The People v Evelyn Mwansa and Ors (APPEAL No.12/2020; APPEAL No.13/2020; APPEAL No.14/2020) [2024] ZMSC 18 (16 May 2024)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CRIMINAL JURISDICTION) APPEAL NO.12/ 13/ 14/2020 BETWEEN THE PEOPLE AND UBLICOF cCOURToF JUOICIARY i ti MAY 2U2~ APPELLANT EVELYN MWANSA MAVELIC LUNGO CHAMA DANNY CHAMA 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: Muyovwe, Hamaundu and Chinyama, JJS On 1st September, 2020 and 16th May, 2024 For the Appellant: Mrs. A. Mwanza, Senior State Advocate For the Respondents: Ms. K. Sakala, Messrs J. B. Sakala & Company JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Kazembe Zulu v The People, (2015) 3 ZR 1 2. The People v Roydah Siamenda, Appeal No. 128 of2017 (C. A) 3. Simusokwe v The people (2002) ZR 63 (S. C.) Legislation The Criminal Procedure Code, section 15(4) The Supreme Court of Zambia Act, Chapter 27 of the Laws of Zambia 1.0 Introduction J 2 1.1 When we heard this appeal we sat with Mrs. Justice Muyovwe. The learned judge has since retired. In the circumstances, this judgment is by majority. 1.2 This appeal is by the Director of Public Prosecutions on behalf of the people. The appeal is against the finding by the High Court that there were extenuating circumstances in the murder of the deceased herein by the respondents. 1.3 We should further add that, because of the relatively short term of imprisonment, the respondents had already served their sentence by the time that this appeal came up for hearing. 2.0 The Undisputed Facts 2.1 The facts that are not in dispute are that the respondents and the deceased were next door neighbours in the township of Mpatamatu in Luanshya. The 1st respondent was the mother of the two co-respondents, who were both male. On the 24th January, 2015, around 04.30 hours, the three respondents beat up the deceased very severely, just in front of the yard of their house. 2.2 The deceased suffered severe injuries from which he died J 3 shortly upon arrival at the hospital. The respondents were then arrested and charged with the offence of murder. 3.0 The Evidence 3.1 The testimony of the eye-witnesses named Innocent Chapa (PW2) and Elizabeth Namwanda (PW3) was that the three respondents were beating the deceased outside their yard, by the side of the road. The witnesses said that all the three respondents took part in beating the deceased; the 1st and 3 rd respondents were said to have been using bamboo sticks, while the 2nd respondent was said to have been using an iron bar. The witnesses also said that when they asked the respondents why they were calling the deceased a thief, the respondents said to the onlookers that it was because the appellant had been knocking at their gate. 3.2 The testimony of the respondents was that it was in fact only the 2nd respondent who was engaged in a fight with the deceased. Their story was this: that the deceased had broken the lock securing the gate and had entered the yard, with bottles in his hands: that the deceased had then proceeded to smash a window to the house; that at this point the 2 nd respondent, believing the deceased to be a J4 thief, had confronted the latter and hit him in self defence with a bamboo stick: that the 2 nd respondent then chased the deceased round the house and out through the gate until he caught up with him outside the yard of a neighbouring house; that the 2nd respondent then felled the deceased to the ground and proceeded to punch him with his fists while the deceased was hitting him back in the chest area. 3.3 The respondents were vigorously cross-examined, particularly on their testimony that the deceased broke the lock to the gate and entered their yard. Their answers did not impress the learned trial judge at all. 4.0 The Decision by the Trial Court 4.1 The learned trial judge described the respondents' version of the events as unbelievable. She, therefore, found that all the respondents participated in assaulting the deceased as testified to by PW2 and PW3; and also as evidenced by the findings of the postmortem examination which showed that the injuries were inflicted by multiple assailants. The judge dismissed the defence of "self defence" that the 2 nd respondent had advanced on the ground that, according to J 5 the evidence, the 2nd respondent was not in any danger when he inflicted the injuries on the deceased, and that he was merely engaged in a brutal, vengeful attack on him. The learned judge also found that the 2nd respondent used an iron bar to beat the deceased, as testified to by PW2 and PW3 and supported by the postmortem report. 4.2 We must point out that at no stage in her consideration of the evidence did the learned judge consider whether or not on the facts before her 'defence of property' was a defence that was available to the respondents. 4.3 In the end, the learned trial judge convicted all the respondents for the offence of murder. 4.4 In passing sentence on the respondents, the learned judge said this: "The facts of this case show that the deceased went to the accused persons home in the dead of night and was taken to be an intruder. And the accused persons ordinarily would have had the right to defend themselves and their property. The evidence revealed a charged atmosphere which was filled with panic and fear. But for the fact that excessive or disproportionate force was used, the accused persons acted in a manner in which a person living in their locality would have reacted. J 6 In view of the foregoing I find that extenuating circumstances exist in this matter ... " 4.5 With those observations, the learned judge then sentenced each respondent to six years imprisonment. 