DAVID ZULU v THE PEOPLE (1977) ZR 151 SCZ Judgment No.

26 of 1977

Flynote
Criminal Law - Evidence - Circumstantial evidence - Weakness of - Danger of
erroneous inference.

Headnote
The appellant was convicted of the murder of a woman in the course of a sexual
assault; the injuries found on the body suggested that she had struggled with her
assailant. The evidence established that the appellant and the deceased had been
drinking beer together at a bar and were seen leaving the bar together at about
midnight; between 0600 and 0700 hours the next day the deceased's partially
undressed body was found. The appellant was traced and when arrested was found to
have scratches on the neck and chest. He explained in evidence that the scratches
were caused by flying pieces of iron at his place of work, an explanation which was
not rebutted. The trial court without any evidence to support the finding said that the
appellant had protective clothing at work and therefore that the flying particles of iron
could not penetrate such clothing; the trial court consequently inferred that the
scratches on the appellant were sustained during the struggle with the deceased.

Held:
(i) It is a weakness peculiar to circumstantial evidence that by its very
nature it is not direct proof of a matter at issue but rather is proof of
facts not in issue but relevant to the fact in issue and from which an
inference of the fact in issue may be drawn.
(ii) It is incumbent on a trial judge that he should guard against drawing;
wrong inferences from the circumstantial evidence at his disposal
before he can feel safe to convict. The judge must be satisfied that the
circumstantial evidence has taken the case out of the realm of
conjecture so that it attains such a degree of cogency which can permit
only an inference of guilt.
(iii) The appellant's explanation was a logical one and was not rebutted,
and it was therefore an unwarranted inference that the scratches on the
appellant's body were caused in the course of committing the offence
at issue.

R O Okafor, Legal Aid Counsel, for the appellant.

Judgment
Chomba JS: delivered the judgment of the court. This is an appeal against conviction
on a charge of murder, contrary to section 200 of the Penal Code. It was established
before the learned commissioner who presided at the trial that on 8th May, 1976, the
appellant was in Chisokone Bar in Ndola in the company of the deceased, Mailes
Izeki Chisenga. The two of them were drinking beer together with a man called Sudan
Siame who was PW1 at the trial. Another witness named Boston Kapenda, who is a
nephew of the deceased, testified that when he went to Chisokone Bar and found the
deceased, it being at night he asked the deceased how she would get back home, as it
was a long way away. The deceased reportedly replied that she would be
accompanied by the appellant.
There was also evidence at the trial that at about midnight on that day, the deceased,
still in the company of the appellant, was seen leaving the bar. The next thing that
happened was that at about 0600 or 0700 hours of 9th May, 1976, her partially
undressed body was found in Kabushi Township. As a result of the investigations
carried out by the police, the appellant was located and arrested for the murder of the
deceased. The appellant denied that he had anything to do with the death of the
deceased. In his statement on arrest, he in fact gave an alibi to the effect that the only
bar he visited on the material date was Chitupi Bar, where he drank beer up to 2130
hours when he went home to sleep. It was further established that when the appellant
was arrested he was found to have scratches on the neck and chest. The learned
commissioner found as a fact, and properly so, that the deceased was killed in the
course of a sexual assault being committed on her and that the injuries found on the
body suggested that she had struggled with her assailant. He then inferred that the
scratches on the appellant were incurred during the struggle with her on the fateful
night.

It is palpably clear that the evidence available at the trial was circumstantial evidence.
It is competent for a court to convict on such evidence as it is to convict on any other
types of admissible evidence. However, there is one weakness peculiar to
circumstantial evidence; that weakness is that by its very nature circumstantial
evidence is not direct proof of a matter at issue but rather is proof of facts not in issue
but relevant to the fact in issue and from which an inference of the fact in issue may
be drawn. As Professor Nokes states in the 2nd Edition of his book "An Introduction
to Evidence" at p. 467:
"The possible defects in circumstantial evidence may . . . include not only those which
occur in direct evidence such as falsehood, bias or mistake on the part of witnesses,
but also the effect of erroneous inference."

It is therefore incumbent on a trial judge that he should guard against drawing wrong
inferences from the circumstantial evidence at his disposal before he can feel safe to
convict. The judge in our view must, in order to feel safe to convict, be satisfied that
the circumstantial evidence has taken the case out of the realm of conjecture so that it
attains such a degree of cogency which can permit only of an inference of guilt.
As to the current case, in the first place while we accept the learned commissioner's
finding that the appellant was with the deceased until midnight on the relevant date, it
is by no means easy for us to agree with the inference that the appellant was the
murderer. The time lag between midnight, when the appellant was last seen with the
deceased and the discovery of the deceased's body was at least six hours. In that time
it is quite possible that the appellant might have parted with the deceased and that
while the deceased was alone on her way back home she was attacked and killed by
unknown people.

Secondly, the learned commissioner inferred, as I have already mentioned, that the
appellant's scratches on the neck and chest evidenced his involvement in the struggle
resulting in the deceased's death. The appellant in his defence testified that the
scratches were caused by flying pieces of iron at his place of work. This was a logical
explanation of his injuries and if it was in any way doubted either the prosecution
ought to have adduced evidence in rebuttal or the court exercising its powers should
have called evidence from someone at the appellant's place of work to disprove the
appellant's claim. Neither of these two alternatives was done. The commissioner
purported to demolish this defence by stating that the appellant had protective
clothing at work and therefore that the flying particles of iron could not go through
such clothing. Nowhere in the record of the evidence at the trial is there any mention
of protective clothing and we wonder why the commissioner referred to it. In the
event it was an unwarranted inference that the scratches on the appellant's body were
caused in the course of committing the offence at issue.

For the foregoing reasons, it is our considered opinion that the circumstantial
evidence received at the trial did not succeed in taking this case out of the realm of
conjecture, and we are of the further opinion that the danger of erroneous inference on
the part of the learned commissioner has not been dispelled. We therefore find the
conviction in this case to be unsafe and unsatisfactory and consequently we quash it.
The sentence is set aside and we direct that the appellant be set at liberty forthwith.

Appeal allowed