People v Keledo Simutowe (3D/08/2023) (18 October 2023) – ZambiaLII

l IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/08/2023 REPUBLIC OF ZAMBIA FOR THE MBALA DISTRICT THE JUDICIARY fl 1E OCT 2t !~ ~ HOLDEN AT MBALA MAGISTRATE CLASS I' , (Criminal Jurisdiction) LP.O-.- B-OX- ~420~1-0 - 1 - , = l'l. - 3 = 1\::: = "A ·1 THE PEOPLE AND KELEDO SIMUTOWE Before: Hon. Deeleslie Mondoka For the State: Mr. E. Mwanza, Public Prosecutor, National Prosecution Authority. For the Accused: Mr. S. Kandeke and Ms. J. Chapinda, Messrs Legal Aid Board RULING CASES REFERRED TO: i. MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.); ii. THE PEOPLE V JAPAU [1967] Z.R. 95 4; iii. THE PEOPLE V WINTER MAKOWELA AND ROBBY TAYABUNGA [1979] Z.R. 290; iv. PENIAS TEMBO V THE PEOPLE (1980) Z.R. 218 (S.C); v. R V GALBRAITH [1981] 1.W.L.R. 1039; vi. THE PEOPLE AND THE PRINCIPAL RESIDENT MAGISTRATE EX-PARTE FAUSTIN KABWE AND AARON CHUNGU SCZ JUDGMENT APPEAL NO. 17 OF 2009; vii. HARRISON V. DEPARTMENT OF SECURITY [1997] C.O.D. 220 DC; R1 viii. R V BARKER (1974) 65 CR. APP. R.287,287, 288; ix. BENARD CHISHA V THE PEOPLE (1980) Z.R. 36 (S.C.); x. R. V DOSSI (1918) CR. APP. REP. 158; xi. REGINA V REDPATH [1962] 47 CRIM APP R 319; xii. DENNIE NKOMA V. THE PEOPLE SCZ APPEAL NO. 52 OF 2015; AND xiii. ABBOT V. REGINA (1955) 39 CR APP R 141. xiv. PETER YOTAMU HAMENDA V THE PEOPLE 1977 ZR 184; xv. KALEBU BANDA U THE PEOPLE (1977) ZR 169, AND xvi. SIPALO CIBOZU AND CHIBOZU v THE PEOPLE (1981) Z.R. 28 (S.C.). STATUTE: i. PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA. OTHER BOOKS i. BLACK’S LAW DICTIONARY, 9TH EDITION, 2009. INTRODUCTION [1] The accused stands charged with one count of defilement, contrary to section 138(1) of the Penal Code Chapter 87 of the Laws of Zambia, as read together with amendment Act No. 15 of 2005 and Act No. 2 of 2011 of the laws of Zambia. [2] The particulars of the offence are that––the accused on 4th March, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did have unlawful carnal knowledge of ESTELLA NACHILYA. [3] On 27th March, 2023, the accused was made to stand trial, and was arraigned on the charge concisely outlined in the indictment, to which the accused pled not guilty. PRELIMINARY CONSIDERATIONS LEADING UP TO THE HEREIN NOTION OF A CASE TO ANSWER [4] The accused herein claims to have been stitched up by the police owing to a trumped-up complaint that the accused had ravished a child of 7 R2 years old at a matinal hour at round about 09:00hrs––with that, the accused is facing the charge of defilement, as enacted under the provision of section 138 (1) of the Penal Code as Amended by Act No. 15 of 2005 and Act No. 2 of 2011 which is couched in the following language: … ‘any person who unlawfully and carnally knows any child commits a felony and is liable, upon conviction, to a term of imprisonment of not less than fifteen years and may be liable to imprisonment for life’ . Provided that it shall be a defence for a person charged with the offence under this section to show that the person had reasonable cause to believe, and did in fact believe, the child against whom the offence was committed was of, or above, the age of sixteen. (Emphasis added) [5] Now then, this is a ruling on case to answer––thusly, in order to prove the commission of the alleged offence, the prosecution adduced evidence from four (4) witnesses. At the close of the prosecution's case, I am enjoined by the mandatory provisions of Sections 206 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia to determine whether or not a prima facie case has been established to require the accused make his defence. Section 206 of the Criminal Procedure Code, provides that: “If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case, and shall forthwith acquit him.”. (Emphasis supplied) [6] The above provision speaks clearly that, the determination I must now make is not dependant on the defence making a submission of no case R3 to answer. This position was amplified by the Supreme Court in the case of MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.) when it held as follows: “The application of Section 206 and 291 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia does not depend on the defence, making a no case to answer submission. The Court has of its own motion to consider whether a prima facie case has been made out”. (Emphasis mine) [7] In view of the above, I must observe from the outset that––I am indebted to defence counsel for their concise submissions on no case to answer. [8] With the foregoing as a fitting bedrock––the prosecution must with certainty establish the hereinunder ingredients: i. That the accused herein had carnal knowledge of a minor namely ESTELLA NACHILYA; ii. That the said ESTELLA NACHILYA was below the age of 16 years at the material time [9] Conveniently, BLACK’S LAW DICTIONARY, 9TH EDITION, 2009 defines establish as, to prove; to convince. (Emphasis mine) CONDITIONS FOR GRANTING A NO CASE SUBMISSION [10] When a no case submission is made it is incumbent on the court