NELIS NKHOMA V THE PEOPLE (Appeal No. 156/2021) [2022] ZMCA 165 (23 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA {Criminal Jurisdiction) Appeal No. 156/2021 BETWEEN: NELIS NKHOMA AND THE PEOPLE 2 3 AUG 2022 i .. ·:· . Appellant l Al REG1S:R 50067, LU Respondent Coram: Mchenga DJP, Sharpe-Phiri, Muzenga, JJA On 15th June 2022 and 23 rd August 2022 For the Appellant: For the Respondent: Ms. M. Marebesa, Legal Aid Counsel, Legal Aid Board Mr. K. Sifali, Senior State Advocate, National Prosecution Authority JUDGMENT Sharpe-Phiri, JA, delivered the Judgment of the Court Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia Cases referred to: 1. Kashenda Njunga and others v The People (1988-89) Z. R. 1 (S. C) 2. Phiri and others v The People (1976) Z. R. 47 3. Patrick Sakala v The People (1980) Z. R. 205 4. Bwanausi v The People (1976) Z. R. 103 (S. C.) J 1 IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 156/2021 BETWEEN: NELIS NKHOMA 2 3 AUG 2022 . L Appellant AND THE PEOPLE l?EG1S'RY 067, L@1/ Respondent Coram: Mchenga DJP, Sharpe-Phiri, Muzenga, JJA On 15th June 2022 and 23 rd August 2022 For the Appellant: For the Respondent: Ms. M. Marebesa, Legal Aid Counsel, Legal Aid Board Mr. K. Sifali, Senior State Advocate, National Prosecution Authority JUDGMENT Sharpe-Phiri, JA, delivered the Judgment of the Court Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia Cases referred to: 1. Kashenda Njunga and others v The People (1988-89) Z. R. 1 (S. C) 2. Phiri and others v The People (1976) Z. R. 47 3 . Patrick Sakala v The People (1980) Z. R. 205 4. Bwanausi v The People (1976) Z. R. 103 (S. C.) J 1 1.0 INTRODUCTION 1. 1 This is an appeal against a Judgment of Kombe, J of the High Court at Chipata delivered on 30th August 2019. 1.2 The Appellant stood charged with the offence of Murder contrary to Section 200 of the Penal Code. 1 1.3 The allegations being that between 30th March 201 7 and 1st April 2017, the Appellant murdered her new born baby girl at Lundazi in the Lundazi District of the Eastern Province of the Republic of Zambia. 1.4 The Appellant denied the charge and the matter proceeded to trial. After analyzing the evidence before her, the learned Judge found the Appellant guilty of the murder, convicted her accordingly and sentenced her to death. 1.5 This is an appeal against both conviction and sentence. 2.0 PROSECUTION CASE 2 . 1 The evidence before the trial judge was that sometime in 2016 , the Appellant fell pregnant. She hid her pregnancy from her husband, PWl and her sister, PW2 . Nine months later, she secretly gave birth to a baby on 1st April 201 7. J 2 2.2 PWl and PW2 both observed that the Appellant was no longer pregnant and saw blood on the bedroom floor and a trail of blood leading from her bedroom to the outside toilet. When questioned about this, the Appellant insisted that the blood was from her monthly menstrual cycle. She also refused to go to the hospital and left to Bokosi Village. 2.3 PWl reported the matter to the neighborhood watch who apprehended the Appellant and took her to her home, where PWl identified her. During the questioning by the neighbourhood officers, the Appellant disclosed that she had given birth and had thrown her baby into the pit latrine. She proceeded to show PWl, and the neighbourhood watch officers where she had thrown the baby. The Appellant was apprehended by the police. They visited the scene on the third day, at which time the baby was in a decomposed state. After viewing the scene, PW 1 was directed to destroy and bury the toilet. 2.4 The evidence of PW2 verified that she had seen the Appellant pregnant and that she had seen the trail of blood at her sister's house. She confirmed inspecting the pit latrine with the neighborhood officers and seeing something wrapped in a chitenge. She also confirmed witnessing the police break the pit latrine, retrieve, and unwrap the chitenge which exposed a dead baby. J 3 2 .5 PW2 also testified that the Appellant had suffered from epileptic fits in her youth and had experienced demonic episodes after her marriage. 2.6 The further evidence of a neighborhood officer, PW3 confirmed that PW 1 had reported a matter to them on the day in question, and following on from this report, they proceeded to visit the scene of crime, where they observed blood on the floor and something thrown in a pit latrine. They apprehended the Appellant from Bokosi Village and brought her back to her home where she was questioned. During the discussions , the Appellant admitted dumping her newborn baby in the pit latrine to rescue her other breastfeeding child. He reported the matter to PW4 at Lundazi Police Station, who came to the scene and demolished the cover of the latrine and observed a baby in the latrine in a decomposed state. The body of the baby was not retrieved but instead buried with the toilet. 2. 7 The evidence of the arresting officer from Vubwi Police Station, PW 4 testified that he had taken up the case for investigation of a complaint made by PWl that his wife had given birth between 31 s t March and 1st April 201 7 and dumped the baby in a pit latrine within their premises. At the time, the Appellant was apprehended and detained in custody. J4 > 2.8 During his interviews with her, she confirmed that she had given birth to a baby, but she had dumped the baby in a pit latrine as she was still breastfeeding another child and needed to save him. 2.9 His further evidence was to the effect that the Appellant had led them to her home and the crime scene, and he had seen the pit latrine and a baby inside. He had photographed the scene and the appellant demonstrating where she had dumped the baby. He further confirmed that they had dismantled the pit latrine and were able to observe the baby inside the toilet. They did not retrieve the body on account of its decomposed state but directed the relatives to bury the body and the pit latrine. 