(710)

SCZ Judgment No. 31/2014

IN THE SUPREME COURT OF ZAMBIA Appeal No. 148/2010HOLDEN AT NDOLA

(Criminal Jurisdiction)

BETWEEN:

STEVEN MUSHOKE APPELLANT

AND

THE PEOPLE RESPONDENT

Coram: Chirwa, Ag. DCJ, Chibomba and Phiri, JJS On 1st March, 2011 and 10th July, 2014.

For the Appellant: Mr. M. N. Chomba, Chief Legal Aid CounselFor the Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions

JUDGMENTPhiri, JS, delivered the Judgment of the Court

Cases referred to:

1. George Musongo vs. The People (1987) ZR 266

2. Shamwana and 7 Others vs. The People (1985) ZR 41

3. Jack Chanda and Another vs. The People SCZ Judgment No. 29 of 2002

4. Chimbini vs. The People (1973) ZR 191.

5. Benson Phiri and Sonny Mwanza vs. The People (2002) ZR 107.

J1

(711)When we heard this appeal, the Hon. Mr. Justice D. K. Chirwa

was part of the Court. He has since retired. This is therefore, a

majority judgment.

The appellant, Steven Mushoke, was charged with the

offence of Murder contrary to Section 200 of the Penal

Code, Chapter 87 of the Laws of Zambia. He was tried,

convicted and sentenced to death by the High Court sitting at

Mongu.

The particulars of the offence alleged that the appellant, on

the 28th day of April, 1994 at Mongu, in the Western Province of

the Republic of Zambia, murdered Charles Kashembe Simonwa.

The prosecution’s evidence was mainly canvassed from PW1,

Charity Njekwa Mutakela; PW2 Namakando Mutakela and PW3,

Kambimbi Momba.

Briefly, the undisputed facts were that the appellant was

known to PW1, Charity Njekwa Mutakela with whom they

previously shared a love affair that ended in 1990. On the 28th of

J2

April, 1994, at about 19.00 hours, she was at her house together

with PW2, Namakando Mutakela. Later, they both saw the

(712)

appellant, who came to their house and assaulted Mate, PW2’s

child. The child fell on the fireplace. This happened in the

presence of other people, who included PW3 and other young

men who came to the place to drink beer. After the appellant’s

assault on PW2’s son, she hit him with a piece of wood following

which he ran away.

The appellant came back later with a piece of wood with

which he wanted to assault his brother, Simakando. The boys

who were at the scene intervened and chased the appellant

away. Later, they all retired to bed. According to PW1, the

appellant, during the night, returned to her house. He called

PW1’s name twice while she and PW2 were sleeping. PW1

peeped through the door. Time was around 23.00 hours and

there was bright moonlight. She observed the events, through

moonlight and recognized the person who had come to her door

J3

as the appellant. He had taken his shirt off and was half naked.

While the appellant tampered with PW1’s door, PW3, whose house

was ten meters away, heard the noise and asked

(713)

PW1 about it. PW3 threatened to assault the appellant who,

again ran away.

At about 06.00 hours, the next morning, the body of the

deceased was discovered lying at about 30 to 50 meters away

from PW1’s house. The deceased was PW1’s cousin. Both PW1

and PW2 observed some stab wounds; and the deceased’s throat

had been cut. There was no pool of blood at the scene. PW1 and

PW2 also discovered that there were two cracks on the front door

of the house in which they slept. There were some bloodstains on

both cracks.

PW7, the Scenes of Crime Officer attended to the deceased’s

body and observed deep wounds which he narrated to the trial

J4

Court. A Police photographic album which was admitted in the

trial Court shows the stab wounds sustained. According to PW7,

when he attended to the deceased’s body, he observed that the

wounds appeared to have been cleaned up. There were no

struggle marks or bloodstains around the body. The eyes, nose

and mouth were filled with sand. He concluded that the decease

received two injuries at the back, whilst standing, walking or

running.

(714)

PW8, the Officer who investigated this case, testified that the

appellant confessed to him. He produced the appellant’s written

confession statement after a trial-within-trial.

