People v When Sikazwe (3D/34/2023) (11 July 2023) – ZambiaLII

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/34/2023 FOR THE MBALA DISTRICT l,L; :1r.uc OF ZAMBIA ·1 IIE JUDICIARY HOLDEN AT MBALA ~ir~IJLW13 ~ (Criminal Jurisdiction) /\G!STRATE CLASS ti P.O. BOX 420101, MBA A BETWEEN: THE PEOPLE AND WHEN SIKAZWE Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National Prosecution Authority. For the Accused: In person JUDGMENT CASES REFERRED TO: i. MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.); ii. SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); iii. MOONGA v. THE PEOPLE (1969) Z.R. 63; iv. R v. MUCHUMA 4 N.R.L.R. 64; v. CHISHA v. THE PEOPLE (1968) ZR 26; vi. LUBENDAE V THE PEOPLE (1983) Z.R. 54 (S.C.); vii. JEREMIAH MUKONDYA V THE PEOPLE SCZ APPEAL NO. 8 OF 2019; SIMUTENDA V THE PEOPLE (1975) ZR 294; J1 of 12 viii. TEMBO V THE PEOPLE (1976) Z.R. 332, and ix. HAONGA AND OTHER V. THE PEOPLE (1976) ZR 200. STATUTE: i. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA. INTRODUCTION [1] The accused WHEN SIKAZWE stands charged with one Count of criminal trespass, contrary to section 306 (a) of the Penal Code Chapter 87 of the Laws of Zambia. [2] In brief– the accused on 10th May, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did unlawfully enter upon the premises of Northern Coffee Corporation Limited (hereinafter referred to as NCCL) with intent to commit a felony, namely to steal. [3] On 16th May, 2023, the accused person was made to stand trial, and was arraigned on the charge in question, to which the accused pled NOT GUILTY. BACKGROUND FACTS PROSECUTION’S CASE [4] The facts surrounding this matter are by and large– a conspectus of the facts established at trial. [5] On 24th May, 2023, the prosecution summoned as its first witness, PW1, KENNEDY MULENGA, a chief sentinel at Northern Coffee Corporation Limited (NCCL), who gave his testimony on oath as hereunder. [6] On 10th May, 2023, PW1 reported that he received a telephone call in the small hours of the morning at around 02:00hrs from a pump operator by the name of DANIEL SICHILYA, who indicated that he had J2 of 12 nicked a certain WHEN SIKAZWE who was criminally trespassing the grounds at NCCL. [7] Following the phone call by DANIEL SICHILYA, PW1 shlepped to the main dam at Northern Coffee Corporation Limited where the incidence occurred; arrived at around 02:37hrs, where he found the accused pinioned in the shelter. It was PW1’s testimony that the accused was arrested owing to multiple cable thefts that they had been experiencing. [8] PW1 indicated that the accused related in very broad brushstrokes that– he had been tired and emotional– an anecdote PW1 considered to be a cock-and-bull story, judging by the 11 kilometres the accused had to traverse to find himself in the place where he was apprehended. PW1 made a dock identification of the accused. [9] During cross examination it was confirmed that the accused was indeed inebriated and that when the accused was frisked it was confirmed that he did not steal anything from the premises nor was he packed with any implement capable of inflicting harm on PW1 and friend. Nothing was advanced in re-examination. [10] On 5th June, 2023, the prosecution swimmingly allied the testimony of PW1 with their second witness, PW2, a quinquagenarian, pump operator at OLAM who related as hereunder. [11] PW2 maintained that it was around 02:00hrs in the morning when he perceived from a distance a person peeping through the door where the machines are kept. PW2 related that he cast a shaft of light using his flashlight on the accused and beetled off at the accused and apprehended the same. PW2 gave the accused the third degree after arresting him, but the accused kept mum. [12] It was PW2’s position that when they further probed into the issue, the accused gave contradictory statements that, he was coming from J3 of 12 Kalala Village and later changed that he was coming from Maround Compound, which position PW2 did not considered to have been on the up and up– PW2 with the aid of his associate then pinioned the accused, as he had attempted to run away then PW1 and compatriot, a certain MODESTER SIULUTU sent for PW1. [13] PW1 pulled up on a motor bike– put PW2 through the wringer and questioned the accused concerning him having criminally trespassed NCCL and at his behest PW2 and friend kept the accused in the shelter and later consigned him to Mbala police station at around 07:00hrs where he was detaining awaiting court appearance. [14] During cross-examination the accused maintained that he had been drunk, which position PW2 unflinchingly