Monze v People (SCZ 9 53 of 2016) [2017] ZMSC 44 (12 May 2017)

L Ji IN THE SUPREME COURT OF ZAMBIA (cid:9) HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ/9/53/2016 BETWEEN: DAVID MONZE (cid:9) AND THE PEOPLE (cid:9) APPELLANT RESPONDENTS Coram: Muyovwe, Kajimanga and Chinyama, JJJS on 10' January, 2017 and 12" May 2017 FOR THE APPELLANT: (cid:9) Mr. A. Ngulube, Director of Legal Aid Board FOR THE RESPONDENT: Mrs. 12. M. Khuzwayo, Chief State Advocate, National Prosecutions Authority JUDGMENT KAJIMANGA, JS, delivered the judgment of the court. Cases referred to: Saluwema v The People (1965) ZR 5 (CA) Simusokwe v The People (2002) ZR 63 (SC) J2 The appellant was tried and convicted on a charge of murder. The particulars allege that on 2nd September, 2015 at Lusaka, the appellant murdered Clifford Hamwata (the deceased). The prosecution evidence as narrated by four witnesses disclosed that on 22nd September, 2015 around 11.30 hours, Kanyama Siakalima (PW1) saw the appellant at the appellant's shop quarrelling with the deceased who was his father-in-law. As he was leaving he heard the appellant telling the deceased that he did not want him at his premises because he was the one who had caused his wife to divorce him. He also heard him threaten the deceased that he would kill him. When he looked back he saw the appellant pick an iron bar and hit the deceased on the forehead. The deceased fell to the ground. He ran to where the appellant's brother (PW3) was and told him what had transpired. Later in the afternoon, he accompanied Amon Katela (PW2), Robert Monze (PW3) and two police officers, among others, to the appellant's shop. They found the deceased's badly battered body lying in a pool of blood in the appellant's shop. The evidence also disclosed that at the scene, there were marks of blood stains showing that a person was dragged into J3 the shop. The appellant was not at the shop and the deceased's body was taken to the mortuary. In his defence, the appellant stated that the deceased was his father-in-law. On 22nd September, 2015 he was with PW2 when he opened his shop around 06.00 hours and was drinking alcohol (spirits). Around 11.00 hours he left the shop for his house when he met PW1 who told him that there were people at his shop. When he came back and entered the shop, he found the deceased seated on the bench. He greeted the deceased who told him that he had come to collect his money which he gave his daughter, the appellant's former wife, for the talk time she used to sell from his shop. The appellant refused to give him the money. The deceased then told the appellant that he had information that he still visited his daughter and disturbed her and that he was not worthy to be with her. The appellant further said that the deceased went on to tell the appellant that all the things that were in the shop were from his money and he demanded to be reimbursed. The deceased started pushing the appellant while demanding that he should give him his money. The deceased then got an iron bar and hit him below his ankle and on his shoulder. As he was trying to run outside the shop he saw the deceased coming with the iron bar. He got it from him and hit him on his forehead. The deceased fell down and the appellant ran to Rufunsa police station and that is how he was apprehended. He was later informed that the deceased had died. In her judgment, the learned trial judge found that the deceased died at the appellant's shop; that prior to his demise he was involved in an altercation with the appellant after which he was found lying dead on the floor of the appellant's shop with severe head injuries; that an axe with blood stains was found next to the deceased's body; and that the nature of the brutal attack led to the inevitable conclusion that the intention of the appellant was to kill the deceased, or at least cause him grievous bodily harm. In the opinion of the learned trial judge, the appellant locked the deceased in his shop and fled upon realising that the deceased was lifeless. The learned trial judge also found that the defences of provocation and self-defence advanced by the learned defence counsel were, on the facts of this case, not available to the appellant. She consequently found the appellant guilty of murder and convicted him accordingly. The appellant now appeals against the conviction and sentence, advancing one ground of appeal namely, that the trial court erred in law by convicting him of murder and imposing a sentence of death. At the hearing of the appeal, Mr. Ngulube, the learned Director of Legal Aid relied on the appellant's written heads of argument. He submitted that although there is no dispute that the appellant caused the death of the deceased, he did so without the requisite malice aforethought and was, therefore, not liable for murder but manslaughter. It was his submission that the evidence was clear that the appellant and the deceased had differences surrounding the dissolution of the marriage of the appellant and his wife who was the deceased's daughter, which the appellant blamed on the deceased; that there was tension between the appellant and the deceased; that on the fateful day the deceased went to the appellant's shop; that it was not the appellant who went to the deceased looking for a fight or intending to cause trouble; that the appellant and the deceased quarrelled as witnessed by PW1; that PW1 saw the appellant strike J6 the deceased with an iron bar; and that the appellant testified that he was provoked and struck by the deceased and then retaliated. Mr. Ngulube contended that in view of the foregoing facts, the trial court erred in law to find the appellant guilty of murder. He argued that the appellant should have been found guilty of manslaughter and relied on the case of Saluwema v The People' where the Court of Appeal stated 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." Mr. Ngulube submitted that the appellant's case was reasonably possible and as such the prosecution failed to prove murder but proved manslaughter. Relying on the case of Simusokwe v The People', the learned counsel argued, in the alternative, that where self-defence and, or provocation fails, there is extenuation and the guilty person gets a custodial sentence and not the death penalty. He accordingly urged us to allow the appeal, quash the conviction of