Elias Mwansa v The People (Appeal No. 57/2022) [2023] ZMCA 215 (22 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No, 57 /2022 BElWEEN: ELIAS MWANSA AND APPELLANT THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga, On 15th November, 2022 and 22nd August, JJA 2023. For the Appellant: Mr. H. Mweemba, Acting Director, Legal Aid Board For the Respondent: Ms. State Advocate, National Prosecution V. Nsingo, Authority JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. Joseph Mutaba Toho v. The People (1990 -1992) ZR 140 (SC) 2. Mushanga v. The People -SCZ Judgment No. 18 of 1983 3. Kanyanga No. 77 of 2012 v. The People -SCZ Judgment 4. Mayila Kondolowe s. Khupe Kafunda v. The People -CAZ Appeal No. 116/2021 v. The People (2005) ZR 31 Legis.!ation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia, Other .works referred to: 1, Bryan A. Garner, Black's Law Dictionary, 8th Edition. 1.0 INTRODUCTION 1.1 The appellant was convicted of one count of the offence of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. 1.2 The particulars of offence alleged that on 1th July, 2017 at Chililabombv-ie in the Copperbelt Province of the Republic of Zambia, the appellant murdered Mu sole M bi lishi. He was subsequently sentenced to death by Lamba, J. 2.0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 At the commencement of the trial. the appellant was sent for mental i examinat on, The results came back stating trial and was not labouring disease under a that he was fit to stand of the :r1ind at the time of the commission of the offence. J3 2.2 The prosecut lon called a total of three witnesses. A summary of the prosecution evidence is that the appellant found his daughter PWl speaking to a man. He chased the man, got hold of the daughter and told her that she should choose to either be killed or sleep with him. He thus started laying her on the ground in the bush in an attempt to have sex with her. She cried and asked him why he wanted to do this to his own biological daughter. In the process, the wife of the appellant (deceased) appeared. This was around She 19:00 hours. inquired what was happening. The appellant told her that he was reprimanding her daughter. Later PWl explained to the deceased what the appellant was trying to do to her and that the reason the that the deceased appellant gave was was getting old so he needed a young person. 2.3 The following night, the appellant entered PW1's room naked and tried to have sex with her. She shouted for went to help and the deceased her bedroom and found the appellant between the PWl's legs. Thereafter, the deceased left for her pa rent's with PW 1. pl ace together The appellant followed them on the pretext that he had engaged elders to help them discuss issues. their 2.4 When they returned to their house, the appellant was asked where the elders were and the appellant answered that he just wanted them to return home. He then started sharpenrng an axe. When PWl went into the house, she heard her mother who was outside with the appellant screaming and crying stating that "you have killed me." She immediately went outside the house and found an axe stuck in her mother's neck and the appellant was struggling to remove it. When she realised what the appellant had done, she running. started The appellant managed to unhinge the axe and pursued her saying "I have to kill you too so that you do not report what you have seen." He threw the axe at her but it missed her. 2.5 She managed to find refuge at a Mr. Mweemba's house. She narrated to Mr. Mweemba what transpired and asked for help with her mother. They run back to the scene where they found that the deceased had already died. The appellant was later apprehended by neighbourhood watch members and charged with the subject offence. 2.6 This marked the close of the prosecution case. The appellant was found with a case to answer and he was put on his defence. He opted to give sworn evidence and called no witness. JS 3.0 THE DEFENCE In his defence, the appellant narrated that he did not know what was happening at the time the incident was unfolding. He said he had a medical condition that he had been suffering from for about five years at the time of testifying. He told the trial court that there would be times he would be under attack by evil spirits and would not know what he was doing, He informed the trial court that he once visited a native doctor to seek help and he was informed that his condition was related to insanity. He was given traditional medicine but said he usually experienced episodes of his condit ion in intervals. He also informed the trial court that when his illness persisted, he was referred to Chainama Hospital where he was put on medication for five years. that his He admitted daughter PW1 had no reason to implicate him. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4 .1 After a careful considerat ion of the evidence before her, the learned i tr al judge found that the deceased had left the matrimonial house at the material time and that she was tricked by the appellant to return. When she returned, the appellant killed her with an axe and thereafter J6 attempted to kill PW1 to prevent her from being a witness to what had happened. The trial court further found that the appellant exhibited behaviour that is frowned on and unacceptable, but not because he was insane. 