disavowed. Nothing was advanced in re-examination. [15] The prosecution rung the curtain down with the testimony of PW3, AUBREY MWEWA, a detective constable at Mbala Police Post, who recounted as hereinunder. [16] On 18th May, 2023, at around 08:00hrs I reported on duty at the CID’s office where I was allocated a docket on criminal trespass concerning one WHEN SIKAZWE, which incident happened in the wee hours of the morning at Northern Coffee Corporation Limited. [17] PW3 acting on the same docket learnt that the accused was already in police custody. PW3 then took the accused to the CID’s office, where his rights were explained. The accused maintained to PW3 that he had been drunk at the material time. PW3 then administered a warn and caution statement, wherein the accused denied the charge. PW3 then charged the accused with the subject offence. [18] Nothing was advanced in cross and re-examination. And that marked the close of the prosecution’s case. J4 of 12 [19] At the close of the prosecution’s case, I then found the accused with a prima facie case to answer and put the same on his defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. THE DEFENCE’S CASE [20] The accused– DW1, a vicenarian, in the flower of his youth, elected to give sole evidence on oath. [21] In his defence on 5th July, 2023, he related that– on the 9th May, 2023, DW1 set out for Kalala Village in search of cultivating land for leasing. DW1, being lean and hungry, wondered around in a seemingly desultory manner combing through Kalala Village for cultivating land to rent. Thereafter– DW1 being worn-out elected to go and imbibe slugs of a local bevvy– “kachasu”in a nondescript speakeasy which he did on an empty stomach. [22] DW1 continued his search of cultivating land for rental over a bottle or two from his convive(s), and finally one of them was gracious enough to say that if he wanted land, he should come back in about two (2) weeks as there would be some parcel of land available then. [23] Relieved in part by the news, DW1 took multiple tots of the infamous “kachasu” until he was medievally drunk, and could barely put one foot in front of the other. DW1 set out for his home– alas, he fell asleep along the way on a patch of grass and when he arose, it was DW1’s testimony that he inadvertently took the route on the left and as a consequence lost his way back home, which route led him to Northern Coffee Corporation Limited grounds, where he was detained. [24] DW1 testified that at a distance he discerned where the security guards sat, and when he took a few more steps PW1 flashed a torch in his eyes and that how DW1 was apprehended at around 02:00hrs in the morning. J5 of 12 [25] DW1 told PW2 that he had come from Kalala village, but could not believe DW1’s story on account of being on the premises in question at such an ungodly hour. Further DW1 told PW2 and friend that he was drunk and that he had lost his way. And at around 07:00hrs that morning DW1 was taken to the police station. [26] During cross-examination it was established that DW1 had no lawful justification for being on the property in question, as he was a habitué of the area and knew perfectly not to be in the area without license or privilege. Nothing was advanced in redirect examination. [27] And that marked the close of the defence’s case. FACTS IN DISPUTE [28] This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: the accused person did criminally trespass the property in question; that the accused person was drunk on the night in question; that the accused came from Kalala. FACTS NOT IN DISPUTE [29] I find the following facts not to be in dispute: that the accused was arrested on NCCL premise at 02:00hrs in the small hours of the morning; that the accused person was a habitué of the area in question; that NCCL is a private property. THE LAW ESTABLISHING THE CHARGE IN CASU [30] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 306 constitute the offence of criminal trespass, reads in part that: Any person who- (a) unlawfully enters into or upon any property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; J6 of 12 (b) having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult, or annoy any such person or with intent to commit any offence; is guilty of the misdemeanour termed “criminal trespass” and is liable to imprisonment for three months …. (Emphasis mine) INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [31] In view of the foregoing– the prosecution must satisfy me with the following: (i)that the accused person did unlawfully enter the premises of Northern Coffee Corporation