Innocent Theo v The People (Appeal No. 148/2022) (23 February 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 148/2022 HOLDEN AT KABWE (Criminal Jurisdiction) BElWEEN: INNOCENT THEO l'. 3 FEB 2024 APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga, JJA On 17th May 2023 and 23rd February 2024 For the Appellant: Ms. M. Nzala, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. 0. Siankanga, Acting Deputy Chief State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Major Isaac Masonga v. The People (2009) ZR 246 (SC) 2. David Zulu v. The People (1977) ZR 151 (SC) 3. Inonge Anayawa and Sinjambi v. The People -Appeal No. 143, 144 of 2011 4. Abel Banda v. The People (1986) ZR 105 J2 5. Ezious Munkombwe and Others v. The People - Court of Appeal No. 7, 8, 9 of 2017 6. Saidi Phiri v. The People - Selected Judgment No. 30 of 2015 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was charged with one count of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of offence alleged that on 30th August 2020 at Chipata in the Eastern Province of the Republic of Zambia, the appellant murdered Samson Phiri. He was subsequently sentenced to life imprisonment with hard labour by Lombe-Phiri J. 2.0 EVIDENCE IN THE COURT BELOW 2.1 The evidence of eight prosecution witnesses secured the appellant's conviction. The circumstances surrounding the deceased's death are that the deceased, a Malawian citizen, came to the Chipangali area in Eastern Province, to do some piece work. He initially worked for 3 days with PWl and subsequently with PW2. When he finished building J3 a caretaker's house, at PW2's farm, he requested to go to Malawi and get his family. PW2 accepted and borrowed a bicycle for him to use to go to Malawi. 2.2 The deceased left and was expected to return after a week. 2 weeks later he had not returned and PW2 subsequently heard of a person who was discovered dead at Malipa's farm. He went there and confirmed that it was the man from Malawi. Information was received that the deceased had a bicycle in his possession and that the appellant was said to have a bicycle when he previously never had one. The appellant's house was about 200 metres away from where the deceased's body was found. 2.3 In the company of others, PW4 went to the appellant's house where they found the said bicycle in the sitting room, upon being asked, he admitted to PW4 that he was the one who killed the deceased as he had insulted him. A blood stained hoe handle was equally recovered from the appellant's house. They picked the appellant and took him to the place where the body of the deceased was found partially buried. While there, he admitted to the Chief and other people that he was the one who murdered the deceased. PW7, the appellant's J4 sister, informed the court that sometime in August 2020, while at home, the appellant visited her in the company of someone she did not know, whom the appellant referred to as a friend from Malawi. She also told the trial court that the two had with them a bicycle. 2.4 This marked the end of the prosecution evidence. The appellant was found with a case to answer and he was put on his defence. 3.0 DEFENCE 3.1 In his defence, the appellant opted to give sworn evidence and did not call any witnesses. The appellant denied having murdered the deceased and he expressed shock and ignorance on how the bicycle found itself in his living room. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After careful consideration of the evidence before her, the learned trial judge found that this case solely hinges on circumstantial evidence as no eye witness testified to the effect that they saw the appellant murder the deceased. The trial judge further found that the appellant was the last person to have been seen with the deceased alive and he was found in possession of a bicycle belonging to the deceased. JS 4.2 The trial court further found that the appellant was found in possession of a blood-stained hoe handle and drag marks and blood stains were leading away from his house to the place where the deceased's body was recovered. All in all the court found that the prosecution had proved its case against the appellant beyond reasonable doubt. 5.0 GROUNDS OF APPEAL 5.1 Disconsolate with the conviction and sentence of the court below, the appellant launched the present appeal fronting two grounds structured as follows: (1) The learned trial judge erred in law and in fact when the court relied on a purported confession and evidence of leading when the same were obtained in unfair circumstances. (2) The learned trial court erred in law and fact when the court convicted the appellant based on circumstantial evidence which did not take the case out of a realm of conjecture owing to serious dereliction of duty by the investigations office. 6.0 THE APPELLANT'S ARGUMENTS 6.1 The gist of the appellant's submission in support of the first ground of appeal is that the trial court in convicting the appellant heavily relied on a confession statement without taking into consideration the J6 manner the said confession statement was obtained. According to learned counsel, there is evidence on the record of appeal that the appellant was beaten and threatened by PW4 into a confession. 6.2 It was the appellant's further contention that the learned trial judge did not take into consideration, the appellant's explanation despite the unfavourable atmosphere in which the purported confession was extracted. We were referred to the case of Major Isaac Masonga v. The People1 where it was held that: "Any unfair or improper conduct by persons other than the police officers in extracting evidence can lead to exclusion of the evidence by the discretion of the court." 6.3 Learned counsel submitted that the evidence of recovery of the bicycle was not reliable and conclusive as the appellant stated that the bicycle was not found in his house and neither was it tested for fingerprints. 6.4 We were urged to allow this appeal, quash the conviction, set aside the death sentence and acquit the appellant. 6.5 In support of the second ground of appeal, it was learned counsel's contention that if the confession evidence and the evidence on leading are excluded from the record, the remaining evidence is circumstantial J7 evidence which permits other inferences to be drawn due to the dereliction of duty by investigating officers. According to the learned counsel for the appellant, the investigating officers failed to undertake the following investigations: (1) To lift fingerprints from the bicycle. (2) To bring the blood-stained hoe handle to court (3) To bring photos of the alleged drag marks which had blood. 6.6 It was contended that given the foregoing it is clear that the circumstantial evidence failed to take this case out of the realm of conjecture as to permit only an inference of guilt. We were referred to the case of David Zulu v. The People.2 6. 