PW5 discovered the deceased’s body early in the morning.

PW6 testified that the appellant, when confronted, confessed to

those present and to the Police. PW6 told the Court that he was

present when the appellant confessed to killing the deceased and

proceeded into his house from which he emerged with a blood-

stained home made knife which he said was the weapon he had

J5

used. According to PW6, the appellant produced the knife from

inside his house in the company of a Police Officer who had

escorted him there.

When put on his defence, the appellant elected to remain

silent, which he was perfectly entitled to do. This was after he

had testified on oath in the trial-within-a-trial. After considering

all the evidence before him, the learned trial Judge convicted the

appellant on the basis of the testimony of PW1 and PW2 and on

the basis of the appellant’s alleged confessions to PW1, PW6 and

PW8. The

(715)

learned trial Judge accepted PW1’s evidence that she was the

appellant’s girlfriend.

The learned trial Judge cautioned himself regarding the

evidence of PW1, PW2, PW3 and PW5 as witnesses with a possible

interest to serve. However, he found the evidence of these

suspect witnesses, to have been supported by the testimony of

PW4 and PW6 to the effect that the accused admitted killing the

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deceased and produced the knife which he had used. The

learned trial Judge particularly observed that PW4 and PW6 were

related to the deceased and therefore, their evidence also needed

to be treated with caution.

The trial Court accepted the evidence of PW8’s recovery of

the blood-stained knife as supporting evidence. The Court ruled

out provocation as a defence on the basis that the appellant did

not find PW1, his girlfriend, in a compromising position –

“flagrante de licto” with the deceased. The Court also found that

in any event, the injuries inflicted on the deceased, with the use

of the exhibited knife, showed that the force used was excessive

in comparison to

(716)

the nature of the provocation. Having convicted the appellant of

Murder, the Court further concluded that there were no

extenuating circumstances in this case. The appellant was

sentenced to suffer death.

J7

Dissatisfied with the conviction, the appellant has appealed

to this Court advancing three grounds of appeal. These are as

follows:

1) that the learned trial Judge erred in law and in fact in admitting a confession statement before delivering a proper Ruling after conducting a trial-within-trial.

2) that the learned trial Judge erred in law and in fact in considering the appellant’s alleged admissions which were given in breach of the Judges’ Rules.

3) in the alternative to the foregoing ground, that the learned trial Judge erred in law and in fact when he failed to find extenuating circumstances so as to impose any other sentence other than the mandatory death penalty.

In support of this appeal, Mr. Chomba, learned Counsel for

the appellant, relied on the arguments in the appellant’s Heads of

Arguments which he supplemented with oral submissions. In

support of Grounds 1 and 2, Mr. Chomba argued that the trial

Judge, in his Ruling delivered at the close of the evidence in the

(717)

J8

trial-within-a-trial, did not resolve the issues which arose from the

evidence as to the voluntariness of the confession statement; and

did not give any reasons or detailed Ruling. Learned Counsel

submitted that the burden of proof lies on the prosecution to

prove to the required standard that the confession statement was

voluntary; that the trial Court ought to have resolved why it

believed the evidence of the prosecution against that of the

appellant and give its reasons for so doing. Learned Counsel

argued that this was a misdirection.

It was further argued that the prosecution witnesses called in

the trial-within-trial, never told the trial Court that they complied

with Rule 3 of the Judges’ Rules by explaining the appellant’s

rights. This should have been the basis for the Court to use its

discretion to exclude the alleged confession statement. In

support of this submission, Mr. Chomba cited the case of

Shamwana and Others vs. The People(2). It was further

argued that the Police knew that the appellant was a Murder

suspect, but never warned and cautioned him after they found

him at his residence. They

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(718)

went ahead to interview him after which he made the admissions

in question. Counsel specifically referred to the evidence of PW4,

at page 9 of the record and PW6 at page 16 of the record.

Learned Counsel referred us to the case of George Musongo vs.