murder, set aside the sentence and substitute it with manslaughter and a lenient custodial sentence. Alternatively, he implored us to J7 maintain the conviction of murder but find extenuation and impose a custodial sentence upon setting aside the death sentence. At the hearing, Mrs Khuzwayo the learned Chief State Advocate was granted leave to file the respondent's heads of argument out of time, which she entirely relied on. In response to the appellant's heads of argument, Mrs. Khuzwayo submitted that the lower court did not err in either convicting or sentencing the appellant and, therefore, supported his conviction and sentence. She submitted that, from the record it is clear that the appellant caused the death of the deceased and the only issue for determination by the lower court was whether the appellant had the requisite malice aforethought at the time of performing the actus reas That from its analysis of the evidence, the lower court properly addressed itself to the law relating to malice aforethought and aptly convicted the appellant; and that the prosecution did not fail to discharge its legal burden of proving the case against the appellant as required by section 204 of the Penal Code. The learned counsel contended that from the evidence on record, it was clear that the appellant intended to kill the deceased J8 and was indifferent as to whether his conduct would lead to the death or cause grievous harm to the deceased. She submitted that as properly found by the trial judge, the evidence of PW1 that before he saw the appellant hit the deceased he heard him say that he would kill him, was not challenged by the appellant in cross-examination. According to the learned counsel, this threat qualifies as an intention to kill. Considering the totality of the case, counsel contended, the appellant could not have uttered those words had he not formed the necessary mens rea. It was her submission that in terms of the appellant's indifference as to whether death or grievous harm would be occasioned by his conduct, it goes without saying that the appellant who was aged 28 years had knowledge that inflicting the sort of injuries on someone as revealed by the postmortem report, would lead either to their death or grievous harm. On the appellant's argument that he was provoked by the deceased and should, therefore, benefit from the defence of provocation as provided for under section 205 of the Penal Code, the learned counsel submitted that as rightly found by the learned trial judge, the appellant could not benefit from this defence as his retaliation was not proportionate to the act which he alleges provoked him. She further contended that if the appellant's version is accepted as to what actually transpired, this would still not entitle him to benefit from section 205 of the Penal Code in that, being pushed and hit on the shoulder and ankle is not proportionate to the crushing of the brain arising from multiple chop wounds of the head. It was her submission that the absence of injuries on the appellant's body further fortifies his failure to prove that the retaliation was proportionate to the provoking act. According to the learned counsel, the force the appellant used was excessive and he cannot, therefore, benefit from the defence of provocation. Regarding the appellant's alternative submission that a failed defence of either self-defence or provocation qualifies as an extenuating circumstance thereby entitling a convict to a non-capital punishment, Mrs. Khuzwayo submitted that the case of Simusokwe vs The People relied on by the appellant is distinguishable from the facts of this case. She contended that in that case the parties were in an intimate relationship which is not the case in this matter. We were, in this regard, referred to a passage in the judgment of that case at page 65, lines 2-3 where this court stated that: "However, we accept that a failed defence of provocation nonetheless affords extenuation for the murder charge. The intimate relationship and the alleged infidelity which led to the assault were therefore an extenuating circumstance." The learned counsel submitted that from the above excerpt, a failed defence of provocation does not in itself qualify as extenuation; there must be something more in the facts of a case which qualify as extenuation. Further, that while in the Simusokwe case the intimate relationship between the parties and the infidelity were considered to be extenuating circumstances, a perusal of the facts in this case does not establish anything which would qualify as an extenuation. We were accordingly urged to disregard the appellant's submission that he is entitled to a non-capital punishment on the basis of the Simusokwe case. It was further submitted that in the light of the overwhelming evidence establishing malice aforethought, the appellant's explanation cannot reasonably be possible. We were, therefore, ill urged to confirm the conviction and the sentence imposed on the appellant and accordingly dismiss the appeal. We have considered the evidence in the court below, the judgment appealed against and the submissions by the learned counsel for the parties. Counsel for both parties acknowledge that there is no dispute that the appellant caused the death of the deceased. The only issue for determination is whether the appellant had the requisite malice aforethought at the time of causing the deceased's death. According to the learned counsel for the appellant, the appellant caused the death of the deceased without the requisite malice aforethought and, therefore, he should not have been found guilty of murder but manslaughter. Counsel's argument is on the basis that the appellant was provoked by the deceased and therefore acted in self-defence. He also relied on the Saluwema case in advancing the argument that the appellant should have been found guilty of manslaughter as the prosecution failed to prove murder. The learned counsel for the respondent, however, contended that the appellant was indifferent as to whether his conduct would cause death or J12 grievous bodily harm. That the appellant who is of full age knew that inflicting the sort of injuries on someone as revealed by the post- mortem report would lead either to their death or grievous bodily harm. Further, that the threat by the appellant that he would kill the deceased