Clearson Chilengi and Anor v The people (Appeal No. 145,146/2021) [2023] ZMCA 294 (27 December 2023)

Key Facts

Issues

• The first ground of appeal challenged the trial court's reliance on the testimony of PW1, an aunt to the deceased, without addressing the risk of false implication. The Supreme Court in Simon Malambo Choka v. The People emphasized that suspect witnesses require corroboration beyond mere demeanor and plausibility. The appellate court found no error, noting there was no evidence of bias or motive to fabricate.
• The second ground argued the trial court erred by not making a finding on why the deceased was assaulted. The court acknowledged this omission but ruled it irrelevant to the murder/manslaughter determination given the appellants' denial of involvement. The court held the cause of the assault would not have impacted the legal analysis under the circumstances.
• The third ground contended the death sentence was excessive given the deceased's alleged theft as provocation and the inability to identify the fatal blow. The court rejected this, citing Section 22 of the Penal Code which holds all participants liable for a common unlawful purpose. The evidence showed a joint, intentional assault resulting in death, upholding the murder conviction.

Holdings

• The third ground of appeal was rejected. The court upheld the murder conviction, finding the appellants formed a common design to unlawfully assault the deceased with intent to cause grievous harm or death, as evidenced by the group's coordinated actions and the fatal outcome.
• The second ground of appeal was also dismissed. The court acknowledged the trial judge did not explicitly determine the cause of the assault but concluded such a finding was unnecessary given the appellants' denial of involvement and the sufficiency of the evidence to establish murder.
• The court found no merit in the first ground of appeal, as the trial judge properly considered the potential bias of PW1 (the deceased's aunt) and concluded there was no evidence of a motive to falsely implicate the appellants. The appellate court agreed with the trial judge's assessment.

Remedies

• The trial court's death sentences for murder were upheld by the appellate court, as no merit was found in the grounds of appeal. The conviction was based on eyewitness testimony and medical evidence confirming the deceased's death from trauma sustained during the assault.
• The Court of Appeal dismissed the appellants' appeal against their murder convictions and death sentences. The trial court's decision was affirmed, as no merit was found in the grounds of appeal. The appellants were convicted based on eyewitness testimony and medical evidence, and the court determined that the death sentence was appropriate given the circumstances of the crime.

Legal Principles

• The trial court concluded that the prosecution proved the appellants' guilt 'beyond reasonable doubt' based on direct eyewitness testimony (PW1) and corroborating evidence from the post-mortem report. The appellate court affirmed this standard was met despite challenges to the witness's credibility.
• The court applied Section 22 of the Penal Code, which deems individuals jointly liable for an offence if they form a 'common intention' to commit an unlawful act. The appellants and two others were found to have acted together with a shared purpose to assault the deceased, resulting in murder liability.
• The court addressed the burden of proof when evaluating the reliability of a suspect witness (PW1, the deceased's aunt). It emphasized that evidence from a witness with a possible interest requires corroboration or sufficient safeguards to exclude false implication, as outlined in the case of Simon Malambo Choka v. The People (1978) ZR 243.

Precedent Name

• Musipe v. The People
• Guardic Kameya Kavwana v. The People
• Simon Malambo Choka v. The People
• Kenmuir v. Hattingh

Cited Statute

• Penal Code, Chapter 87 of the Laws of Zambia
• Criminal Procedure Code, Chapter 88 of the Laws of Zambia

Judge Name

• K. Muzenga
• C. K. Makungu
• C. F. R. Mchenga

Passage Text

• 9.4 We hold the view that the trial court properly addressed its mind to the possibility of false implication and discounted it on the basis that there was no evidence on the record that they had a motive to falsely implicate the appellants.
• 9.6 We agree with Mrs. Liswaniso that indeed the trial court did not make a finding as to what exactly precipitated the assault. However, we opine that in the circumstances of this case, such a finding of fact was unimportant in determining whether the offence is murder or manslaughter.
• 9.8 From the evidence on the record, it is clear that a group of 4 people all armed with sticks were determined to discipline the deceased for reasons well known to themselves... See the case of Davison Matafwali and Another v. The People5.