Maybin Mutale and John Sichalwe v The People (APPEAL 42,43/2023) (28 March 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL 42,43/2023 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: MAYBIN MUTAL 1 APPELLANT ST JOHN SICHAL 2ND APPELLANT ~ 2 8 MAR 2024 AND ..I NAL R.ECIS. . THE PEOPLE RESPONDENT X50067.L CORAM: NGULUBE, MUZENGA AND CHEMBE JJA On 20th February, 2024 and 28th March, 2024. For the Appellants Mrs. L.Z. Musonda- Senior Legal Aid Counsel, Legal Aid Board For the Respondent Ms. M.G. Kashishi- Principal State Advocate, National Prosecution Authority JUDGMENT CHEMBE, JA delivered the judgment of the Court Cases refe rred to: - 1. Chigowe v The People (1977) ZR 21 (SC) 2. Guardic Kameya Kavwama v The People Appeal No. 64 of2 015 3. Misupi v the People (1978) ZR 271 (SC) 4. Dorothy Mutale and another v The People (1997) ZR S.J 51 (SC) 5. Mbinga Nyambe v The People (2011) SCZjudgment No 5 6. Saidi Banda v The People SCZ Judgment No. 144of 2015 7. Webster Lumbwe v The People (1986) ZR 93 (SC) 8. Machipisha Kombe v The People (2009) ZR 282 J2 9. David Zulu vs The People (1977) ZR 115 10. Yokoniya Mwale v The People SCZ Appeal No. 205 of 2014 11. Haamenda vs The People (1977) ZR 184 (S.C) Legislation referred to: 1. The Penal Code Chapter 8 7 of the Laws of Zambia. 1.0. INTRODUCTION 1.1 The appellants were convicted on one count of Murder contrary to section 200 of the Penal Code by Judge D. Mulenga. 1.2 The particulars of offence alleged that on 9th August 2020, the Appellants whilst acting with three others murdered Peter Mbewe. The other three persons were acquitted. 2.0. THE EVIDENCE IN THE COURT BELOW 2.1 The prosecution's case was that on 9th August, 2020 Evelyn Mbewe (PW4) saw the 1st Appellant at the deceased's house. The 1 st Appellant requested the deceased to accompany him to Kanuna village where he wanted the deceased to assist him apprehend his younger brother. On the same day, the deceased was later seen at the 1st Appellant's shop by Davy Kaonga (PWl) seated outside whilst having a conversation with the 1s t Appellant. 2.2 Evidence was led that at around 20:00 hours on the material day, Lawrence Mulenga Mutale (PW2) saw the deceased drinking a locally brewed beer known as kachasu with the 2nd Appellant and J3 2 others. It was the prosecution's evidence that the deceased was last seen leaving PW2's bar with the 2nd Appellant and 2 other people. The following day the deceased's body was found lying along-side the road with multiple cuts to the head. 2.2 On 14th August, 2020, a postmortem examination was conducted on the deceased's body which findings revealed that the cause of death was severe head injuries due to blunt force trauma. PW9 carried out investigations and charged the Appellants with the subject offence. 2.3. In his defence, the 1 st appellant admitted picking the deceased from his house on the evening of 9th August, 2020 and leading him to his friends. However, he denied being involved in the deceased's murder and stated that he was only implicated because he knew the deceased. As for the axe recovered from his home the 1s t appellant testified that the said axe was not the one used to inflict injuries on the deceased. 2.4. The 2 nd appellant testified that on 10th August, 2020, as he was walking to his place of work he noticed a crowd of people at the scene where the body of a man was found. He later came to know that the dead body was that of the deceased. The 2nd appellant denied that he had anything to do with the death of the deceased. In relation to the evidence against the 2nd appellant that he drunk kachasu with the deceased from PW2's bar, the 2nd appellant J4 merely gave a bare denial and testified that the witness just fabricated a story against him. 3.0. DECISION OF THE TRIAL COURT 3.1. After considering the evidence, the trial Judge found that the appellants assaulted the deceased with the intention to kill or cause grievous harm and as such malice aforethought was established. That the evidence was based on circumstantial evidence. 3.2. The learned judge found that the explanations given by the appellants particularly that the 1 st appellant was requested by Mbambo and Bwalya to pick the deceased from his house and that the appellant was at home from 17:00 hours were after 2nd thoughts since the said defences were never raised during the cross examination of the prosecution witnesses. The trial Court found that the 1 st appellant's confession statement which was admitted in evidence after a trial within a trial was the best evidence against him. 3.3 The trial Court also considered that the axe blade measuring 8cm by 1cm recovered from the 1st appellant's house fitted in with the pathologist's finding that one of the injuries on the deceased measured 8 x 2 cm long was an odd coincidence. The learned judge found that the only inference that could be drawn was that the said axe was the weapon used to murder the deceased. JS 3.4. As for the 2nd appellant, the trial court found that the evidence of PW2 that the 2nd appellant was with the deceased drinking kachasu the night of 9th August, 2020 was corroborated by the recovery of the white canvas from the 2nd appellant's house which matched the shoe prints found at the scene of crime. The trial judge found that the said pieces of evidence placed the 2nd appellant at the scene of crime. He also found the evidence of PW2 was corroborated. 3.5. The trial Court held that the appellants had a common purpose when they murdered the deceased and was therefore satisfied that the case was proved beyond reasonable doubt. 4.0. GROUNDS OF APPEAL 4.1 Aggrieved with the decision of the trial court, the Appellant launched this appeal advancing the following grounds: Ground One The trial court erred in law and fact when it found the Appellant's claim that the alleged confession was not voluntary as an afterthought and admitted into evidence and convicted him based on the safe. Ground two The trial Court erred in law and in fact when it convicted the Appellants based on circumstantial evidence when the same did J6 not attain such a degree of cogency so as to infer only a guilty inference 4.2 In the arguments in support, the Appellants' Counsel submitted, in relation to the first ground of appeal, that the trial court erred in in admitting the 1 st Appellant's confession statement when it was not proved beyond reasonable doubt that it was given freely and voluntarily. She reproduced a lengthy portion of the proceedings and refe rred us to the case of Chigowe v The People 1 . It was argued that the evidence of DW2 in the trial within a trial should not have been disregarded as it was consistent. 4.3 It was also argued that the trial court misdirected itself when disregarded the evidence of DW3 on the ground that she was the 1s t Appellant's mother. Relying on the case of Guardic Kameya Kavwama v The People2, the Appellants submitted that there was no law that precluded a blood relative from testifying for a party. 4.4 The Appellants submitted further that the prosecution witnesses in the trial within a trial were witnesses with an interest to serve as they were persons in authority and could not admit that they beat the Appellants in order to secure a confession. We were referred to the case of Misupi v the People3. 4.5 In support of the second ground of appeal, the Appellants contended that the Respondent's case rested largely on circumstantial evidence which was not cogent. It was submitted J7 that apart from the evidence that the 1st Appellant called the deceased from his home, there was no evidence that he was the last person seen with the deceased. The only other evidence was that an axe was recovered from the 1 st Appellant whose blade measured 8.1 cm which matched the size of the wound on the deceased. It was argued that the axe was a common household tool found in many homes and there was no proof that the recovered axe was the one used in the assault. 4.6 Regarding the 2nd Appellant, it was submitted that the evidence that he had a pair of shoes whose tread matched the shoe print found at the scene could not lead to an inference of guilt. It was submitted that the 2nd Appellant had denied that the shoe recovered was his. 4. 7 A further argument was the Respondent had withheld evidence that an identification was held where the 2nd Appellant was not identified. There was evidence that the deceased was poisoned by people who ran away and it could be inferred from their conduct that they were responsible for the murder. Our attention was drawn to the case of Dorothy Mutate and another v The People4 where the Supreme Court held that where two or more inferences can be drawn, the court should adopt the one that is favourable to the accused. JS 4.8 On the basis of the decisions in Mbinga Nyambe v The People5 and Saidi Banda v The People6, the Appellants maintained that the circumstantial evidence did not take the case out of the realm of conjecture to allow only an inference of guilt. It was submitted that the Respondent did not discharge the evidentiary burden. We were urged to quash the convictions and set the Appellants at liberty. 