemba went to borrow his fire he was not in the company of any of the appellants. We ther, have difficulties connecting the appellants to the firearm that Muntemba borrowed in their absence. 7.9 We also note that the appellants were not at PW6's home when Muntemba borrowed the firearm from him and we are of the -J16- ll.la.l ll.ll;:;11;;; 1.::, UV l...,.Ul...,Ul.U.::>la.ll llctl c;v1uc:;1.Ll...,c; Ulctl Ul.l.l'\..::> ll.ll;;; l appellants to the commission of the offences herein. We accord: find merit in the second ground of appeal and we allow it. We merit in the three appeals and we allow them. r .10 The convictions on both counts are accordingly quashed. The t appellants are acquitted and their respective sentences are set a r .11 We note that Mr. Sikazwe, Acting Deputy Chief State Advc conceded to the errors on the record and brought them to attention. This was commendable on the part of the State. ~ P. C. M. NGULUBE COURT OF APPEAL JUDGE If=Mt:(zENGA Y. CHEMBE :OURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J17-