Mwale v The People (Appeal 286 of 2011) [2014] ZMSC 36 (6 January 2014)

IN THE SUPREME COURT OF ZAMBIA 286/2011 APPEAL No. HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: GIBSON MWALE AND THE PEOPLE APPELLANT RESPONDENT CORAM: WANKI, JS AND LISIMBA AND KAOMA, Ag JJS 06th November, 2012 and 07th January, 2014 For the Appellant: Mr. A. Ngulube, Director Legal Aid Board. For the Respondent: Mr. R. L Masempela, State Advocate. JUDGMENT KAOMA, Ag JS delivered the Judgment of the Court. Cases referred to: 1. The People v Nkata (1972) Z. R. 296 2. Fawaz Shawaz & Another v The People(1995) Z. R. 105 3. Kambarange Mpundu Kaunda v The People (1990-92) Z. R. 215 4. Mulonda v The People (1978) Z. R. 351 5. David Zulu v The People (1977) Z. R. 151 6. Tembo v The People (1972) Z. R. 220 7. Mwambona v The People (1973) Z. R. 28 - J2- Legislation referred to: - J3- 1. The Penal Code, Cap 87, ss. 9(1), 13(4), 199, 200, and 204 2. The Supreme Court Act, Cap 25, s. 15 The appellant was tried and convicted by the High Court at Lusaka of murder contrary to section 200 of the Penal Code, Cap 87 of the Laws of Zambia. It was alleged that he on the 10 th day of July, 2010 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia did murder one Francis Chishimba. He was consequently sentenced to life imprisonment. He has appealed against both conviction and sentence. The summary of the prosecution evidence is that Mirriam Siame (PW1) used to do work for Goodson and Chiluba Ngwenyama as a maid. She started the work in 2005. Sometime in June, 2010 on a Saturday, PW1 went for work with her baby, the deceased, aged one year five months. In the course of the day the baby messed himself. When knocking off, PW1 got a chitenge wrapper belonging to her employer and wrapped the deceased in it. Since the baby was ill, PW1 did not report for work on Monday and Tuesday. She had to take the baby to the clinic for medication. - J4- On Monday she passed through Chazanga. She met the parent to Goodson Ngwenyama who asked her who had given her the chitenge and told her to return it. On Tuesday she went to her mother's house. She was told that her employer’s parent had visited her mother and said PW1 had their chitenge. On another date PW1 was told that the chitenge was no longer wanted; instead she should pay K20,000. She refused to pay the amount demanded. On 4th July, 2010, her mother and sister and the owner of the chitenge and the appellant went to PW1's house to discuss the issue of the chitenge. PW1 said she had known the appellant since 2005; he used to hang around her employer’s house and she thought he was a family member. At that meeting PW1 was accused of having stolen a cycling short, a hat and shirt. She denied and accepted having taken only the chitenge. Chiluba Ngwenyama wanted her to continue working, but she declined and went home. In the morning of 10th July, 2010 PW1 went with the baby to visit her mother. They returned home about 18:00 hours. After retiring to bed, around midnight, the appellant went to knock on her door. She asked him what he wanted. - J5- He said he was sent by the mother of Ngwenyama to have sex with her and pay her K20,000 for her to pay her former employer for the chitenge. She told the appellant that she had not slept with a man since her husband left seven months earlier. She got an iron bar and hit him. He did not move until a struggle ensued. She called for help, but no one heeded her cry. She went to the landlord who came with her to the house. She heard the baby cry twice in her bedroom, and then it was quiet. They knocked on the door, but the appellant refused to open. She asked the landlord for the door to be broken, and they went to awaken a Mr. Steve, but he refused. Feeling helpless, she ran to her parents’ house in Kabanana compound. She returned to her house with her parents and grandmother. She testified that they even went to report the matter at Kabanana police post, but the police could not do anything because they were not enough officers at the station. She was given a number to call when she got home. Back at home she heard the appellant snoring. With the help of the landlord, PW1 entered the house through a window after removing some blocks. She opened the front door and lit a match. The other people entered the house. - J6- The appellant was sleeping on the bed. His clothes and the baby’s clothes were on the floor. They looked under the bed for the baby because it seemed there was only one person on the bed. They did not see the baby. The landlord uncovered the appellant. They found the baby on his chest. They tried to remove the baby, but the appellant who was half asleep said “aah just sleep” and he continued snoring. When he was disturbed, he released the baby. PW1 got the baby and gave it to her grandmother. Its neck was bent. PW1 wanted to attack the appellant, but she was stopped. The appellant was taken to Kabanana police post. On the way he pleaded not to be killed as he was just sent. The deceased was taken to UTH mortuary. PW1 said the baby was okay before the appellant arrived. In cross examination, PW1 said her husband ran away because of the illness of the baby. She agreed that she was unhappy that she had been abandoned and the baby was sick. She denied drinking alcohol, or meeting the appellant