5.0 RESPONDENT'S ARGUMENTS 5.1 In response, the Respondent supported the decision of the trial judge to admit the confession statements into evidence. It was submitted that the trial Judge was alive to the fact that the burden of proving that the confession was given freely and voluntarily lay on the prosecution as borne out by the analysis in the judgment. 5.2 It was argued further that the evidence of PWl and PW2 was not discredited during the trial within a trial while the evidence of DW 1 and DW2 was disregarded by the trial court for want of credibility. We were referred to the case of Webster Lumbwe v The People7 where appellate courts were cautioned against interfering with the trial court's findings of fact. 5.3 On the allegation that there was no independent witness during the trial within a trial, it was submitted that the Appellants had opted not to have anyone during the recording of the warn and caution statements. J9 5.4 In relation to the second ground of appeal, the Respondent maintained that the circumstantial evidence adduced had attained a degree of cogency which permitted only an inference of guilt. It was submitted there were certain facts which were established by evidence which amounted to odd coincidences. It was submitted that as held in the case of Machipisha Kombe v The People8 that odd coincidences could constitute evidence. The Respondent pointed to the axe whose measurements matched the injury on the deceased. 5.5 A further argument by the Respondent was that the allegation that there were suspects who were alleged to have poisoned the deceased had no relevance to the issue in the court below as the cause of death was not poison. We were urged to uphold the convictions and dismiss the appeals. 6.0 CONSIDERATION OF THE APPEAL AND DECISION 6.1 We have carefully considered the evidence adduced in the court below. In the matter before us no witness saw the appellants herein murdering the deceased person. In simpler terms there was no eye witness to the murder of the deceased. The prosecution's case rested on witnesses who saw the deceased with the appellants prior to his death. This clearly shows that this matter rested purely on circumstantial evidence. The leading authority on circumstantial evidence is the case of David Zulu v The JlO People9 in which the Supreme Court set out the parameters of circumstantial evidence as follows; (i) "It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the fact in issue and from which an inference of the fact in issue may be drawn. (ii) It is incumbent on a trial judge that he should guard against drawing; wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt." 6.2. It is also a settled principle in law that for a Court to safely convict on circumstantial evidence, the evidence must be so cogent and compelling that no rational hypothesis other than that the offence was committed by the accused could be ascertained from the facts. 6.3. The evidence adduced in the Court below was that the deceased was last seen on 9th August, 2020 with the Appellants. The 1 st Appellant in his testimony admitted having lured the deceased Jll from his home and led him to some other people on the material day. 6.4 There was evidence from PW2 that the deceased was later seen drinking alcohol in the company of the Appellants. In my view, as corrected noted by the trial judge PW2 fell in the category of witnesses whose testimony required corroboration. This is so because PW2 was apprehended and detained for over two months as a suspect in this case. He may therefore have had a motive to falsely implicate the Appellants. 6.5 In relation to the 1st Appellant, his evidence was corroborated by PW4 whose testimony was that the 1st Appellant collected the deceased from his home. Further, the 1 st Appellant admitted having lured the deceased from his home. The prosecution further adduced evidence that an axe blade measuring about 8cm by 1cm was recovered in the 1 st appellant's house. There was also evidence adduced that the deceased sustained multiple deep cuts on the head with one which measured about 8cm by 2cm. 6.6 I also note that the 1st Appellant's confession statement was admitted into evidence after a trial within a trial which the trial court found had established that it was freely and voluntarily made. However, the proceedings show that the trial Court allowed the production of the confession during the trial within a trial despite fierce objection by defence counsel. In my view, the trial Jl2 judge erred by allowing the production of the warn and caution statement during the trial within a trial. 