2.10 PW4 confirmed that having heard that the Appellant had hidden her pregnancy and the birth of the child, he concluded that she had intentions of killing her baby. He also submitted a medical examination report and photographs. The medical report was issued on 18th June 2019 from Chainama Hospital following medical investigations conducted on the Appellant's state of mind at the time of the alleged offence. The report is at pages 25 to 29 of the record of appeal. J 5 3.0 THE DEFENCE 3.1 The Appellant testified on her own behalf before the lower Court as DWl. Her evidence was to the effect that she had gone into labour on 30th April 2017. During her labour, she had lost blood around the house and went to the toilet. 3 .2 At the toilet, she felt unwell and had an epileptic attack. Whilst having the fit, she gave birth and when the attack subsided, she realized that she was no longer pregnant. She suspected that the baby may have fallen into the pit latrine while she was trying to use the toilet. 3.3 Her further evidence was that she had taken the cloth she had carried and threw it into the latrine as it contained a lot of blood. She did not notify her husband about what had transpired despite him questioning her on the same . She denied and insisted that the blood was from her period. She was aware that her husband had notified her sister and his mother about what had transpired as they had questioned her but she had denied throwing the baby in the latrine. 3.4 Her further evidence was that after her sister had left their place, her husband insisted that she leaves the house which she did. She felt that she was not in the right frame of mind due J 6 - - ------------------------------------ - - to her epileptic episode and did not call for help as she w as afraid of her husband beating her. 3.5 The Assistant Registrar of the High Court testified as DW2 in his capacity as supervisor of the High Court registries , that he had received a medical report from Chainama Hospital pertaining to the Appellant, which he had tendered in as part of his evidence. 4.0 DECISION OF THE COURT BELOW 4 .1 After hearing the matter and analyzing the evidence before her, the learned judge in the lower court found that the Appellant was married to PWl, with 6 children. 4.2 She further found that the Appellant was pregnant and gave birth between 30th March and 1s t April 201 7; that a body of a newborn baby belonging to the Appellant was found dead in a pit latrine ; that no postmortem was conducted on the body of the baby to ascertain the cause of death due to its decomposed state . 4.3 The learned Judge further found that the conduct of the Appellant after she had given birth was not that of an innocent person as she knew what she had done . J 7 ' . 4. 4 The learned Judge accepted the evidence of PW3 and found that the Appellant caused the death of the baby, and she did it with malice aforethought. The learned judge therefore found the Appellant guilty of the offence of murder contrary to Section 200 of the Penal Code and convicted her accordingly. The appellant was sentenced to death. 4.5 This is an appeal against conviction and sentence. 5. 0 THE APPEAL 5.1 Being dissatisfied with the decision of the learned trial judge, the Appellant has brought this appeal. 5.2 The three grounds of appeal advanced by the Appellant are that: i) The trial Court erred when it did not inquire if PWl who was the Appellant's husband was willing to testify. ii) The trial Court erred when it failed to recognize that evidence before it inferred the offence of infanticide and not murder; and iii) That the trial Court erred when it convicted the Appellant without a postmortem report showing cause of death. J 8 ' . ' > 5.3 When the matter came up for hearing of the appeal, the Appellant abandoned the first two grounds and only argued the third ground and an additional ground as follows: i) That the trial Court erred when it convicted the Appellant without a postmortem report showing cause of death; and ii) In the alternative, that the trial Court erred when it failed to consider the Appellant's defence of diminished responsibility supported by the medical report tendered before it. 6.0 APPELLANT'S SUBMISSIONS 6.1 During hearing of the appeal on 15th June 2022, Ms. Marabesa, submitted viva voce in aid of the amended ground 1 of appeal that the trial Court erred when it convicted and sentenced the Appellant for the offence of murder without evidence of a postmortem report showing the cause of death of the baby. 6.2 Ms. Marabesa indicated that the evidence before the trial Court was that the Appellant had gone to the toilet where the baby was delivered and by the time, she realized this, it had fallen into the pit latrine. She argued that even though the evidence of PW3 was that the Appellant wanted to get rid of the baby to save her breastfeeding child, there was no evidence that the J 9 • deceased baby was born alive and there was no postmortem conducted to establish the cause of death of the baby. 6.3 Ms. Marabesa argued in the alternative, that the defence of diminished responsibility should have been considered by the trial Court as the Appellant had tendered a medical report which shows that she was epileptic. 