Limited without leave or permission being granted him; (ii) that the accused intend to commit an offence and/or annoy; (iii) that the was ample notice to prevent him from trespassing. [32] As a result, the accused is entitled to give and or call evidence or say nothing at all and if he elects to remain silent this does not in any way shift the burden from the prosecution to prove the guilt of the accused to the required standard as herein articulated. ANALYSIS OF THE LAW; FACTS AND DETERMINATION [33] From the outset, I cautioned myself that– in criminal cases the onus is squarely on the prosecution to prove their case, as per the Supreme Court’s position in re MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.), where it held inter alia that: … “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 must be beyond all reasonable doubt”. (Emphasis mine) [34] Thus, the accused plea of not guilty disputes all the ingredients of the offence charged; this was the position in re MOONGA v. THE PEOPLE (1969) Z.R. 63. Further, a plea of not guilty puts the prosecution under J7 of 12 the necessity of proving all the elements of the offence. R v. MUCHUMA 4 N.R.L.R. 64 [35] Consequently, there is no obligation on the part of the accused to prove his innocence or indeed to give a satisfactory explanation, this was the position in re CHISHA v. THE PEOPLE (1968) ZR 26. It is worth noting that this position is so, even if the explanation on the face of it seems ridiculous and pooh-pooh. [36] With that, if the accused’s case is ‘reasonably possible’, although not Probable, then a reasonable doubt exists, and the prosecution cannot be said to have discharged its burden of proof. [37] And if upon considering the evidence adduced there is reasonable doubt on the mind of the court as to the guilt of the accused, the court will return a verdict of NOT GUILTY. SALUWEMA V THE PEOPLE (1965) ZR 4 (CA). [38] At root– the intent element of the crime of criminal trespass means that the accused must be aware that he did not have permission to be on the property, or a legal right to be there. In general, this can be accomplished through a notice, i.e., visibly posted “NO TRESPASS” signs, the erection of a boundary around the premises in question, etc. [39] In essence, the tenor of the preceding position is that– if the accused (DW1) reasonably believes that the premises are open to the public, the prosecution probably cannot secure a conviction. Interestingly, in casu, it was established during trial that DW1 is a habitué of the area, who did not need to find his feet vis-à-vis the route leading to NCCL, as he was fully aware that NCCL was a private property. [40] It is worth noting at this point that, the accused did not really ward off the fact that he had criminally trespassed the area in question when the state through its witnesses– PW1, PW2 and PW3 testified, except to J8 of 12 expediently posit his criminal trespass on the fact that he was frightfully drunk, which point I will unpack anon. [41] I hold the view that, DW1 having been a habitué of the area in question, was not oblivious to the fact that NCCL is a private property and that entry without license or privilege on the property is strictly prohibited and coupled with the fact that the area is conveniently marked off and restricted from the general public accessing it at will, as that in itself serves as ample notice and or prohibition to the accused as well other potential trespassers from carelessly entering upon the NCCL property. Further– it goes without saying that, walking onto someone else’s land is the most obvious form of trespass. [42] Fortunately for DW1, criminal trespass is a misdemeanour in our jurisdiction. Therefore, when a person intentionally and without license or privilege enters someone else’s property, they open themselves up to criminal prosecution, which as has been aptly established may lead to a custodial sentence of three (3) months. [43] By way of supplementing, the Penal Code in section 38, Chapter 27 of the Laws of Zambia, talking of misdemeanours also provides for payment of fines: … “When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine or with both. (Emphasis mine) [44] Touching the hereinbefore issue of intoxication– section 13(4) of the Penal Code, chapter 87 of the Laws of Zambia, which enacts as follows: … “(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.” (Emphasis mine) J9 of 12 [45] Further, in re LUBENDAE v THE PEOPLE (1983) Z.R. 54 (S.C.) it was held that– heavy drinking, even to the extent affecting the co-ordination of reflexes insufficient in itself to raise