The People(1) where this Court held as follows:

“Failure on the part of a Police Officer to administer a caution constitutes impropriety in respect of which a trial Court may exercise its discretion in favour of the accused, similar failure on the part of any other person in authority (or indeed anybody else) does not necessarily amount to an impropriety as it cannot reasonably be expected that a person, other than a Police Officer, should of necessity appreciate the incentives of what should, and should not be done in such circumstances.”

Mr. Chomba invited us to consider that this is a proper case

in which the trial Court should have exercised its discretion in

favour of the appellant; and that the admission should be

disregarded and expunged from the record. Counsel further

submitted that if Grounds 1 and 2 are upheld, there is no other

J10

evidence against the appellant who must be acquitted and set at

liberty.

(719)

As indicated earlier, the third ground was argued in the

alternative to grounds 1 and 2. Learned Counsel argued that

there was evidence on the record that the appellant had been

drinking beer (page 3 lines 11 and 12). It was also on record that

the appellant was of a youthful age (aged 28 years); and that

arising from the appellant’s confession, the trial Court considered

the defence of provocation, which failed. Learned Counsel

referred us to this Court’s decision in the case of Jack Chanda

and Another vs. The People(3) where it was held that:

“Failed defence of provocation, evidence of witchcraft accusation and evidence of drinking can amount to extenuating circumstances”.

Learned Counsel submitted that when all these factors were

put together, they constitute extenuating circumstances, which

J11

the trial Court ought to have accepted in order to impose any

other sentence other than the mandatory death penalty in

accordance with Section 201(2) of the Penal Code, Chapter

87 of the Laws of Zambia. Counsel argued that failure by the

trial Court to do so was a misdirection.

(720)

On the other hand, the learned Director of Public

Prosecutions supported the appellant’s conviction. He argued

that the conviction in this case was largely dependant on a

confession which the learned trial Judge correctly admitted after

conducting a trial-within-trial.

On Ground 1, the learned Director of Public Prosecutions

argued and submitted that there was nothing irregular in the trial-

within-trial when the trial Judge indicated in his Ruling that he

would give his full reasons for admitting the confession in his

Judgment which, indeed, he did.

On the argument that the appellant’s confession was

admitted when it had been obtained in breach of the Judges’

J12

Rules, the learned Director of Public Prosecutions counter-argued

that the Judgment itself says that the confessions made at the

scene of crime were not taken into account, but the Judge took

them into account after holding the trial-within-trial.

(721)

Ground 3, which was argued in the alternative, was that

there were extenuating circumstances in this case which the

Court should have considered before imposing the death penalty.

The learned Director of Public Prosecutions argued in response

that the appellant exercised his right to remain silent and that

being the case, there was no evidence before the trial Court

which showed any failed defence that would warrant the trial

Court to come to the conclusion that there were extenuating

circumstances in this case.

We have considered the grounds of appeal, the written

Heads of Arguments and the submissions before us. We have

also considered the Judgment of the Court below. We propose to

deal with the grounds in the order they were argued. J13

The first ground alleges that the trial Judge erred in law and

in fact when he admitted the appellant’s confession statement

before delivering a proper ruling after conducting a trial-within-

trial. According to the record of proceedings, the appellant’s

statement to the Police was admitted as part of the prosecution’s

evidence after it was offered into evidence by PW8. Before the

statement was

(722)

admitted, the appellant objected to its admission on the ground

that he admitted the charge of Murder because he was beaten

before the statement was recorded. A trial-within-trial was

conducted after which the learned trial Judge admitted the

confession statement and stated that he would give the reasons

for admitting the statement later. The learned trial Judge gave

his reasons for admitting the confession statement in the

Judgment, at page J6. The reasons given were two, namely; that

the statement was recorded by the Police so soon after the

appellant was brought to the Police Station on the same day; and

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that he was satisfied that the appellant was not tortured to

confess.

We do partly agree with Mr. Chomba’s criticism of the

manner the learned trial Judge dealt with the trial-within-trial as

failure to give the reasons at the conclusion of the trial-within-trial

for admitting the confession statement there and then was a clear

misdirection. The cavalier approach to give his reasons for

admitting the confession statement in the main Judgment of the

Court was clearly a misdirection.

(723)

This Court has made a number of pronouncements

concerning the proper conduct and purpose of a trial-within-trial.

Some of the pronouncements can easily be found in the following

cases:

1. Edward Kunda vs. The People (9171) ZR 99.2. Hamfuti vs. The People (1972) ZR 240.3. Daka vs. The People (1972) ZR 70.4. Tapisha vs. The People (1973) ZR 222.5. Chigowe vs. The People (1977) ZR 21.

J15

6. Mudenda vs. The People (1981) ZR 175.

There is no definition of the term “Trial-within-Trial” in our

Criminal Procedure Code. The mode and purpose of such trials is

also not provided. In practice, trials-within-trial form part of our

practice and procedure in the administration of criminal justice.

This practice and procedure evolves from the practice of the

English Common Law which forms the foundation of our criminal

justice regime. The trial-within-trial is a trial during the main trial,

intended to determine a specific issue in the main trial. It is an

interlocutory or preliminary hearing with all the characteristics of

(724)

the main trial. It is interlocutory and preliminary in the sense that

it is heard and determined before the main trial is concluded.

In relation to confessions, the purpose of holding a trial-

within-trial in the main trial is to determine the voluntariness of a

confession statement when the issue of its admissibility is

objected to by the accused or the defence Counsel. When an J16

objection is raised, the main trial must be halted. The prosecution

then may apply for the holding of a trial-within-trial or dispense

with the confession statement altogether.

When the prosecution dispenses with the alleged confession,

then it does not form part of the evidence although it will remain

part of the witness’s statements under the summary committal

procedure in the High Court. In that event, the main trial must

resume and the trial Court is obliged to completely ignore the

alleged confession statement in deciding the case. But when the

prosecution requests for a trial-within-trial, the evidence, as in the

main trial, will be adduced regarding all the circumstances in

which

(725)

the alleged confession was obtained. The defence will also have

a right to adduce evidence.

The burden of proof rests entirely on the prosecution and the

standard of proof required is beyond reasonable doubt. In other

words, the prosecution must prove the voluntariness of the

J17

alleged confession beyond reasonable doubt. At the close of the

trial-within-trial, submissions may be made by both sides and the

Court is obliged to deliver its ruling. Once the test of

voluntariness fails, the alleged confession becomes inadmissible.

It also follows that if voluntariness of an alleged confession

statement is not in issue, a trial-within-trial is not necessary. In

that event, the question of whether the accused made or signed

any statement becomes a general issue to be decided in the main

trial on the basis of the totality of the evidence received by the

Court.

In the present case, the learned trial Judge admitted the

appellant’s alleged confession statement soon after the

appellant’s evidence in the trial-within-trial and without rendering

a formal ruling giving reasons why the alleged confession

statement was

(726)

admitted. Reasons were offered in a single paragraph of the trial

Court’s final Judgment.

J18

As we have already stated, the learned trial Judge

completely mismanaged the trial-within-trial by admitting the

confession statement without giving reasons there and then

thereby prejudicing the appellant on the alleged confession and

proceeded as if no objection had been raised. The procedure

adopted by the learned trial Judge was a misdirection and

completely contrary to the guidance given by this Court in the

afore-quoted decisions. We will return to the effects of this

misdirection later.

The second Ground of appeal attacked the trial Court’s

acceptance of the appellant’s alleged admissions which he made

in breach of the Judges’ Rules. According to the evidence on

record, the appellant’s admission was heard by PW4 and PW6

who later accompanied Police Officers who searched the

appellant’s house. PW4 and PW6 were the deceased’s uncle and

elder brother, respectively. They lived in the adjacent villages

with the appellant and the deceased. They took part in

apprehending the appellant

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(727)

and were present when the Police came to search the appellant’s

house and take the appellant away for detention at the Police

Station.

It was apparent from the evidence given by these two

witnesses that they were not Police Officers. They were ordinary

villagers of Nandopu village where the murder occurred. PW4

reported the murder to the Police and came back to the village

with the Police in the company of a medical Doctor. Clearly, PW4

and PW6 cannot be expected to have appreciated the incentives

of what should or should not be done in such circumstances when

they were in contact with the appellant after the murder was

discovered. As we held in the George Musongo case(1), failure

on the part of PW4 and PW6 to observe the Judges’ Rules cannot

amount to an impropriety. We find no merit in Ground 2 of the

appeal.