to take stock of the submission including facts and evidence so far presented and inquire into whether the facts and evidence as presented by the prosecution when viewed in the most reasonable manner can sustain a finding of guilty. [11] Following from the same, the court is enjoined to carry out the task of teasing out the truth by doing the following: R4 (a) Firstly, inquire into whether the prosecution’s evidence supports a finding of guilty if accepted and taken as its highest and strongest? (b) Secondly, whether the facts and evidence are: tenuous, inherently weak, or vague? (c) Lastly, ask whether the evidence is inherently incredible, manifestly self-contradictory, or disorderly? [12] Alternatively, the court may restrict itself to the following considerations in ascertain the herein idea of no case to answer, which considerations include: i. Whether an essential ingredient or constituent aspect of the offence charged was proved by the prosecution; ii. Whether there is evidence linking the defendant with the commission of the offence charged; iii. Whether the evidence led by the prosecution so far is one by which a court or tribunal could reasonably rely on it to convict the defendant, and iv. Any other ground or ground by which the court may find that a prima facie case has not been made out against the defendant requiring him to answer. [13] The general view when it comes to (no) case to answer is that––an examination of the criteria listed above will suggest that a trial court is to always be guided by the standard of a ‘prima facie case’ being established by the prosecution and not that the evidence tendered by the prosecution against the defendant must be sufficient to justify a conviction. Neither is the court to find at this stage that the prosecution has established the ingredients of the offence beyond reasonable doubt, and to establish that on the face of the facts and evidence the defendant has a case to answer. R5 [14] The parochial defining of the expression “prima facie” according to various English Dictionaries, among many others is rendered as––on its first appearance; by first instance; at first sight; at first view; on its face; the first flush; and from a first impression1. To boot, the Latin maxim ‘prima facie’, means that on the face of the facts and evidence so far presented and in line with the legal and evidential burden, the prosecution has at this stage presented minimal evidence against the defendant. [15] And for good measure, BLACK’S LAW DICTIONARY, 9TH EDITION, 2009 meticulously defines prima facie in the following terms: (i) at first sight; on first appearance but subject to further evidence or information; or (ii) sufficient to establish a fact or raise a presumption unless disproved or rebutted. The herein definition will be adverted to anon. (Emphasis supplied) [16] I reminded myself that the general approach to be followed where a submission of ‘no case to answer’ has been made was described by Lord Lane in R V GALBRAITH [1981] 1.W.L.R. 10392 where he said: - i. If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. ii. The difficulty arises where there is some evidence but it is of a tenuous nature for example because of inherent weakness or vagueness or because it is inconsistent with other evidence: a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such 1 THE PEOPLE AND THE PRINCIPAL RESIDENT MAGISTRATE EX-PARTE FAUSTIN KABWE AND AARON CHUNGU SCZ JUDGMENT APPEAL NO. 17 OF 2009 2 MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.) R6 that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law be borderline cases. They can safely be left to the discretion to the judge”. (Emphasis mine) [17] On the whole––where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the magistrate should allow the matter to be tried by the law. [18] Although the decision in R V GALBRAITH cited above made references to the conclusions that may be arrived at by the jury in no case submission, which position the Supreme Court of Zambia sympathized with in re MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.), I will go out on a limb here and maintain that––the case herein cited is a foreign decision made in an environment where the jury procedure is applied. [19] And at the risk of sounding pedantic––in Zambia, however the adjudicatory functions of a judge and or magistrate enable him to R7 make both facts and law in a trial and as such the judge has power to arrive at the same conclusions as a jury would have. [20] The further implication of a submission of no case to answer is that where the court finds reasons to uphold the submission, then the charges are dismissed and the defendant acquitted3 without the necessity of hearing his evidence. But where the submission is rejected, the trial continues and the defendant is called upon to present his defence by leading evidence in proof of his defence. RULING ON NO CASE SUBMISSION AND ITS EFFECT [21] A magistrate is enjoined to deliver a ruling after taking arguments from the defence and prosecution on the no case submission. He can either uphold it or discharge it. When a judge upholds a no case submission it means the accused has no case to answer. [22] In re PENIAS TEMBO V THE PEOPLE (1980) Z.R. 218 (S.C), wherein it was held inter alia that: “It is mandatory for a court to acquit an accused at the close of the prosecution case if the facts do not support the case against him, and no evidence led, thereafter, can remedy the deficiency in the prosecution evidence”. [23] In effect, it marks the end of a criminal proceeding before the trial magistrate––the accused is therefore acquitted. The decision to uphold the no case submission is the final decision4 and the magistrate is 3 PENIAS TEMBO V THE PEOPLE (1980) Z.R. 218 (S.C) 4 THE PEOPLE V THE PRINCIPAL RESIDENT MAGISTRATE, EX PARTE FAUSTIN KABWE AND AARON CHUNGU HPA 21 OF 2011, wherein the apex court observed that: In our considered view, a finding of a case to answer is based on the Courts’ feelings or impressions and appearance of the evidence. But above all, the finding of a prima facie case is not a final verdict. In the case of HARRISON V. DEPARTMENT OF SECURITY [1997] C.O.D. 220 DC (Also cited in Archbold page 407, 1999 ed), the Court stated: R8 expected to deliver a detailed ruling giving reasons for his decision because after his decision upholding this submission, the court becomes functus officio. However, where the magistrate overrules a no case submission, it means the accused has a case to answer and the magistrate is required to carry on with the case. [24] The trial magistrate should not fetter his discretion by ruling on the entire case, instead his ruling should be brief and should only cover the no case submission. STANDARD OF PROOF (NO CASE SUBMISSION) [25] On a submission of ‘no case to answer’ the magistrate must be satisfied that a ‘prima facie5’ case has been made out against the defendant. The judge does not have to find at this stage that the prosecution has established the ingredients of the offence beyond a reasonable doubt. To establish a prima facie case, the prosecution should offer credible evidence in support of each element of the crime. [26] In this regard, however, in considering the approach which the judge should follow when faced with a submission of no case to answer, the learned authors of BLACKSTONE’S CRIMINAL PRACTISE 2010 AT D15.56 proposed this: “Magistrates are not obliged to give reasons for rejecting a submission of no case to answer”. We agree with this proposition of the law because a finding of a case to answer is not a final verdict. However, a finding of no case to answer is a final verdict and therefore a Magistrate would be required and obliged to give reasons. 5 MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.), when it held as follows: “the application of Section 206 and 291 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia does not depend on the defence, making a no case to answer submission. The Court has of its own motion to consider whether a prima facie case has been made out”. R9 “If, however, the evidence is so weak that no reasonable jury properly directed could convict on it, a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the court has shown to be of doubtful value. The question of whether a witness is lying is nearly always one for the jury, but there may be exceptional cases (such as SHIPPEY [1988] CRIM LR 767) where the inconsistencies are so great that any reasonable tribunal would be forced to the conclusion that the witness is untruthful, and that it would not be proper for the case to proceed on that evidence alone.” (Emphasis added) I NOW TURN TO CONSIDER WHETHER THERE HAS BEEN EVIDENCE TO PROVE THE ESSENTIAL ELEMENTS OF THE ALLEGED OFFENSE [27] I have conscientiously assessed the prosecution’s evidence deployed through its four (4) witnesses on: 21st July, 2023; 15th July, 2023, and 12th September, 2023, consecutively concerning the alleged charge of defilement which the accused herein claimed was unjustly pinned on him. [28] For what it’s worth––PW1 (the prosecutrix herein) testified that “stupid things” were done to her, without so much of a lowdown as to the nature of the stupid things in question. And after her ordeal she proceeded to the field to harvest some maize with PW2 in tow, and to pick some fire wood. [29] Curiously, there was nothing put forward with a whiff of distress and or pain made manifest by the minor PW1 during the said menial works. PW1, PW2 and PW3 never categorically expressed or dropped a hint before this honourable court on how discomforted PW1 was and R10 whether or not she experienced any virginal pains, nor did she manifest winces associated with the said agony. [30] In allying her testimony with that of PW1––PW2 indicated that she did indeed go and collect some maize from the field with PW1 in tandem and did pick firewood together as well. Prior to which, PW2 maintained that the child, PW1 was crying when PW2 went to fetch an axe at the accused’s house––she testified that PW1, did not inform PW2 as to what the matter was until later. [31] It was PW2’s testimony that PW1 was only examined by her grandmother PW3, in the afternoon around 14:00hrs, after being told about the fact that the accused undressed her and did “bad manners” with her and dressed her up. [32] The prosecution braced the testimonies of PW1 and PW2 with that of PW3, who indicated that she was summoned by PW2 to examine her granddaughter, who was suspected to have been defiled by the accuse herein. PW3 observed that when she examined the prosecutrix she discerned with amazement at the ‘gaping hole’ on PW1’s virginal region, which according to her was consistent with being sexually abused. [33] Finally, the arresting officer, PW4 rung down the curtain on the prosecution’s case. PW4 indicated that when he received the docket of male, KELEDO SIMUTOWE, who was alleged to have defiled a minor contrary to section 138 of the Penal Code chapter 87 of the Laws of Zambia. it was PW4’s testimony that he visited Mwamba Village, seeing as the accused and the witnesses herein are autochthons of the said village. After investigating the scene, PW4 took pictures of the same. And when he retraced his steps to the office, he then made up his mind to officially charge the same with the subject offence. R11 [34] What was even off the wall about all the evidence herein tendered was the medical report, which medical report was dated the 6th day of March, 2023, and expressed in less than esoteric terms as hereunder: EXTERNAL EXAMINATION i. CONDITION AND APPEARANCE : NORMAL ii. INNER GARMENTS : NORMAL iii. BODY INJURIES : NORMAL INTERNAL INJURIES i. GENITAL INJURIES : NIL ii. RECTUM SWAB : NIL FURTHER INJURIES i. BREAST INJURIES : NIL ii. HYMEN EXAM : BROKEN iii. VIRGINA : NORMAL iv. FLUID DISCHARGE : NIL v. RECTUM EXAM : NORMAL vi. UTERUS : NORMAL [35] Curiously, the prosecution did not call a medical practitioner to elucidate, if necessary, on the seemingly odd medical report. I NOW TURN TO CONSIDER WHETHER THE EVIDENCE ADDUCED BY THE PROSECUTION HAS BEEN SO DISCREDITED THAT NO REASONABLE TRIBUNAL COULD SAFELY CONVICT ON IT [36] The evidence of the prosecution turns on the medical report, no less– whose report form was marked as “PI”. [37] When put through the mill of cross-examination, PW1 went down the tubes when asked on the exact nature of the “stupid things” and or “bad manners” alleged to have been done to her, either by way of visual aid or physical indication or gesticulation. PW1 arrantly failed to R12 pin point as to where the abuse was occasioned even after the state drafted a human like sketch as a visual aid for purposes of aiding her to show where the abuse was occasioned. More to the point she could not roundly tell the court that she experienced pain, bruising or any type of discomfort on her “vulva” region. [38] The defence made accusatory inquiry into whether PW2 put PW1 up to prevaricate about the issue as the same would not be an unusual development6. [39] PW2 when put through the wringer of cross-examination disavowed to recognise that PW1 was in the company of “MWALETI” at the time of the alleged incidence. And that there was nary an intimation of discomfiture evinced in PW1’s gait nor was it etched on her face the entire time that they were at the maize field and during the fetching of firewood. Furthermore, it was tacitly established that the relationship between the accused and PW2 and family was a trifle volatile and incendiary, and that that would have been the mainspring of fitting PW1 up for the charge in question. [40] PW2, made a resolute inference that something had indeed cast a shadow over the prosecutrix, PW1, which according to PW2 would account for––PW1 dissolving into tears7 when PW2 found her at the accused’s premises. 6 BENARD CHISHA v THE PEOPLE (1980) Z.R. 36 (S.C.), wherein it was held inter alia that: although children may be less likely to be fraudulent or acting from improper motives than adults yet they are, as Atkin, J., observed in R. V DOSSI (1918) CR. APP. R EP. 158, at, p. 161: …“Possibly more under the influence of third persons - sometimes their parents - than are adults, and they are apt to allow their imaginations to run away with them and to invent untrue stories.” 7 In re REGINA V REDPATH [1962] 47 CRIM APP R 319, it was observed that––evidence as to the distress of a complainant may not carry probative weight if it is only part and parcel of the making of a complaint. However, it may properly be afforded weight if the complainant is unaware of being observed, and if the distress is exhibited at the time of, or shortly after, the offence itself, in R13 [41] PW3 under the heat of cross-examination did confirm that she did not see the accused defile PW1. It was also PW3’s testimony that there was no discernible distress coming through from PW1 inkling the fact that she had been sexually abused before, during or after her examination of PW1. [42] When the prosecution’s 4th witness, PW4 gave his testimony, the defence got him over the barrel––PW1 acknowledged the fact that he was in virgin