7.0 RESPONDENT'S SUBMISSIONS 7 .1 Mr. Sifali, a Senior State Advocate from National Prosecution Authority (NPA) rebutted the Appellant's arguments and submitted that the prosecution was in support and agreement with the conviction and sentencing as adjudged by the trial Court. 7.2 He contended that although there was no postmortem conducted, the Appellant ought not to have thrown the baby in the pit latrine if she was not guilty of the offence. He added that it was clear that the Appellant wanted the baby to be dead evidenced by the testimony of PW3 who she told that she wanted to save her other breast-feeding child. 7.3 Mr. Sifali argued that the trial Court looked at the trail of blood found in the house which showed that the Appellant gave birth in the house and went to dump the baby in the pit latrine . J 10 7. 4 Mr. Sifali referred the Court to the case of Kashenda Njunga and others v The People 1 in which the Supreme Court held that: "It is not necessary in all cases for medical evidence to be called to support a conviction for causing death. Except in borderline cases, laymen are quite capable of giving evidence that a person has died. Where there is evidence of assault followed by a death without the opportunity for a novus actus interveniens, a court is entitled to accept such evidence as an indication that the assault caused the death." 7. 5 Mr. Sifali urged this Court to accept the evidence of the prosecution and circumstances established in the trial Court and uphold the conviction and sentence of the Appellant. 7.6 Regarding the second ground of appeal which pleads the defence of diminished responsibility, Mr. Sifali submitted that PW l's evidence was that the Appellant had never suffered from Epilepsy in their 17 years of marriage. Further, that the medical report showed that despite the Appellant being epileptic, she had no mental illness justifying the plea of the defence of diminished responsibility. He argued that going by Section 12A (3) of the Penal Code, the burden of proof was on the defence in the Court below to prove the defence of diminished responsibility on a balance of probabilities. J 11 8.0 APPELLANT'S SUBMISSIONS IN REPLY 8.1 Ms. Marabesa made brief submissions in reply urging the Court to overturn the conviction and sentence of the lower Court. She argued that there were gaps in the prosecution's case which make it not to meet the threshold of proof beyond reasonable doubt particularly on whether the baby was born alive or as a still-born baby. 8.2 Ms. Marabesa referred the Court to the case of Phiri and others v The People 2 • The facts in that case were that the Appellants were convicted of murder. The first Appellant was a security guard and the second and third Appellants were watchmen. According to the evidence of the single eyewitness the deceased had been beaten to death by the appellants; the account of the beating and of the weapons used was in serious conflict with the medical evidence of the injuries inflicted. The trial judge did not direct his mind to the conflict between the eyewitness's evidence and the medical evidence. The Court of Appeal held that: "Where the conflict between the eyewitness's evidence and medical evidence goes beyond acceptable limits of exaggeration, the eyewitness must be regarded as an untruthful witness." J 12 , . " 8.3 Ms. Marabesa submitted regarding the alternative ground that the Appellant had proved the defence of dimir_ished :-esponsibility by providing a medical report to show the Appellant's medical condition. She concluded by urgin6 us to overturn the conviction and sentence in the lower Court . 9.0 DECISION OF THIS COURT 9. 1 \Ve have perused the record of appeal and considered th e submissions of both Counsel. 9.2 The main contention of Ms. Marebesa was that the i::rosecution's case did not meet the threshold warranting a conviction of murder as there was no evidence to prove the baby's cause of death. Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia provides that: 'Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.' 9.3 The foregoing illustrates that the cause of death of a person is an essential ingredient of the offence which must be proven beyond all reasonable doubt. J 13 9.4 The prosecution did not produce a postmortem report to show the cause of death of the baby. Counsel for the Respondent cited the Kashenda Njunga case to demonstrate that it is not a necessity in all cases to have medical evidence to support a conviction of causing death. 9. 5 In that case, the Courts clarified that laymen could give evidence that a person has died, such that where there was evidence of an assault followed by death without opportunity for any new intervening act, the Court could accept such evidence as an indication that the assault caused the death. Clearly, the ref ore where there is no medical evidence as to the cause of death, if there is evidence that a person was alive and then died following some act, the Court can accept that act as the cause of death. 