5.0 The Appeal 5.1 The sole ground of appeal filed by the State reads: "The Trial Court erred in law and misdirected itself when it found that there were extenuating circumstances based on section 201 of the Penal Code Chapter 87 of the Laws of Zambia, when in fact not". 5.2 At the hearing, Mrs. Mwanza, the learned Senior State Advocate, who argued the appeal on behalf of the State, submitted that the facts of this case had revealed that the deceased did not break into the house of the respondents; and that in fact the respondents beat the deceased from outside their yard. Counsel, therefore, argued that it was doubtful whether there was a failed defence of property which constituted an extenuating circumstance. Counsel submitted further that no evidence was adduced to show that people from the respondent's locality had the tendency to beat "suspected thieves" to death in such a brutal manner. J 7 5.3 Mrs. Mwanza also argued in the alternative that, if this court finds that the trial judge was on firm ground in her holding that there were extenuating circumstances, it should nevertheless find the sentence of six years imprisonment as totally inadequate on the facts found by the trial judge. Counsel pointed out those facts as being; that the deceased was unarmed when the respondents were beating him; and that he had retreated from the respondent's yard but was relentlessly pursued by them and brutally beaten, instead of being taken to the Police. 5.4 With those arguments, Mrs. Mwanza urged us to allow the appeal. 5.5 Ms. Sakala, learned counsel for the respondents, on the other hand, supported the trial judge's finding that there were extenuating circumstances in this case. Counsel submitted that, in arriving at that finding, the trial judge took judicial notice of the fact that in areas like Mpatamatu township where the offence took place incidents of thefts, robberies, assault and suspected witchcraft are rampant. Counsel argued that the behavior that the respondents exhibited on the fateful J8 night was the standard reaction of any ordinary person in Mpatamatu township when confronted by a suspected thief. 5.6 Ms. Sakala also submitted that the facts in this case showed that the respondents were frightened, and thought that they were in imminent danger of death or serious bodily harm; this was evidenced by the fact that they were heard shouting, "thief', "thief'. Learned counsel argued that such a state of mind entitled the respondents to the defence of "self defence". She submitted that although the defence may not have succeeded on account of the excessive force used to repel the attack it nevertheless amounted to extenuation. Among the number of authorities that Ms. Sakala referred us to in support of the various aspects of her arguments, we take particular note of the case of Kazembe Zulu v The People1 11. 6.0 Our Decision 6.1 Under the Penal Code, Chapter 87 of the Laws of Zambia, as it was when the respondents committed this offence, the mandatory sentence for the offence of murder J 9 was death, except where there were extenuating circumstances. In this case the learned judge found extenuating circumstances because, according to her, the respondents mistook the deceased for a thief and sought to defend their property. It was further the judge's view that the beating of the deceased in defence of the respondents' property was a course that any person living in their locality would have taken, save that in this case disproportionate force was used. 6.2 In the case of Kazembe Zulu v The Peoplel 11, when discussing the issue of extenuating circumstances, we held as follows: "2. This was a question of fact. The finding of extenuating circumstances had to be evidence based, and not based on speculation and cursory statements or claims. The behaviour of the accused was to be measured against the standard behaviour of an ordinary person of the community. 3. The court could not accept that the appellant killed his ten-month-old son because he practised witchcraft. This was in fact denied by the appellant and not raised as a defence." 6.3 In our view, the judge's conclusion that there were J 10 extenuating circumstances was flawed for two reasons: First, as we have noted above, when the judge was evaluating the evidence, the defence of "defence of property'' did not even arise. The learned judge only brought up the issue during sentence. Secondly, the eye witnesses to the assault on the deceased said that, when they asked the respondents why they thought that the deceased was a thief, the latter replied that it was because he had been knocking at their gate. The only evidence that suggested that the deceased had intentions of breaking into the respondents' house came from the respondents themselves, but the judge totally rejected that testimony, saying that it was rehearsed and had cracked under cross examination. So there was clearly no evidence on which the learned judge could make a finding that the respondents were acting in honest belief that they were defending their property. 6.4 We have also considered the learned judge's view that beating suspected thieves was an ordinary reaction of people living in the respondents' area. This view was not J 11 supported by the evidence before her. That evidence showed that, although the respondents had shouted "thief', "thief', and were beating the deceased from outside their yard, the neighbours who came did not take part in beating the deceased. In fact, the learned judge herself rejected the respondents' story that other people attempted to beat the deceased but were restrained by the 1st respondent. 6.5 It is, therefore, our conclusion that there was no evidence before the judge from which her finding that there were extenuating circumstances could be drawn. Consequently, that finding was wrong. For this reason, we find merit in the appeal by the State; and we allow it. 7.0 The Sentence 7 .1 Since the finding that there were extenuating circumstances in this case was erroneous, it means that the sentence was wrong, both in fact and in principle. And that means that the respondents should have suffered the mandatory sentence of death. Now we pondered the fact that, at the time of hearing this appeal, the respondents J 12 had served their erroneous sentence and were no longer in custody. Consequently, we asked both sides to address us on this issue. 7.2 On behalf of the State, Mrs. Mwanza cited section 327 (1) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia and submitted that the section empowers an appellate court to quash a sentence by a trial court and pass another sentence warranted in law, whether more or less severe. Counsel then urged us to, likewise, quash the six years sentence and pass the sentence of death which was appropriate in accordance with the law. She sought further support for this submission from a case decided by our Court of Appeal namely The People v Roydah Siamendal2 1. This was a case where the respondent had paid a fine which had been imposed by the trial court for the offence of manslaughter. It was argued before the Court of Appeal that it was procedurally improper and unfair to allow the State to proceed with an appeal whose sentence had been served. The Court of Appeal dismissed that argument on the ground that such an approach •' J 13 would mean that the State's right to appeal would be extinguished 1n any case where an absurd or totally inadequate sentence has been served by the time the appeal is heard. 7 .3 On behalf of the respondents, Ms. Sakala cited section 353 of the Criminal Procedure Code and submitted that the section provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal unless any matter raised in any ground has in fact occasioned a substantial miscarriage of justice. Ms. Sakala further submitted that the same section says that in determining whether a matter raised in any ground has occasioned a substantial miscarriage of justice the court shall have regard to whether the objection could, and should, have been raised at an earlier stage in the proceedings. Relying on that section, Ms. Sakala submitted that the State ought to have raised the issue now before us at the sentencing stage. 7.4 Ms. Sakala further argued that, since the respondents have duly served the full term of the initial sentence and •' J14 have reintegrated into society, it will be double jeopardy on their part if this court decides to alter the sentence and substitute a longer one. Learned counsel then referred us to the 2007 Edition of the Prosecution Guidelines of the office of the Director of Public Prosecutions for New South Wales. We have looked at the said guidelines and note that they apply to the jurisdiction of New South Wales where the court holds a separate sentencing session. Hence, they are not of much value in this country where such separate sessions are not held; and this is particularly so in this case where the record shows that no elaborate session was held to arrive at the sentence. 7.5 First of all, we wish to point out that section 327 of the Criminal Procedure Code which Mrs. Mwanza referred us to applies to the High Court, as can be seen by the interpretation given in section 351A which reads: "In this part, 'appellate court' means the High Court". However, the law which gives this court power similar to that set out in section 327 of the Criminal Procedure J 15 Code is section 15(4) of the Supreme Court of Zambia Act, Chapter 27 of the Laws of Zambia. 7.6 Having clarified that issue, we would like, however, to dwell on the arguments raised by Ms Sakala on behalf of the respondents; and particularly the provisions of Section 353 of the Criminal Procedure Code which we have been referred to. The section reads: "353. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on any ground whatsoever unless any matter raised in such ground has, in the opinion of the appellate court, in fact occasioned a substantial miscarriage of justice: Provided that, in determining whether any such matter has occasioned a substantial miscarriage of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceeding". 7.7 We will first dispose of the last point raised by Ms. Sakala in her arguments, that is that the State did not raise the arguments that they are advancing now during the process of sentencing. As we have said, there was no separate sentencing session at which arguments for, and •' J 13 would mean that the State's right to appeal would be extinguished 1n any case where an absurd or totally inadequate sentence has been served by the time the appeal is heard. 7.3 On behalf of the respondents, Ms. Sakala cited section 353 of the Criminal Procedure Code and submitted that the section provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal unless any matter raised in any ground has in fact occasioned a substantial miscarriage of justice. Ms. Sakala further submitted that the same section says that in determining whether a matter raised in any ground has occasioned a substantial miscarriage of justice the court shall have regard to whether the objection could, and should, have been raised at an earlier stage in the proceedings. Relying on that section, Ms. Sakala submitted that the State ought to have raised the issue now before us at the sentencing stage. 7.4 Ms. Sakala further argued that, since the respondents have duly served the full term of the initial sentence and •' J14 have reintegrated into society, it will be double jeopardy on their part if this court decides to alter the sentence and substitute a longer one. Learned counsel then referred us to the 2007 Edition of the Prosecution Guidelines of the office of the Director of Public Prosecutions for New South Wales. We have looked at the said guidelines and note that they apply to the jurisdiction of New South Wales where the court holds a separate sentencing session. Hence, they are not of much value in this country where such separate sessions are not held; and this is particularly so in this case where the record shows that no elaborate session was held to arrive at the sentence. 7.5 First of all, we wish to point out that section 327 of the Criminal Procedure Code which Mrs. Mwanza referred us to applies to the High Court, as can be seen by the interpretation given in section 351A which reads: "In this part, 'appellate court' means the High Court ". However, the law which gives this court power similar to that set out in section 327 of the Criminal Procedure .. JlS Code is section 15(4) of the Supreme Court of Zambia Act, Chapter 27 of the Laws of Zambia. 7.6 Having clarified that issue, we would like, however, to dwell on the arguments raised by Ms Sakala on behalf of the respondents; and particularly the provisions of Section 353 of the Criminal Procedure Code which we have been referred to. The section reads: "353. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on any ground whatsoever unless any matter raised in such ground has, in the opinion of the appellate court, in fact occasioned a substantial miscarriage of justice: Provided that, in determining whether any such matter has occasioned a substantial miscarriage of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceeding". 7. 7 We will first dispose of the last point raised by Ms. Sakala in her arguments, that is that the State did not raise the arguments that they are advancing now during the process of sentencing. As we have said, there was no separate sentencing session at which arguments for, and J16 against, a stiff punishment were advanced by either side. As if that was not enough, the circumstances purportedly constituting extenuation were only revealed by the learned judge when she was meting out the sentence: No finding of any of those circumstances was made when the judge was evaluating the evidence. Clearly, even assuming that the procedure had allowed for an elaborate sentencing session, the prosecution were caught unaware and could not have been expected to address the court on the extenuating circumstances. We, therefore, dismiss that argument. 7.8 We now come to the question whether or not there was a substantial miscarriage of justice. First, we have pointed out that the facts which the learned judge considered to constitute extenuating circumstances were not only erroneously arrived at, in terms of procedure, but were also not supported by the evidence. Secondly, even assuming that there had been extenuating circumstances, the sentence itself was so totally inadequate that it comes to us with a sense of shock. We .. J 17 say so because in the case of Simusokwe v The peoplel3 we said: "We must point out that as a general rule an extenuated murder will still be treated a little bit more severely than a manslaughter case although both might carry the life sentence". On the facts of that case, which also involved the use of an iron bar, we meted out a sentence of twenty years imprisonment. Similarly, this case involved assault with an iron bar, among other aggravating factors. Clearly, we would not expect a trial court to mete out a sentence of six years imprisonment against such aggravating factors. 7. 9 Therefore, in view of the fact that the finding of extenuating circumstances was made without any basis and also of the fact that the sentence that arose from that erroneous finding was totally inadequate, we are satisfied that there was a substantial miscarriage of justice in this case which needs to be redressed. And for this reason, we will not be prevented from doing so merely because the respondents have since served the very unjust sentence. 7.10 In the circumstances, we quash the sentence of six years • J 17 say so because in the case of Simusokwe v The people131 we said: "We must point out that as a general rule an extenuated murder will still be treated a little bit more severely than a manslaughter case although both might carry the life sentence". On the facts of that case, which also involved the use of an iron bar, we meted out a sentence of twenty years imprisonment. Similarly, this case involved assault with an iron bar, among other aggravating factors. Clearly, we would not expect a trial court to mete out a sentence of six years imprisonment against such aggravating factors. 7. 9 Therefore, in view of the fact that the finding of extenuating circumstances was made without any basis and also of the fact that the sentence that arose from that erroneous finding was totally inadequate, we are satisfied that there was a substantial miscarriage of justice in this case which needs to be redressed. And for this reason, we will not be prevented from doing so merely because the respondents have since served the very unjust sentence. 7 .10 In the circumstances, we quash the sentence of six years J18 imprisonment that was imposed by the trial court. In substitution therefor, we pass the mandatory sentence of death on each respondent, as was required by the law at the time. t i ,::,I • E. M. Hamaundu SUPREME COURT JUDGE J. Chi_S,ama SUPREME COURT JUDGE