4.2 The court found that the appellant was in control of his senses at the time of the commission of the offence. In summation, the trial court pointed to be out that the appellant's conduct was too co-ordinated that of a person who did not know what he was doing or was not in control of his mental The trial and other faculties. court found that the appellant being of full mental capacity mens rea and with the requisite did murder the deceased. The appellant was accordingly convicted and sentenced to death. APPEAL 5.0 GROUNDS OF Discontent with the conviction, filed the appellant two grounds of appeal couched as follows: (1) The learned trial court erred in law and in fact when the court convicted appellant insanity, to death the appellant and sentenced the in the presence of the defence of J7 (2) The learned convicted the presence trial judge erred in and sentenced law and in fact when she him to death in circumstances. of extenuating the appellant 6.0 THE APPELLANT'S ARGUMENTS 6.1 In support of ground one of the appeal, learned for the counsel appellant contended that the appellant had sufficiently the raised defence of insanity on the balance by the of probabilities as required lavv. According to the appellant, the trial court ought to have taken the medical into consideration report as well as the evidence before it. \Ne. were referred People1 in which it vvas held that to the case of Joseph Mutaba Tobo v. The "In the case of Mushanqa v the opportunity relation that: to the defence of considering The People2 this court had the doctor's of insanity. We said in that case evidence in the medical presented evidence. to the trial However, evidence together Its quality mental disability, court may or may the court is bound with all and weight "On an issue of evidence not be conclusive. the medical to consider other relevant will be assessed circumstances which we have already mentioned medical more reliable of an accused. in light of all of the case. But, as the cases be considered by or on behalf than the assertions In this regard, the other facts and will usually evidence to be we are satisfied indicate, JS that the submissions, doctor's overturned, that the opinion in this case should be for us." hold no attraction to the effect 6.2 It was contended that this case is distinguishable from the case of Joseph Mutaba Tobo supra in respect of facts. to According learned counsel, the issue to be considered in casu was that the medical report may not be conclusive and thus the need for the trial judge to have taken into consideration on the undisputed evidence the record that the appellant had some form of mental condition. We were urged to uphold the appeal on this ground. 6.3 In support of ground two, which was argued in the alternative, counsel contended that the trial judge should have found that there were extenuating circumstances. According to learned counsel, the facts of this case reveal that the appellant qualifies to be afforded extenuating circumstances because there is evidence that the appellant was not behaving like a lucid person. It was submitted that these facts diminished the degree of his guilt. 6.4 We were referred to the case of Kanyanga v. The People3 where the Supreme Court guided that Section 201 of the Penal Code J9 should be read together with the Black's Law Dictionary 8th Edition by Bryan A. Garner on page 260 which defines extenuation as: circumstance means a fact or situation or excuse a wrong act or offence, "Mitigation does not justify that reduces punishment. question the court in imposing the severity lessening guilt, of a defendant's punishment of a sentence." that but and this may reduce the that does not bear on the but that is considered and especially by in the culpability A fact or situation 6.5 In conclus i on, it was submitted that the facts of this case reveal a situation which falls within the definition of mitigat ing circumstance thus affording the appellant to be considered under the principles of extenuat ing circumstances. We were urged to allow the second ground of appeal. 7.0 RESPONDENT'S ARGUMENT 7.1 On behalf of the respondent, learned counsel supported the conviction for the offence argued and sentence of the appellant that the trial court was on firm ground based on ev appellant i dence on the record of murder. Counsel when it convicted the as well as the psychiatric report. It was counsel's contention that the trial court cannot be JlO faulted for accepting the psychiatric report regarding the mental status of the appellant at the time the offence was committed. 7.2 In respondlng to ground one of the appeal, that the it was contended evidence adduced by the appellant was not sufficient to support his defence of insanlty. It was pointed out that the trial judge properly analysed the evidence on the record and came to the conclusion that the appellant was in full control of his sense when he murdered his wife. It was submitted that the appellant made sexual to his advances blological daughter because she was younger than her mother, the deceased. after Secondly, killfng the deceased, he ran after PW! w i th the intention to kill her so that she does not report what happened. It was submitted that this evidence shows that the appellant acted with precise intention and that he was well aware of what he was doing. 