territory when it comes to sexual offences. Further, it was PW4’s testimony that he only warned and cautioned the accused after interviewing and getting a statement from the accused. The defence then thunderously argued that there was a dereliction of duty8 on the part of PW4, being a person in authority. [43] Interestingly, in PW1, PW2 and PW4’s testimony, there was no intimation as to any visible blood stains or traces of sperm seen on or found on PW1’s person or her clothes. [44] During cross-examination it was unimpeachably established that PW4’s investigation and conduct of the matter was littered with many a dereliction of duty, i.e., PW1 did not through his investigation eliminate the fact that there where other male persons related to the prosecutrix who could have defiled PW1, but instead his investigation was merely a seal of approval that the accused herein committed the circumstances which appear to implicate the accused. Which position was echoed in re DENNIE NKOMA V. THE PEOPLE SCZ APPEAL NO. 52 OF 2015, intimated that: while the complainant’s distressed condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, weight, if any weight to the evidence because it is all part and parcel of the complaint. 8 PETER YOTAMU HAMENDA V THE PEOPLE 1977 ZR 184, where it was held in the vicinity of: that failure to investigate amounted to a dereliction of duty, which must operate in favour of the accused. R14 subject offence; PW4 did not adduce any statements inculpating the accused throughout the course of his investigation before this court9. [45] And touching the issue of the medical report dated the 6th day of March, 2023, it was argued in not so many words that the report in question was a sorry excuse for empirical evidence. Why? Well, the long and short of it is that, the said medical report shows a stark dissonance between what the examination shows and what the medical practitioner’s final finding was, which finding indicates that the said examination was consistent with defilement10. See paragraph 34 for context. IN THE FANAL ANALYSIS [46] I have considered the evidence before me and I have taken into account submissions and arguments, deployed by the prosecution and counsel for the defendant, and I hasten to commend both parties for their industry. [47] At this point the lingering question is––has the prosecution thus far established a prima facie case of defilement against the accused person? [48] It is worth noting that adjudicators at both the senior and junior bench have inherited, a long settled and established position as to when a submission of no case to answer may be properly made and upheld. 9 KALEBU BANDA U THE PEOPLE (1977) ZR 169; where it was held that: where evidence available only to the police is not placed before the Court, it must be assumed that had it been produced, it would have been favourable to the accused. 10 SIPALO CIBOZU AND CHIBOZU v THE PEOPLE (1981) Z.R. 28 (S.C.), it was inter alia that: Medical reports usually require explanation not only of the terms used but also of the conclusions to be drawn from the facts and opinions stated in the report. It is therefore highly desirable for the person who carried out the examination in question and prepared the report to give verbal evidence. R15 In re THE PEOPLE V JAPAU [1967] Z.R. 95 4, wherein Evans J, as he then was, held as follows: “There is a case to answer if the prosecution's evidence is such that a reasonable tribunal might convict upon it if no explanation were offered by the defence. A submission of no case to answer may properly be upheld if an essential element of the alleged offence has not been proved or when the prosecution evidence has been so discredited by cross examination or is so manifestly unreliable, that no reasonable tribunal can safely convict on it. (Emphasis supplied) [49] Equally, Muwo J, as he then was, in re THE PEOPLE V WINTER MAKOWELA AND ROBBY TAYABUNGA [1979] Z.R. 290 came to the same conclusion when he held as hereunder that: “A submission of no case to answer may properly be upheld if an essential element of the alleged offence has not been proved or when the prosecution evidence has been so discredited by cross examination or is so manifestly unreliable, that no reasonable tribunal can safely convict on it.” (Emphasis added) [50] Further, the Supreme Court of our land put a stamp of authority on that position of the law when it reiterated in the case of MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.) as follows: “In criminal cases, the rule is that the legal burden of proving every element of the offence charged and consequently the guilt of the Accused lies from beginning to end on the prosecution. The standard of proof is high, its proof beyond reasonable doubt... A submission of no case to answer may properly be made and upheld when there has been no evidence to prove the essential element of the alleged offence and when the evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it. If at the close of the evidence in support of the charge, it R16 appears