7 We were urged to allow this appeal, quash the conviction and set aside the death sentence. 7.0 RESPONDENT'S ARGUMENT 7 .1 On behalf of the respondent, the learned counsel in response contended that the trial court was on firm ground when it convicted the appellant of the offence of murder based on confession evidence. It was submitted that PW4 whom the confession was made to, was subjected to cross-examination and remained unshaken. It was J8 learned counsel's contention that the trial court relied on the confession statement because it was proved beyond all reasonable doubt that it was made voluntarily as guided by the Supreme Court in the case of Inonge Anayawa and Sinjambi v. The People3 . 7.2 It was further submitted that PW4 was a member of the neighbourhood watch who do not fall in the category of persons in authority as guided by the Supreme Court, in the case of Abel Banda v. The People4 where it was held that: "A village headman is not a person in authority for purposes of administering a warn and caution before interrogating a suspect since his normal duties do not pertain to investigating crime." 7.3 In responding to the second ground of appeal, it was learned counsel's submission that the circumstantial evidence on the record was cogent and it took this case out of the realm of conjecture leaving only an inference of guilt on the part of the appellant. It was learned counsel's submission that the appellant was the last person to be seen with the deceased and he was found in possession of the deceased's bicycle and never gave a proper explanation. We were referred to the case of Ezious Munkombwe and Others v. The People5 in which we J9 stated that when considering a case anchored on circumstantial evidence, the strands of evidence making up the case against the appellants must be looked at in their totality and not individually. 7.4 It was contended that when considered as a whole or in totality, the evidence on record takes this case out of the realm of conjecture, permitting only the inference of guilt. We were urged to dismiss this appeal and uphold the conviction and sentence of the lower court. 8.0 THE HEARING 8.1 At the hearing of the appeal, learned counsel for the appellant, Ms. Nzala, placed full reliance on the documents filed. On behalf of the State, Mr. Siankanga informed the court that the State would equally rely on the heads of argument filed before the court. 9.0 DECISION OF THE COURT 9.1 We have considered the appeal, the evidence adduced in the court below, the authorities cited and the arguments advanced by respective learned counsel. 9.2 We note that ground one of the appeal raises the issue surrounding a confession made to PW4, a civilian witness. It is clear from the facts on the record that when PW4 followed the appellant to his house to JlO inquire about the whereabouts of the deceased, whereupon the appellant openly confessed to killing the deceased because the deceased had insulted him. It is trite that where a confession is made to a civilian witness, there is no need for trial-within-a-trial to be held. This is because a civilian is incapable of administering a warn and caution statement (see the Abel Banda case supra). The only way in which such a confession may be excluded is when it was given in unfair or improper circumstances as per the Major Isaac Masonga case supra. 9.3 There is nothing on the record which shows any unfair or improper conduct on the part of PW4. Learned counsel has argued that PW4 beat the appellant. The trial court disbelieved the account given by the appellant that he was subjected to beatings. We cannot fault the learned trial judge in finding as she did. We agree with counsel for the respondent that the PW4 was subjected to cross-examination and his evidence remained unshaken. 9.4 Therefore the confession was properly accepted and relied on by the learned trial court. We find no merit in this ground of appeal and we accordingly dismiss it. J11 9.5 We now turn to ground two. In this ground of appeal, the appellant alleges that the court below erred in fact and law by convicting on insufficient circumstantial evidence. 9.6 We have in several cases reiterated that, to convict based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt. In the case of Saidi Phiri v. The People6 the Supreme Court guided that: , "Where the prosecution's case depends wholly or in part on circumstantial evidence, the court is, in effect, being called upon to reason in a staged approach. The court must first find that the prosecution evidence has established certain basic facts. Those facts do not have to be proved beyond all reasonable doubt. Taken by themselves, those facts cannot, therefore, prove the guilt of the accused person. The court should then infer or conclude from a combination of those facts that a further fact or facts exist. The court must then be satisfied that, those further facts implicate the accused in a manner that points to nothing else but his guilt. Drawing conclusions from one set of established facts to find that another fact or facts are proved, clearly involves a logical and rational process of reasoning. It is not a matter of casting any onus on the accused, but a conclusion of guilt a court is entitled to draw from the weight of circumstantial evidence adduced before it." J12 9.7 With this position resolutely in mind, we now have to consider whether the prosecution, through the circumstantial evidence adduced before the trial court, proved the case against the appellant beyond all reasonable doubt. The appellant advanced arguments relating to a confession which we have already addressed in ground one above. We add that in addition to the confession made by the appellant to PW4, there is evidence on the record that the appellant was the last person to have been seen with the deceased alive. The deceased's bicycle was also found in the appellant's possession and no explanation was given as to how the bicycle got to his house. In addition, the deceased's body was recovered in a shallow grave about 200 metres from the appellant's house, a place to which the appellant led PW4. This in our view is very strong circumstantial evidence to warrant a conviction. We also note that this is not a case only anchored on circumstantial evidence. There is also confession evidence, which we have already held was properly before the court below. 9.8 Therefore, we find no fault with the judgment of the lower court. Accordingly we dismiss this appeal as it lacks merit. ' J • ) J13 10.0 CONCLUSION 10.1 Having dismissed the appeal, we uphold the appellant's conviction and sentence. DEPUTY JUDGE PRESIDENT P. C. M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE