Mwabuka v The People (SCZ Appeal 472 of 2013) [2014] ZMSC 29 (9 March 2014)

IN THE SUPREME COURT OF ZAMBIA 472/2013 HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ/APPEAL № BETWEEN: NICHOLAS BWALYA MWABUKA Appellant AND THE PEOPLE Respondent CORAM: PHIRI, JS, LENGALENGA AND HAMAUNDU, AG. JJS On 11th January, 2014 and 10th March, 2014 For the Appellant Clinic for : Miss M Manda – National Legal Aid Women For the Respondent : Mr. B. Mpalo, State Advocate – National Prosecutions Authority J U D G M E N T LENGALENGA, AG. JS, delivered the Judgment of the Court. Cases referred to: 1. MBOMENA v THE PEOPLE (1967) ZR 89 2. SIMUTENDA v THE PEOPLE (1975) ZR 294 J2 The appellant was convicted of murder contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence are that the appellant on 4th August, 2011, at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, did murder one Edward Mulenga. The appellant was sentenced to death and he now appeals against the conviction and sentence. The prosecution case rested on the evidence of PW1, PW2, and PW3. Briefly, the prosecution evidence was to the effect that on 4th August, 2011, PW1 Robert Kasonde Kabamba was on duty at the Twin Tower in Garneton when he received information from Mr. Mupila that his older brother Edward Mulenga had been killed. He later found his brother’s body at Kitwe Central Hospital mortuary and he observed that there were three injuries on his head and another on his face. Two days later, PW1 attended a post-mortem examination that was conducted on his brother’s body at Kitwe Central Hospital mortuary by the doctor. According to PW2, Sergeant Choobe Choobe ZP 34138 of Mindolo Police Station on 4th August, 2011 around 06:35 hours J3 whilst he was on duty outside the police station, he saw a person who was naked with a plank in his hand and within a few seconds, he saw another person who was riding a bicycle coming from the opposite direction of the naked man. Then he saw the naked man hit the cyclist and he fell down. PW2 withdrew a firearm and rushed to the scene and the naked man tried to flee and he fired a warning shot in the air. Sergeant Choobe Choobe managed to apprehend him with the assistance of members of the public. He learnt that the naked man was Nicholas Bwalya Mwabuka whilst the man who was hit and later died was Edward Mulenga. When PW2 accompanied him to the hospital he was unconscious and was pronounced dead on arrival. PW3, Detective Sergeant Lebson Kabinda’s evidence was to the effect that on 5th August, 2011, he was allocated a docket of murder in which the suspect was the appellant herein. He interviewed him concerning the offence, warned and cautioned him in Bemba and he denied the charge and was arrested. On 8th August, 2011, PW3 attended the postmortem examination conducted at Kitwe Central Hospital mortuary. J4 The appellant gave evidence on oath when he was put on defence. He claimed that he left the cyclist seated and that he was only bleeding and he had not fainted when the appellant was apprehended. He, however, confirmed that he was very near the cyclist when he fell and he observed blood coming from his right ear. At the close of the defence case, the appellant was found guilty of murder and convicted accordingly. He was sentenced to death. The appellant filed only one ground of appeal which reads as follows: 1. That the learned trial court erred in law and in fact in failing to consider the available evidence of possible defence of diminished responsibility. This ground of appeal is supported by heads of argument. Learned Counsel for the appellant, Miss Manda submitted that the court below in convicting the appellant relied on the evidence of PW1 who was the only eye witness to how the deceased got injured. She referred us to his evidence at pages 4 to 7 of the record of appeal and particularly to page 4 and paragraph 25 where PW1 stated: J5 “…. I saw a person who was naked with a plank in his hand and within a few seconds, I saw another person cycling on a bicycle coming from the opposite direction to that in which the naked person was going. I saw the naked man get the plank he was holding and hit the cyclist who fell down.” Further in cross-examination he continued at page 7 and paragraph 20: “… I had occasion to speak to the suspect. He did not look okay. He was naked and violent. The way he spoke. He said he was from Kamfinsa and was ready to be shot….” She argued that although there was no medical evidence called by the court or defence of diminished responsibility raised during the trial, it is their submission that from PW1’s evidence, the appellant’s behaviour was not normal. She submitted that he was naked in broad day-light, violent and stated that he was ready to be shot. It was further their contention that the court should have considered the defence of diminished responsibility. Miss Manda further referred us to section 12A of the Penal Code, Act № 3 of 1990 which provides: “12A (1) Where a person kills or is a party to the killing of J6 another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or is induced by disease or injury) which has substantially impaired his mental responsibility for his acts or omissions in doing or being party to the killing. (2) The provisions of subsection (2) of section thirteen shall apply with necessary modifications to the defence of diminished