at a bar earlier in the night, or inviting him home, or that the appellant appeared drunk, or looked mad when he confronted her at her house. - J7- PW2 was the mother to PW1. She testified that Rabecca’s grandmother went to her house saying PW1 had taken her chitenge. She admitted seeing the chitenge, but advised that PW1 was the right person to return it. The woman then rejected the chitenge and wanted K20,000. PW2 offered to pay, but the woman wanted PW1 to pay. She confirmed that on 4th July, 2010 the woman returned with the appellant and asked to be led to PW1’s house. At PW1’s house the woman said there was no peace in the house because PW1 had stopped work. The appellant insisted that PW1 should pay for the chitenge because at one time he had also taken cement and they made him pay. The woman asked them to go with her. They refused because they wanted to go to church. The woman warned them that the police would visit them if they refused. PW2 also confirmed that on 10th July, 2010 she was with PW1 from morning until 18:00 hours and that PW1 returned around midnight to inform her and her husband that the appellant had entered her house and remained there with the baby. She also confirmed that they went to Kabanana police post and found one officer who gave them a paper to call if they found the criminal. - J8- She confirmed too that they accompanied PW1 to her house; they found the house locked and blocks near the window had to be removed for PW1 to gain entry and open the door; and they all entered and found the appellant asleep with the baby on his chest, facing down. In her words the appellant had blood on his mouth. They tried to awaken him; he simply said “let me sleep”. They struggled with him and told him that he had killed the baby, but he refused. They tied him up. The baby seemed as if he had messed up and was asleep and cold. She asked why the appellant entered the house. He said he was sent by Rabecca’s grandmother to sleep with PW1 and pay K20,000. She said the baby’s condition had been fine except when he had diarrhoea after being weaned. In cross examination she denied that PW1 could kill the baby or that the appellant was confused when they found him in the house. PW3 was Chilandu Zulu, who testified that on the night of 11 th July, 2010 she was awakened by PW1 who complained that a man had entered her house and she wanted to use PW3’s phone to call her mother (PW2). She went to PW1’s house. They tried to call PW2, - J9- but failed to get through. PW3 too heard the baby cry inside the house. - J10- She confirmed that she tried to open the door, but it was locked, and that PW1 decided to go to her parent’s house and returned with them and with her grandmother. Her evidence of how events flowed thereafter is the same as that of PWs 1 and 2. She added that she had been neighbours with PW1 for only three weeks, and she was never close to PW1 to observe the baby. She last saw the baby alive earlier before the incident in question. She did not know the appellant before the fateful night. In his defence the appellant testified that he had known PW1 in 2007 and visited her at home before. On the material date she asked to meet him at Kabanana bar where they always met. They met and drunk beer. At 22:30 hours they left for PW1’s house where they found the baby asleep on the bed. He said PW1 moved the baby towards the wall. They had sex on the bed after which they slept. PW1 was next to the baby. It is the appellant’s testimony that he was in a state of semi drunkenness and that PW1 was also a bit drunk. He said he was awakened by PW1 in the middle of the night; she was with her parents. He heard the parents scold PW1 for sleeping with him after coming out of hospital with a sick child. - J11- He said he was beaten and taken to the police. He did not know why. The landlord and their child were outside. The baby was with its grandmother. He came to know that the baby had died after two days. He was charged with murder after two weeks. He said he did not know how the baby died; and that it is the doctor who knows. In cross examination he insisted that PW1 used to lock the door with keys and that on the material night she locked it. He also insisted that he did not know what happened between the time he slept and the time he was awakened by PW1. But he confirmed that the baby was fine at the time he and PW1 slept together. On behalf of the appellant, Mr. Ngulube, the learned Director of the Legal Aid Board advanced three grounds of appeal. The first ground is that the court below erred in law by finding that the appellant was guilty of murder by way of inference from circumstantial evidence of him having been found with the deceased child on his chest, the second ground is that the court below erred in fact and law by failing to find that the prosecution had not proved that the appellant had intended to kill the deceased, and the third ground is that the sentence imposed was excessive. - J12- Mr. Ngulube has argued the first two grounds of appeal together. He submitted that the court below drew the inference that the appellant must have caused the death of the deceased child because he and the child were the only people in the room and there was absence of a reasonable explanation as to why he was found with the baby on his chest. Counsel submitted that the court did not fully deal with the circumstances attending the events of 10th July, 2010, and did not consider the elements of murder and its variations with regard to mens rea. He cited sections 199, 200 and 204 of the Penal Code, which provide respectively for the offences of manslaughter and murder and for various instances when malice aforethought is deemed to have been proved in murder cases. Counsel further submitted that there is no direct evidence that the appellant caused the death of the child; that even assuming that he did, the question that arises is whether he did so with the intention to kill or cause grievous bodily harm; and that the circumstances in which the appellant was found with the child do not show the likely behaviour of a murderer. - J13- He also urged that there was no medical evidence that the appellant squeezed the child’s neck with his hands, and that the conclusion that the child was strangled was arrived at because of the broken thyroid bone on the right side, which could be attributed to various causes such as the suggested strangulation, falling of the child from the bed, and accidental forceful physical contact on the right side of the child’s neck. He contended that PW1 could have strangled the child to rid herself of the pain and hardship of looking after a sickly child single-handedly, that there was no motive for the appellant to kill the child, that the child could have been accidentally injured by either PW1 or the appellant in the process of having sex as the child was on the same bed, or it could have been accidentally injured on the neck by the appellant in his drunken or sleepy state. Counsel urged us to find that the killing of the deceased was accidental and referred us to the case of The People v Nkata1 where the High Court held that where a man doing a lawful act, and without any intention of hurt, accidentally kills another, it is homicide by misadventure. He further urged us to acquit the appellant on account of the killing having been accidental. - J14- He also cited s. 9(1) of the Penal Code which states that subject to the express provisions of the Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. He also cited Fawaz Shawaz & anr v The People2 where we said the injuries found in homicidal strangulation cases are usually more extensive than in accidental homicidal cases due to the fact that the assailant uses more force than is necessary to cause the death of his victim. He said the injury found on the baby is consistent with accidental killing. Mr. Ngulube submitted further that the court below did not take into account the evidence of intoxication when considering whether the appellant had intent to kill or cause grievous harm and therefore deprived him a fair chance of acquittal on a charge of murder. He referred us to s. 13 (4) of the Penal Code which provides that intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention specific or otherwise, in the absence of which he would not be found guilty of the offence. - J15- It was also argued by Mr. Ngulube that the trial court misdirected itself by failing to warn itself against the danger of false implication. Kambarange Mpundu Kaunda v The People3 was cited where we said that “prosecution witnesses who are friends or relatives of the prosecutrix may have a possible interest of their own to serve and should be treated as suspect witnesses. The court should therefore warn itself against the danger of false implication of the accused and go further to ensure that that danger has been excluded”. Counsel contended that PWs 1 and 2 were related, while PW3 may be described as a ‘friend’ by virtue of being a neighbour, but the court did not warn itself or make a finding that the danger of false implication had been excluded; and that the appellant was left in jeopardy of a conviction that was not safe. Lastly Mr. Ngulube argued that since the appellant testified he provided material which could be looked at as creating reasonable doubt. He referred us to Mulonda v The People4 where we said that the issue was whether the appellant had malice at the time of the killing, that as he exercised his right to remain silent, we shall never know why it was that he took the life of his friend. - J16- With regard to the third ground of appeal Mr. Ngulube submitted that there were no aggravating circumstances to justify the sentence of life imprisonment. He urged that should we not acquit the appellant, we should impose a lenient sentence. In response to the first ground of appeal, Mr. Masempela, the learned State Advocate, submitted based on David Zulu v The People5, that the court below did not err when it found the appellant guilty of murder as the circumstantial evidence was so strong and had taken the case out of the realm of conjecture and could only permit an inference that it was the appellant who killed the child. He submitted that PW1’s evidence of what transpired on the material night is corroborated by PWs 2 and 3. Counsel also argued that the appellant does not dispute that the child was fine at the time he went to the house or that the child was found on his chest with injuries, therefore it was him who caused the injuries as he was the one found with the child. It is also counsel’s argument that since the appellant says he was in a state of semi-drunkenness and he does not know what happened and it was PW1 who knew; then the latter told the truth. - J17- On the second ground of appeal, Mr. Masempela contended that there was overwhelming circumstantial evidence proving that the appellant had malice aforethought. He said the postmortem report disclosed that the cause of death was asphyxia due to strangulation; that it was the appellant who strangled the child as it was okay when he arrived at the house; and that the act of strangling a person simply shows that the appellant’s intention was to cause death or grievous harm. He further submitted that the defence of accident or intoxication is not available to the appellant as he did not give an account of how the accident occurred and he said he does not know what occurred. That the appellant was not drunk and knew what he was doing. Counsel submitted also that it takes a lot of effort to strangle a person and for the appellant to have done so shows that he was not drunk. It is furthermore Mr. Masempela’s contention that in pleading either of the defences just contradicts the appellant’s defence and shows that the defence is a made up story and the truth is that he strangled the child. - J18- In relation to the third ground of appeal, Mr. Masempela submitted that there are aggravating circumstances as the deceased was a sick child aged one year five months and the manner in which the child was killed too was aggravating. He urged us to dismiss this ground of appeal. We have addressed our minds to the evidence on record, the judgment appealed against and the arguments by both counsel. With regard to the first two grounds of appeal we must state that it was undisputed that Francis Chishimba, died of asphyxia due to strangulation. The cause of death was revealed in the postmortem report produced in the court below as Exhibit P1. We must also state that the evidence available to the court was circumstantial as there was no eye witness to the killing of the child. However, we agree with the argument by the learned State Advocate that the circumstantial evidence in this case was so strong that the only inference to be drawn was that the appellant unlawfully caused the death of the deceased. It is a fact that the appellant was found alone on the bed with the baby aged one year five months, on his chest. His clothes and the baby’s clothes were on the floor. - J19- There was no explanation for that. The appellant said when they arrived at PW1's house, the latter moved the baby towards the wall, and he slept on the other side on the edge of the bed. But he confirmed that at the time he and PW1 slept together, the deceased was fine. This supported the evidence of PWs 1 and 2 in relation to the condition of the baby prior to the incident in question. In addition, the evidence of PWs 1 and 3 shows that before PW1 ran off to call her parents, the deceased was heard crying twice and then it was quiet. They tried to open the door to the house, but it was locked. Further, the appellant did not dispute that the deceased was found lying on his (appellant's) chest when the three prosecution witnesses gained entry to the house. We are not persuaded by Mr. Ngulube’s argument that PW1could have strangled the child to rid herself of the pain and hardship of looking after a sickly child single-handedly after the husband abandoned her. Neither are we persuaded that the child could have been accidentally injured by either PW1 or the appellant in the process of having sex as the child was on the same bed. We do not believe that there was any intimacy between the two that night. - J20- Mr. Ngulube contended that there was no motive for the appellant to kill the child. There is evidence on record, which we believe that the appellant was sent to sleep with PW1 and pay her money to enable her to pay for the chitenge. It is also on record that when he was being taken to the police, he pleaded not to be killed because he was just sent. By being in the house alone with the baby the appellant had the opportunity to commit the offence especially that the door to the house was locked from inside. PW1 had to enter through the window after blocks were removed to enable her open the door, which was locked not with keys as the appellant would want us to believe, but with an iron bar. We do not agree also with the spirited argument by Mr. Ngulube that the explanation given by the appellant provided material which could be looked at as creating reasonable doubt or that the appellant is entitled to an acquittal. The gist of the appellant’s defence was that he did not know what happened to the baby to cause its death. The lower court was on firm ground to have found that the appellant gave no reasonable explanation as to why the baby was found on his chest, dead. - J21- In these circumstances, it was clear that only one inference could be drawn and it was that the appellant caused the death of the deceased. Therefore the first ground of appeal must fail. We turn now to the second ground of appeal. Although the court below did not discuss what constitutes murder or find that the requisite malice aforethought was established, the court found the appellant guilty of murder after drawing an inference from the circumstances of the case. As submitted by Mr. Masempela, the postmortem report shows that the deceased's thyroid bone was broken and that the cause of death was asphyxia due to strangulation. We find in terms of s. 204 (b) of the Penal Code that the appellant being 28 years old ought to have known, as a reasonable person would, that breaking the thyroid bone of a baby would cause either death or grievous bodily harm. Mr. Ngulube referred us to Fawaz Shawaz & another v The People2 where we said in dicta that there is bound to be some bruising or other injury in homicidal strangulation cases and that these injuries are more extensive as compared to accidental homicidal cases. - J22- We wish to state that a broken thyroid is not only "any other injury" but also an "extensive injury" as alluded to in the Fawaz case. We disagree with Mr. Ngulube that the broken thyroid bone sustained by the baby was consistent with an accidental killing. There was no evidence to suggest that the baby was accidently strangled. The case of The People v Nkata1 is not applicable. The appellant was not engaged in a lawful act, when he strangled the baby. Mr. Ngulube also submitted that the court below did not take into account the evidence of intoxication when it decided whether the necessary intent to kill had been established. We find that the lower court was on firm ground not to have considered the issue of intoxication as no evidence was led to that effect during trial. We wish to re-state what we said in Tembo v The People6 that: 1. A court is not called upon to consider intoxication for the purposes of s. 13 (4) of the Penal Code unless there is evidence of intoxication fit to be left to a jury; and 2. Evidence of drinking, even heavy drinking, is not sufficient in itself, nor is evidence that an accused person was under the influence of drink in the sense that his co-ordination or reflexes were affected. To constitute ‘evidence fit to be left to a jury’ for the purposes of s.13(4) there must be evidence that an accused person’s capacities may have been affected to the extent that he may not have been able to form the necessary intent. - J23- The appellant merely said he was semi-drunk. We find that that does not amount to evidence of drunkenness. There was no evidence before the lower court to show there that the appellant’s capacities were so affected by drinking that he could not have formed the necessary intent. We therefore reject the contention by Mr. Ngulube that the lower court ought to have taken intoxication into account when considering whether the appellant had the necessary intent or that the baby could have been accidentally injured on the neck by the appellant in his drunken or sleepy state. Nevertheless, we agree with Mr. Ngulube's argument that the court below misdirected itself by not warning itself against the danger of false implication in relation to the evidence of PWs 1 and 2. We accept that the two witnesses were relatives of the deceased. They can therefore be said to have had a possible bias against the appellant. However, we have evaluated the evidence and we find that had the lower court properly warned itself, it would have inevitably come to the same conclusion that the appellant was guilty as charged. We therefore apply the proviso to s. 15 of the Supreme Court Act, Cap 25 of the laws of Zambia. - J24- We have accordingly warned ourselves of the possible bias that PWs 1 and 2 could have. As a result of the application of the proviso, we are convinced that the misdirection by the court below will not result in an acquittal as we said in Mwambona v The People.7 However, we do not agree that PW3 falls under the same category as PWs 1 and 2. PW3 was neither a relative nor friend to the deceased or PW1. PW3's evidence was that she had been a neighbor to PW1 for a period of only three weeks and that they were not close. Further, she did not know the appellant before the fateful night. We therefore find that PW3 had no reason to falsely implicate the appellant. In our view, PW3 was an independent witness who in fact corroborated PW1’s evidence that the deceased was heard crying twice at the time they went to PW1's house. She confirmed also that they tried to open the door, but it was locked. On the whole matter, we find that this ground of appeal too must fail. Accordingly the appeal against conviction fails and is dismissed. In relation to the third ground of appeal, we do not agree with Mr. Ngulube that the sentence was excessive as no aggravating circumstances were cited for the life sentence. - J25- On the other hand we find that the argument by Mr. Masempela that the strangulation of such a young and sick baby was an aggravating circumstance has merit. The learned trial judge accepted that the appellant’s drunkenness at the time of the killing may amount to an extenuating circumstance. We find that this semi-drunkenness was not an extenuating circumstance to warrant the imposition of a life sentence in a clear case of murder. We therefore set aside the life sentence and substitute it with the mandatory death sentence as required by law. In the circumstances the appeal against sentence too fails and is dismissed …………………………………….. M. E. WANKI SUPREME COURT JUDGE …………………………………… ……………………………….. M. LISIMBA R. M. C. KAOMA AG. SUPREME COURT JUDGE AG. SUPREME COURT JUDGE