Ground 3 criticized the failure by the learned trial Judge to

find extenuating circumstances and impose any other sentence

J20

other than the mandatory death sentence. Mr. Chomba’s

argument was that there was evidence that the appellant had

drunk some

(728)

beer (page 3 of the record of appeal lines 11 and 12) and that

there was a failed defence of provocation. The record of appeal

shows that when the appellant was put on his defence, he chose

to remain silent.

Whilst we appreciate that the appellant was perfectly

entitled to his right to remain silent, we must observe that in

doing so, the appellant forfeited a perfect opportunity to properly

advance his intended defences of drunkenness or provocation;

whether those defences succeeded or failed was another matter.

It was at that stage that the appellant would have adduced the

evidence of his beer drinking spree, if any, and/or that he

suspected the deceased to have visited or flirted with his

girlfriend, and therefore, that he was provoked into doing what he

did.

J21

In the absence of any specific defence of provocation or

drunkenness, the Court below had no duty to look for an

explanation that fitted the appellant’s intended defences. This

notwithstanding, the Court below went so far as to consider the

appellant’s possible defences arising out of the confession

(729)

statement, which, as we have already stated, was wrongly

admitted. Reference to the appellant’s statement during the

trial-within-a-trial and reference to his alleged confession was an

error and should not have been resorted to in the Court’s final

judgment as the position should have simply remained that the

appellant elected to remain silent in his defence.

Coming back to the effects of the misdirection with regard to

the admission of the confession statement, we note that the

cornerstone of the Court’s judgment consisted of the totality of

the evidence received. The Court did not entirely rely on the

written confession statement, which, as we have already stated,

was a misdirection.

J22

According to the evidence on record, the appellant was well

known to the prosecution key witnesses, namely, PW1, PW2, PW3,

PW4 and PW6. PW1 and PW2 recognized the appellant during the

night. They heard his voice outside their adjacent houses and

saw him through bright moonlight. The evidence from PW1 was

that the events begun earlier in the night around 19.00 hours

when the

(730)

appellant came to PW1’s house and assaulted her nephew who

was very young. The small boy fell into the fireplace. The

appellant was confronted by PW1 and her sister who got a stick

and hit him. The appellant ran away.

He later came back with a stick, but was chased for the

second time. The appellant again came back to PW1’s house

around 23.00 hours. He called PW1’s name twice and tampered

with PW1’s front door. On this occasion, the appellant had no

shirt on and was confrontational. The appellant was again

confronted and chased by PW3. Early the next morning, the

J23

deceased’s brutally murdered body was discovered around the

area about 30 to 50 meters away from PW1’s house whose door

had been attacked by the appellant during the night. The Police

recovered the murder weapon from the appellant’s house at the

time they searched it. The recovery was witnessed by PW4 and

PW6.

This case rests on the evidence of recognition, which we

have always said is stronger than evidence of identification of a

stranger. The appellant was known and was recognized by PW1,

PW2, PW3,

(731)

PW4, PW5 and PW6. The collective evidence by these witnesses

together with the recovery of the murder weapon in the

appellant’s house, with bloodstains on it, as well as the odd

coincidence of bloodstains on the door of PW1’s house, in our

considered view, presented overwhelming evidence against the

appellant. This overwhelming evidence clearly outweighs the

misdirections which we have found. What we are saying is that

notwithstanding the trial Court’s misdirections pointed out above,

J24

our conclusion is that the appellant’s conviction was well

supported by overwhelming evidence which we have narrated.

We find no merit in this appeal and it is dismissed. We uphold the

appellant’s conviction for the murder of Charles Kashembe

Simonwa and the appellant’s sentence of death.

(RETIRED)D. K. Chirwa H. Chibomba

AG/DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE

G. S. PhiriSUPREME COURT JUDGE

J25