9.6 It was further established in the case of Patrick Sakala v The People 3 that depending on the circumstances of the case, the complete absence of a postmortem report is not fatal to the prosecutions case. Chitengi, J. S said that, 'Lack of expert evidence as to the cause of death is not fatal where the evidence is so cogent and compelling that no other rationale hypothesis can be advanced for the deceased's death.' J 14 < I " 9. 7 The foregoing illuminates that the lack of medical evidence i.3 not fatal to a case ·where the evidence is so logical and compelling that no assurr_p-=ions can be advanced for the dea-=h of the deceased. 9.8 The "Starting point is that there must be e'lidence that a perscr_ is al~ve. In the present case, there must be evidence that the baby in questicn was born alive, that it was either seen or heard crying. 9.9 A perusal of the Judgment of the lower Court reveals that the trial Court d r ew her conclusion from the circumstantial :!vidence before her t o ded-..1ce that the baby proceeded from its :nother's womb in a living state when it \Vas born. The Court i::~ound that the baby was fo-_ind wrapped in a chitenge \Vhich evidence contrc..dicted the Appellant's evidence who said that the baby was not wrapped in 3_ chitenge but that she had thrown a clot:i into the ~atrine that she had used to '"ripe the blood from her legs. The t:ial court ac =epted the evidence of PW2 who Etatec: that when the toilet cover was removed, she sa\v· the baby covered in Chitenge and the further eviden ce of PW4 who alsc said that the baby was covered in chi tenge. 9.10 There is no dispute that the Appellant waE pregnant and that during her pregnancy, she denied the pregr_ancy and that even alter delivering the baby, sh e could not provide cogent answers J 15 to the husband, PW 1. That notwithstanding, the Appellant never admitted that the baby was born alive. The only evidence to suggest that it might have been alive came fr8m Pv\.'4 who said that she had indicated that she was s till breast feeding one child and therefore needed to save him. 9.11 It is not definite that the baby was alive when it proceeded from the Appellant's womb as no one had seen the baby alive or h eard : he baby crying at the time. It is only the Appellant who knows ~ vrhat state the baby might have been born. Her evidence was tha[ she bled a lot when she went to the pit latrine and passed out only to realize that the baby had dropped in the pit lEtrine. 9.12 Ms . Marebesa argued that in the absence of a postmortem report to indicate what caused the death of the baby, we are left to speculate as to actual state of the baby at the time it proceeded from the Appellant's womb. 9. 13 I~ determining whether the baby was alive, the trial 2ourt accepted the evidence of the prosecution witnesses on what the Appellant is alleged to have said about saving her breastfeeding c:iild. The Court relied on this evidence of what the Appellant s-..1.pposedly said to PW3 and formed the view that if the ch ild had been born dead, there 'Nould have been no question of the Appellant saving one child over the other. PW3 also stateci that the Appellant told h im that she gave birth to a deaci baby. _ 16 9.14 The Judge concluded that the Appellant could only have tried to save the one child if the baby was born alive 9. 15 In this case, there is no evidence of the baby being born alive or of its cause of death. The inference drawn by the learned trial Court below is not the only reasonable inference possible that could be drawn from the circumstances of this case. Whether or not the baby was found wrapped in a chitenge is not conclusive of the fact that the baby was born alive. Indeed, in the absence of a postmortem report, it is difficult to conclude beyond all reasonable doubt that the baby was alive and was killed by the act of dumping the baby into the pit latrine . The possibility of the baby having been born still is reasonably possible. This is confirmed by the fact that no one saw the baby alive nor had occasion to infer sign of life of a baby. 9.16 In the case of Bwanausi v the People 4 the Supreme Court set aside a conviction on the basis that the possible alternative causes of an inhibition which resulted in the death of a patient were real and credible. The Supreme Court held that: 'Where a conclusion is based purely on inference that inference may be drawn only if it is the only reasonable inference on the evidence; an examination of alternatives and a consideration of whether they or any of them may be said to be reasonably possible cannot be condemned as specu la ti.on. ' J 17 9. 1 7 Based on the foregoing, we take the view that the finding of the trial judge that the Appellant was guilty of murder was perverse given that it was not premised on any evidence and the cause of death of the baby, which ought to have been proved beyond all reasonable doubt, was uncertain. 9.18 Consequently, given the reservations above, we find that the conviction of the Appellant by the lower Court was not sound. The Appellant's first ground of appeal succeeds. The second ground of appeal being an alternative argument, falls away. 10.0 CONCLUSION 10. 1 The appeal having been successful, we set aside the conviction and sentence of the Appellant in the Court below. C. F . R. Mc eng DEPUTY JUDGE PRESIDENT ~ rp e -Ph i r COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J 18