question of intent unless the accused person's capacities were affected to the extent that he may not have been able to form the necessary intent. (Emphasis mine) [46] Further, the supreme court has in a legion of cases, i.e., in re JEREMIAH MUKONDYA v THE PEOPLE SCZ APPEAL No. 8 of 2019; SIMUTENDA V THE PEOPLE (1975) ZR 294 AND TEMBO V THE PEOPLE (1976) Z.R. 332 maintained that: … “It is not enough that the accused person was drinking beer for him to benefit from the defence of intoxication under section 13(4) of the Penal Code; there must be evidence showing that as a result of such drinking, the accused person’s capabilities were so affected that he may not have been able to form intent” … (Emphasis mine) [47] In view of the above– and in light of the accused assertion and or testimony that, he was inebriated, which position has been confirmed through the testimony of PW1 and PW3. And as a fitting non sequitur, I would like to discount PW2’s testimony on the part where he claims that DW1 was not intoxicated on that material date, as being untrue. [48] I call to aid the case of HAONGA AND OTHER V. THE PEOPLE (1976) ZR 200, where the Supreme Court stated as hereunder: where a witness has been found to be untruthful on a material point, the weight to be attached to the remainder of the evidence is reduced. (Emphasis mine) [49] Further, I hold the view that– while DW1 has vociferously testified that he had lost his way and ended up on NCCL premises– it does not necessarily follow that the accused (DW1) did not form the requisite intent to criminally trespass the premises in question, as the mere fact J10 of 12 that he was intoxicated does very little to excuse one’s culpability and or negate the fact that DW1 trespassed NCCL property. [50] More to the point– PW2 testified that DW1 attempted to flee, which is why the same was pinioned, which allegation DW1 did not dismiss as being inaccurate. The attempt to flee by DW1 would potentially cast a blight on DW1’s testimony and lead this court to credibly infer that DW1 did have a guilty mind and or the intent to criminally trespass the property in question. [51] Furthermore, it cannot be credibly argued pursuant to section 13(2) and 13(4) of the Penal Code Cap. 87 of the Laws of Zambia that, the accused did not know what he was doing as the act of attempting to flee after being apprehend by PW2 and compatriot pins on him sheer guilt. In the main– I am persuaded that giving a free pass and or carelessly allowing with impunity all arguments that– “I was drunk or intoxicated”, would make the court a hotbed of malevolence and crime. [52] It ill behoves this honourable court to legitimize all claims and contentions on intoxication, as the court should be on sentry duty– guarding against transgressors trying to walk it under the guise of intoxication, as regularizing that would be a mockery and a blot on the landscape of justice. [53] Hence, upon solemn appraisal of all the available evidence before me, I cannot without misstating decisively resolve in favour of the accused (DW1). And having meticulously weighed the evidence of the accused– I can roundly assert that– I find the pat response and or defence that– “I was drunk”, to be a miserable excuse for a defence of intoxication and not worth privileging by this court. [54] Further, I will go out on a limb and say that– while it is the preserve of the court to give consideration to defences appropriately raised by an J11 of 12 accused person– the offhand raising of the defence of intoxication should give the courts pause, so as not to grant the defence of intoxication like clockwork. [55] In the main, I find that the accused had no lawful or justifiable cause to enter upon the premises of NCCL, without so much as having any legal license or privilege. Consequently, the accused in his defence failed to, credibly discredit the prosecution’s witnesses and or evidence. [56] In the premises, I am persuaded that the state has fulfilled the requirement as per MWEWA MURONO V. THE PEOPLE (2004) Z.R. 207 (S.C.) and that the prosecution has painstakingly built an irrefragable case against the defence, and that the accused did indeed trespass the property in question. VERDICT [57] In conclusion, there is no lingering doubt that the offence was committed by none other than the accused person. [58] I find the accused person GUILTY as charged for the offence of criminal trespass, contrary to section 306 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [59] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 11TH JULY, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J12 of 12