denotes an intention to kill. The unchallenged evidence of PW1 was that he saw the appellant at his shop quarrelling with the deceased; that as he was leaving he heard the appellant threatening that he would kill the deceased; and that when he looked back he saw the appellant pick an iron bar and hit the deceased on the forehead and he fell to the ground. From the evidence on record, we accept the finding by the learned trial judge that by his conduct and the nature of the brutal attack on the deceased, the appellant's intention was to kill the deceased, or cause him grievous bodily harm. Consequently, we find that the appellant's conduct in causing the death of the deceased was not devoid of the requisite malice aforethought. On the assertion that the appellant was provoked and struck by the deceased, hence his J13 retaliation, we agree with the finding by the learned trial judge when she stated at page J14 of her judgment as follows: "I have already established that the deceased suffered multiple injuries in the attack while the accused surprisingly had not sustained any wounds after allegedly being struck twice with the same iron rod. This clearly goes to imply that the reaction of the accused was by far greater than that required to prevent harm to himself." The learned trial judge was, therefore, on firm ground in finding the appellant guilty of murder. In our view the Saluwema case is distinguishable from the present case. In that case, the prosecution alleged that the appellant caused the death of the deceased by kicking him in the head After the fight was over it was obvious that the deceased was seriously injured. He died eight days later after he was taken to hospital. The issue to be determined was whether it was the kick administered by the appellant that caused the death of the deceased. Blagden J. A. stated at page 6 that "... it is clear that the deceased received at least two fist blows in the first fight and one or both of them was of sufficient force to knock him down. I have already referred to Dr Swain's evidence as to how the fatal blow might have been struck. She said: 'I would think it retaliation, we agree with the finding by the learned trial judge when she stated at page J14 of her judgment as follows: "I have already established that the deceased suffered multiple injuries in the attack while the accused surprisingly had not sustained any wounds after allegedly being struck twice with the same iron rod. This clearly goes to imply that the reaction of the accused was by far greater than that required to prevent harm to himself." The learned trial judge was, therefore, on firm ground in finding the appellant guilty of murder. In our view the Saluwema case is distinguishable from the present case. In that case, the prosecution alleged that the appellant caused the death of the deceased by kicking him in the head. After the fight was over it was obvious that the deceased was seriously injured. He died eight days later after he was taken to hospital. The issue to be determined was whether it was the kick administered by the appellant that caused the death of the deceased. Blagden J. A. stated at page 6 that: "... it is clear that the deceased received at least two fist blows in the first fight and one or both of them was of sufficient force to knock him down. I have already referred to Dr Swain's evidence as to how the fatal blow might have been struck. She said: 'I would think it unlikely that the blow would be caused by a fist'. I do not consider that the observation rules out the reasonable possibility that this was how the fatal blow was inflicted. It may not be probable, but if it is only reasonably possible, as I think it is here, then there must be a reasonable doubt as to whether it was the kick administered by the appellant which caused the deceased's death. In these circumstances the prosecution cannot be said to have discharged the burden of proof upon it of proving the accused's guilt beyond reasonable doubt; and that is fatal to this conviction. It was for these reasons that I concurred in allowing this appeal." (Underlining our emphasis) As can easily be discerned from the above excerpt, the court, in the Saluwema case, found that there was a reasonable doubt as to whether it was the kick administered by the appellant which caused the death of the deceased. Whereas in the present case, there is overwhelming evidence of PW1 that he saw the appellant hit the deceased with an iron bar on the forehead and he fell to the ground. And according to the post-mortem report, the deceased died from "crushing of brain due to chop wounds of head." Quite clearly, there can be no doubt from the facts of this case that the crushing of the deceased's brain that caused his death is directly linked to the fatal blow inflicted by the appellant on the head of the deceased. Therefore, the argument by the learned counsel for the appellant that the appellant should have been found guilty of manslaughter on the basis of the Saluwema case is not sustainable We further agree with the learned counsel for the respondent that in the light of overwhelming evidence establishing malice aforethought, the appellant's explanation cannot reasonably be possible. The learned counsel for the appellant submitted in the alternative, that where self-defence or provocation fails there is extenuation and the guilty person gets a custodial and not a death sentence on the basis of the principle in the Simusokwe case. We agree with the learned counsel for the respondent that the Simusokwe case is distinguishable from the facts of this case. In that case, this court held that the intimate relationship and the alleged infidelity which led to the assault were an extenuating circumstance. It is trite that a failed defence of self-defence or provocation does not in itself qualify as extenuation. The facts of the case must reveal something more. It is plain to us that the facts of this case do not establish anything more that would qualify as an extenuation. Consequently, we find that the appellant is not entitled to a non-capital punishment on the basis of the Simusokwe case. The net result is that the appellant's sole ground of appeal, therefore, fails. We uphold the judgment of the court below and dismiss this appeal for lack of merit. E. C. Muyovwe SUPRIME COURT JUDGE C. Kajimanga SUPREME COURT JUDGE