7.3 In responding to ground two of the appeal, it was learned counsel's contentlon that there were no extenuating capable circumstances of reducing the appellant's culpability. According to counsel, insanity should be distinguished from diminished responsibility which reduces murder to manslaughter. It was submitted that diminished responsibil i ty is covered under Section 12A (4) of the Penal Code J 11 anc covers cases of persons with abnormalit ies of the mind such as epilepsy anc! not mental illnesses, It was pointec out that the appellant did not meet the threshold unc!er Section 12A of the Penal Code. 7.4 Vl/e were urged to dismiss this appeal for lack of merit. 8.0 THE HEARING 8.1 At the hearing of this appea I, learnec counsel for the appellant Mr. Mweemba, the Acting Director of Legal Aic! Board, informed the Court that he would rely on the filed heads of arguments and learned counsel for the responcent Ms. Nsingo, State Advocate, informed the Court that the State would also rely on the filed arguments. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 Vl/e have carefully examinec! the evicence on the recorc!, the arguments by both counsel and the judgment sought to be assailed. The issue that this appeal raises is whether the appellant successfully raisec the cefence of insanity and in the alternat ive, whether a failed cefence of insanity can afford extenuation. 9.2 We stated in the case of Mayila Kondolowe v. The People4 , at Jl4 to J15 that: defence "It is trite that the onus of proving the of insanity is on the lies on an accused and the standard J12 report finds that an under a disease where a medical was labouring of probability. We wish to make it clear that balance even in instances accused time of commission to raise the defence on its merits (See the case of Khupe Kafunda v. The People5). The defence can thus not be forced on an accused of the mind at the it is up to the accused to defend the of the offence, at trial or choose person." case 9.3 In this case, the appellant was examined and the report found that he was fit to stand trial and that he was not labouring under a disease of the mind at the time of commission of the offence. It was stated in the case of Mushanga v. The People2 that medical evidence in insanity cases is usually more reliable than assertions by or on behalf of the appellant. Counsel for the appellant has argued that the learned trial court heavily relied on the medical evidence, disregarding the other evidence on the record. We do not agree with this submiss ion on account that the learned trial court a�er revi ew ing the medical report before it, went on to evaluate the facts on the record with regard to the appellant's behaviour conduct and found that the appellant's was too co-ordinated to be that of a person who did not know what he was doing or was not in control of his mental and other faculties. JB 9 .4 The tr i a I court further found that the a ppel I ant exhibited behaviour that is frowned on and unacceptable, but not because he was insane. It is our view that the trial judge rightly found that the defence of insanity was not available The trial to the appellant. court not only considered the medical evidence but also the facts of the case. The manner in which the appellant meticulously bamboozled and his the deceased daughter into a trap, leaving one dead and another traumatised, cannot certainly be done by a person suffering from of the a disease mind. The learned trial court was on very firm ground in rejecting the defence of insanity. 9.5 In the alternative, counsel for the appellant contended that the trial court should not have sentenced the appellant to death in the presence i of extenuat ng circumstances. In responding to this argument, counsel for the respondent stated that there were no extenuating circumstances capable of reducing the appellant's culpabillty. 9.6 From what we can gather from the appellant's submission, the fact that the defence of insanity has failed should accord the appellant extenuation. This argument appears to be novel. We wish to state without hesitation that a failed defence of insanity, in whatever form J14 cannot amount to an extenuatfng circumstance. This is because once a defence of insanity is successfully raised, an accused person is found not guilty by reason of insanity. 9. 7 Therefore, it is either the defence has been made out or not. Meaning either a person was insane at commiss ion of the offence or was sane. The argument that the appellant was bedeviled by evil spiritual attacks is unascertainable ion. The at law and as such a farfetched murdering is that a sane person mercilessly illus resoundfng conclusion another, cannot in the absence avail of other factors, The extenuation. alternative ground is equally starved of merit and we dismiss it. 10.0 CONCLUSION 10.1 Having found no merit in both grounds the of appeal, we dismiss appeal. The conviction and sentence is upheld. F. M. CHISHIMBA COURT OF APPEAL JUDGE ... ' ... ' ...... ( � --- �.::.:J .. 7. •••••••••••••••••••• K. MUZENGA COURT OF APPEAL JUDGE