to the Court that a case is not made out against the Accused person sufficiently to require him to make a defence, the Court shall dismiss the case, and shall forthwith acquit him.” (Emphasis mine) [51] And as a junior court––I am under the thumb and shackles of the doctrine of judicial precedence and stare decisis of which I cannot extricate myself from. Thusly––this is just the ticket I need to appositely adjudge to the herein matter. [52] Advisedly, I hold the view that a prima facie case is made out whenever the prosecution adduces evidence establishing an essential ingredient or essential ingredients of the offence charged. The said evidence must be of such a nature that it tends to inculpate the accused one way or the other in such a manner that a reasonable tribunal might convict upon it even where the Accused offers nothing in defence. For how else might a reasonable tribunal convict, unless the evidence implicates. [53] Thus, the converse is true that––where the evidence adduced by the prosecution does not incriminate the accused person one way or the other, then in that instance a prima facie case has not been made out. [54] And as a fitting non sequitur, I must say at this point that––there is a bias that goes with being accused or whispered as having defiled a child. Why? Well, the public is prevailingly antsy and overly squeamish about the issue and thus will at a glance vilify all persons associated with such a damning signature, as people invariably take the allegation as read! I must with alacrity mention that, this vacillating; contemporary opinion espoused by the common man of besmirching before researching––which opinion is informed by whispering campaigns and the mood of the moment has the potential to irreparably gouge the colourful tapestry we call––‘the rule of law’. R17 [55] In view of the foregoing––permit me in lieu of chewing the fat to assert with recherché words that––the morasses of dealing with a case wherein the accused person is altogether condemned as a veritable defiler; condemned to the gallows, is not wasted on me! It is writ large that there is a wealth of societal pressure, even on the bench in respect of sexual offences, i.e., defilement, this is in part that––many get a kick out of and or are in the tendentious business that thrives on schadenfreude. [56] Thus, on the totality of the evidence before me––I find that this case against the accused is stuck deeply in the realm of conjecture, and that the evidence adduced by the prosecution’s witnesses exonerates rather than implicate the accused of the charge levelled against him. I agree with the defence that, the prosecution has therefore failed to establish a prima facie case of defilement against the accused person sufficiently to require him to be put on his defence. [57] I bring to aid BLACK’S LAW DICTIONARY, 9TH EDITION, 2009, wherein prima facie is defined in the following terms: (i) at first sight; on first appearance but subject to further evidence or information; or (ii) sufficient to establish a fact or raise a presumption unless disproved or rebutted. Conveniently, BLACK’S LAW DICTIONARY, 9TH EDITION, 2009 defines establish as, to prove; to convince. (Emphasis mine) [58] Given the nature of the evidence adduced by PW2 through to PW4 and considering the out of whack medical report herein––I have no slightest hesitation in finding that the defence has aptly expostulated with the exiguous and tenuous evidence herein adduced by the prosecution, which evidence turns on the medical report dated 6th March, 2023, and that the defence has made out its case as admonished by the Supreme Court in re THE PEOPLE V JAPAU [1967] R18 Z.R. 95 4 and THE PEOPLE V WINTER MAKOWELA AND ROBBY TAYABUNGA [1979] Z.R. 290, wherein it held inter alia that: A submission of no case to answer may properly be upheld if an essential element of the alleged offence has not been proved or when the prosecution evidence has been so discredited by cross examination or is so manifestly unreliable, that no reasonable tribunal can safely convict on it. (Emphasis supplied) [59] To iterate, I find that the material evidence in this case including but not limited to the medical report form has been discredited during crossexamination. The court further finds that the medical report form has been shown to be so manifestly unreliable that no reasonable tribunal could safely convict on it. [60] This court will not be pressed into service of business calculated to hype schadenfreude––with that said––the inevitable corollary of my finding is that the accused herein is acquitted11 forthwith in accordance with section 206 of the Criminal Procedure Code, Chapter 88 of the laws of Zambia. [61] IRA within 14 days. RULING DELIVERED AT MBALA IN OPEN COURT ON 16TH OCTOBER, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE 11 In re ABBOT V. REGINA (1955) 39 CR APP R 141 at page 156 Lord Chief Justice Goddard said: … “A man against whom there is no prima facie case at the close of the case for the prosecution is entitled to an acquittal...” R19