responsibility under this section. Provided that the transient effect of intoxication as described in that subsection shall be deemed not to amount to disease or injury for purposes of this section. (3) On a charge of murder it shall be for the defence to prove the defence of diminished responsibility and the burden of proof shall be on a balance of probabilities. (4) Where the defence of diminished responsibility is proved in accordance with this section, a person charged with murder shall be liable to be convicted of manslaughter or any other offence which is less than murder.” Learned Counsel for the appellant argued that although the defence did not raise the defence of diminished responsibility, the court was under a duty to consider that as a possible defence from the available evidence, especially that of PW1. She relied on the holding in the case of MBOMENA v THE PEOPLE 1 . In that case, we held that where there is evidence supporting a defence not raised by the accused, that defence must be considered by J7 the trial court. This was later followed in SIMUTENDA v THE PEOPLE 2 when this court held that a court is not required to deal with every possible defence that may be open to an accused person unless there is some evidence to support the defence in question, i.e. “evidence fit to be left to a jury.” Miss Manda submitted that in this case, there was evidence from PW1 that the appellant may not have been normal at the time of commission of the offence. They, therefore, prayed that this appeal be allowed and the conviction be set aside. We have considered the submissions by learned Counsel for the appellant and examined the evidence on record. There were no submissions on behalf of the respondent on this ground or heads of argument filed into court even after leave was granted for Counsel to do so. The gist of the submission in support of the ground of appeal is that the court should have availed the appellant the defence of diminished responsibility even if the same was not raised by the defence itself. A close examination of the evidence on record shows that the deceased was attacked by the appellant in full view of the J8 police station according to PW2’s evidence. Appellant was naked and violent. He ran away from the scene but he was apprehended within 15 metres from where he had hit the cyclist. On apprehension, the appellant did not mention having been in hospital. Further, he denied the offence under warn and caution. We observed that from his defence the appellant placed himself at the scene of the offence when he stated that he was very near to the cyclist when he fell. He said that he looked closely at him and blood was coming from his right ear. The appellant stated further that the on-lookers were telling PW2 what happened but he did not want to listen. He also said that he did not have a chance to see if the cyclist had any bruises. He had earlier stated in cross-examination that when he was apprehended he left the cyclist seated. The appellant argued that he was only bleeding and had not fainted. However, he admitted that he heard what PW2 said that he was not conscious. From the foregoing, we are of the considered view that the appellant did not appear like a person who was of diminished responsibility. In fact he tried to distance himself from the J9 commission of the offence. He stated that the deceased cyclist lost control of his bicycle when he tried to avoid hitting the appellant with the bicycle. The appellant claimed that in the process he careered off the road, slipped and fell down. He denied having a plank as alleged by PW2. We are satisfied that the appellant put up a defence in which he justified his presence at the scene, denied hitting the deceased with a plank and tried to persuade us that the deceased accidentally fell from his bicycle. From the appellant’s defence, we observed that he carefully reasoned his defence. His defence therefore, cannot be considered to be from a man with diminished responsibility. We are not persuaded that he deserved to be availed that defence. We are further of the considered view that the appellant stage managed the attack by pretending to be insane and walking around naked. A person with diminished responsibility could not have put up such a defence. He also could not have been able to recollect the deceased’s condition at the scene of the attack, even such details about blood coming out of the deceased’s right ear and that he had not fainted. J10 We are of the view that the reason for the inconsistency in the appellant’s defence and the arguments in support of the sole ground of appeal is that the ground of appeal was an afterthought. A desperate attempt to save the appellant after his defence in the court below failed and he was convicted of murder. We accept that the principles of law in our decisions in the cases of MBOMENA v THE PEOPLE and SIMUTENDA v THE PEOPLE are still good law. However, we do not accept that they are relevant to this case. We, therefore, find that the appellant’s ground of appeal lacks merit and it accordingly, fails. On the whole, the appeal fails and it is dismissed. We uphold the conviction and sentence by the trial court. …………………………………………………… G. S. Phiri SUPREME COURT JUDGE J11 ……………………………………………………. F. M. Lengalenga ACTING SUPREME COURT JUDGE ……………………………………………………. E. M. Hamaundu ACTING SUPREME COURT JUDGE