APPEALS NOS.
Ill, 112,113,114/2000
IN THE SUPREME COURT OF ZAMBIA
HOLDEN AT LUSAKA
(CRIMINAL JURISDICTION)
JEFF MA LA LI KI Appellant
THE PEOPLE Respondent
CORAM: Ngulube, CJ, Chirwa and Chibesakunda, JJs on 2nd
April and 20th August 2002
For the 1st Appellant: In Person
For the 2nd Appellant: Nil
For the 3rd Appellant: In Person
For the 4tfl Appellant: Mr. A.C. Nkhausu, Principal Legal Aid Counsel
For the People: Mr. M. Mukelabai, Director of Public Prosecutions
JUDGMENT
Chirwa, J.S. delivered judgment of the court: -
Cases referred to: (1) R V TURNBULL [1976] 3 ALL E.R. 445
(2) KATEKA v THE PEOPLE [1977) Z.R. 36
(3) CHIMBINI v THE PEOPLE [1973] Z.R. 191
This judgment should be considered as judgment of the majority of the
court.
The original indictment involved seven accused persons but after trial
only the four appellants were found guilty and convicted on some counts. Whilst
the appeal was pending, the second appellant, JOHN KAWINA died. At the
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hearing of the appeal the 1st and 4th appellants withdrew the appeals and their
appeals were accordingly dismissed. The appeal and judgment only relates to
the 3rd appellant, JEFF MALALIKI and in this judgment he is referred to as the
appellant.
The appellant was convicted on one count of aggravated robbery,
contrary to Section 294 (1) of the Penal Code, Cap. 87 of the laws of Zambia and
was sentenced to 20 years imprisonment with hard labour with effect from 25th
February 1994, the date of his arrest. He has appealed against conviction only.
The appellant had himself put in written heads of argument in support of the
appeal and Mr. Nkausu who represented him also relied on grounds filed by the
appellant and amplified them in his oral submissions. The conviction is attached
on the identification of the appellant by the complainant in that count, Mr. Keith
Mwanza, who was PW 11 during trial which it was said was unsatisfactory and
also the reliability of the identification parade was questioned. In essence the
appeal is based on a single identifying witness.
The evidence of PW 11 was that in the evening of 21st January 1994
around 1900 hours he was driving his motor vehicle with South African
registration number OKE 148 in Bulangililo compound to go and see his girl
friend. As he was approaching the house, he observed in his rear view mirror
another motor vehicle following him, he indicated to this other vehicle to
overtake his as he turned to the gate of the house of his girl friend and he
hooted for the people to open the gate for him. As he was waiting for the gate
to open he saw one man from the vehicle that had been following him come to
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him and pointed a gun at him and was ordered to come out of the motor vehicle
and to hand over the keys. He gave away the keys and as he was with a friend,
they were ordered to lie on the ground of which they did. They were then lifted
from the ground and put at the back of his motor vehicle which was incidentally
a van. They were then driven into the bush after he showed them how to start
the vehicle. Whilst in the bush they ran out of fuel and the assailants then
started debating amongst themselves as to whether to kill them or not. The
assailants then tied a rope to the witness' vehicle and towed it to a near stream
where they stopped. Again the assailants debated whether to kill them or not.
They again decided not to kill them instead they tied their hands and legs and
abandoned them in the bush. Around 0400 hours or 0500 hours they were
rescued by charcoal burners and were told that they were not the first ones to
be left in the bush. The witness then made his way to Riverside Police Station
and reported the matter. PW11 stated that where he was robbed there was
some light and that of the people who robbed them he recognized four (4) out
of a group of 7. He recognized the 4 as he knew them before and were his
acquaintances and knew their names as Jeff, Chanda, Slim and Blacky. He
identified Jeff as the appellant and that he used to do business with him in the
Congo. He further stated that he identified the appellant at an identification
parade on 22nd February 1994. Under extensive cross-examination he told the
court that after he was robbed and reported the matter to the Police, he and
some Police Officers followed the appellant where he knew he was doing some
business in the Congo and that he could not be mistaken on identify.
The evidence of arresting officer is that on 16th April 1994 he was handed
over four (4) men from Zaire (Congo D.R.) who included the appellant and he
arrested the appellant for one count of aggravated robbery where the
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complainant was Keith Mwanza and this was after an identification parade
conducted on 22nd April 1994 by PW 15.
The evidence of PW 15 was that he conducted an identification parade on
25th April 1994 at which the appellant was one of the suspects and the appellant
was identified by Keith Mwanza. From the evidence, of this witness, he
conducted a number of identification parades involving many complainants and
suspects but at only one of 25th April 1994 was the appellant identified by Keith
Mwanza.
On the evidence as to when the identification parade was conducted at
which the appellant was identified, we agree that there is a confusion on the
prosecution side but from the evidence of the complainant, PW 11, Keith
Mwanza he attended one identification parade at which he identified the
appellant and one other person. The arresting officer stated that he arrested the
appellant on one count of aggravated robbery in which the complainant was
Keith Mwanza. Also the evidence of the officer who conducted the identification
parades, only at one parade did he have a witness Keith Mwanza identify the
appellant Accepting this confusion of the dates, one common factor comes out
that Keith Mwanza attended one parade at which he identified the appellant and
this is supported by the officer who conducted the parade.
This evidence of the date of identification parade has been made a point
in arguing this appeal, namely that if the parade was conducted on 22nd February
1994 at which Keith Mwanza identified the appellant, that was not possible as
the appellant was in Zaire (Congo D.R.) and this is also supported by the
arresting officer who stated that the appellant and three others were handed
over from Zaire (Congo D.R.) on 16th April 1994 and he arrested the appellant
after the parade conducted in April 1994. Does this confusion in date affect the
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credibility of any prosecution witness? In the circumstances of this case, we do
not think so. It could have been otherwise if the complainant attended a
number of identification parades. But here, he attended one parade and
identified the appellant. The officer who conducted a number of parades
involving a number of suspects in a number of crimes states that PW 11
identified the appellant on one parade. There is one common factor of PW 11
attending one parade and identifying the appellant.
However, this is not the end of the matter as both the appellant and The
People agree that this was a case of a single identifying witness so that even if
we disregarded the evidence of the identification parade, the prosecution case
falls or stands on the identification evidence of Keith Mwanza.
This court has stated in a number of cases that a count is competent to
convict on a single identification witness following upon the famous case of R V
TURNBULL (1) in KATEKA v THE PEOPLE (2) and the case of CHIMBINI v
THE PEOPLE (3) is more relevant to the present case.
The single identifying evidence of, PW 11, has already been referred to in
our judgment. The appellant was known to him before and they used to do
business together in the Congo. At the time of the robbery, there was some
electric light at the gate of the house where he intended visiting. The appellant
was with the robbers for a considerable time when they took him to the bush
and where they were debating whether to kill him or not and when they finally
tied him up. The witnesses further showed his observation and confidence when
he led Police Officers into Congo looking for the appellant. We agree with the
learned Director of Public Prosecutions that there was ample opportunity for the
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witness to observe the appellant. It was not a glimpsing opportunity. We are
satisfied that the possibility of an honest but mistaken identification has been
eliminated in this case. We confirm his conviction and dismiss his appeal against
the conviction. There was no appeal against sentence, we feel the sentence is
adequate considering that it was a gang aggravated robbery and the
dehumanizing experience that the witness went through of being tied and left in
the bush at night.
M. M. S. W. NGULUBE
CHIEF JUSTICE
D. K. CHIRWA
SUPREME COURTJUDGE
L.P. CHIBESAKUNDA
SUPREME COURTJUDGE