6. 7 In any event, the 1 st Appellant's evidence that he was injured whilst in Police custody was supported by the evidence of his mother and the 2nd Appellant. At page 275 of the record of appeal, the trial Judge found that the 1st Appellant's mother was a witness with an interest to serve whose evidence required corroboration. In the case of Yokoniya Mwale v The People11, the Supreme Court said as follows on the issue: "A conviction will be safe if it is based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or the victim provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused or any other interest of their own to serve. What is key is for the Court to satisfy itself that there is no danger of false implication" (Emphasis ours} 6.8 In the present case, the trial Judge glossed over this evidence and did not give any reason for disregarding it. The fact that the 1 st Appellant told the court that she loved her and would not want to see him convicted does not demonstrate that she was biased. In our view her evidence was precise and was not exaggerated in any Jl3 way. In our view, the trial court misdirected itself when it disregarded the evidence of DW3 in the trial within a trial. We agree with the Appellants that the confession should not have been admitted. That said we have read the warned and cautioned statement which allegedly contained the confession and note that the 1 st Appellant essentially repeated what was in the confession in his evidence save for the admission that he walked away with the deceased whilst his colleagues went home. 6. 9 The evidence of the prosecution revealed odd coincidences which may be evidence. The 1 st Appellant collected the deceased from his home. He was later seen with the deceased and an axe which was suspected to be the murder weapon was recovered from his home and aligned in measurement to the wound on the deceased. In the case of Haamenda vs The People12 the Supreme Court held that odd coincidences may be deemed as corroborating evidence. Yet again in Machipisha Kombe vs The People8 it was held that: "odd coincidences constitute evidence of something more and represent additional evidence that the Court is entitled to take into account." We cannot fault the trial judge's finding that the 1 st appellant had the opportunity to commit the offence and used the said axe to hack the deceased to death. Jl4 6.10 Even without the confession, we are satisfied that there was sufficient circumstantial evidence that tied the 1 st Appellant to the offence. We are of the view that his conviction was sound. His appeal lacks merit. 6.11 In relation to the 2nd Appellant, other than the evidence of PW2, the only other evidence was that a pair of canvass shoes was recovered from his house which matched the shoe print at the scene of crime. The issue that needs to be determined is whether the recovery of the canvass shoes amounted to something more. 6.12 It was the testimony of the 2nd Appellant that the canvass shoes that left the print at the scene were common and that two other suspect who were in custody with him had them. There was also evidence that the scene was contaminated as a lot of people had gathered which suggested that the footprint could have been left by someone else who had visited the scene. This evidence was also disregarded by the trial court. 6.13 We find it hard to believe that from 6 hours, when PW8 discovered the body of the deceased, no other person passed there until the police secured the area. Although there was no evidence led on the time the police arrived at the scene, it should have taken at least 30 minutes to one hour. According to PW8, the body was by the side of road and was visible from a motor vehicle. It was Jl5 therefore probable or plausible that other people may have visited the scene before the police arrived. nd 6.14 In view of the foregoing, the evidence against the 2 Appellant was tenuous and should not have led to a conviction. The evidence of PW2 who was a suspect witness was not corroborated. In the absence of cogent circumstantial evidence, we find that the conviction of the 2nd Appellant was unsafe. We accordingly allow his appeal. 7.0 CONCLUSION 7 .1 In view of the foregoing, we uphold the conviction of the 1 st Appellant and dismiss his appeal. We hold that the conviction of the 2nd Appellant is unsafe as the prosecution did not discharge its evidential burden. The conviction is quashed and the 2nd .........___ Appellant is set at liberty forthwith. DEPUTY JUD Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE