Kazambe and Anor v People [1969] ZMCA 4 (18 March 1969)

KAZEMBE AND ZEBRON v THE PEOPLE (1969) ZR 22 (CA) COURT OF APPEAL BLAGDEN CJ, EVANS AND MAGNUS JJ 18th MARCH 1969 5 Flynote and Headnote [1] Criminal law - Automatism - Defence comes under section 10 of Penal Code. Section 10 of the Penal Code includes automatism as a possible defence. [2] Criminal law - Automatism - Burden of proof on prosecution beyond 10 reasonable doubt. If a question of the defence of automatism arises, the burden lies on the prosecution to negative the defence beyond reasonable doubt. [3] Criminal law - Automatism - Section 10 of Penal Code - Not applicable if acts caused or may be caused by disease affecting mind. 15 If the acts of the accused are or may be attributable to disease affecting the mind, the accused cannot proceed under an automatism theory (pursuant to section 10 of the Penal Code) but must instead prove, by a balance of probabilities, that he meets the test of the insanity defence (section 13 of the Penal Code). 20 [4] Criminal law - Automatism - Raising the defence - Proper foundation - Evidence necessary. Before the defence of automatism arises in a case (with the resulting burden of proof on the prosecution), the defence must lay a proper foundation for it; normally, medical evidence must be produced, 25 and the ipse dixit of the defendant does not suffice. [5] Criminal law - Causation of death - "Accompanied" interpreted in section 184 (e) of Penal Code - Close nexus in time, transaction, and possibly place. "Accompanied", as used in section 184 (e) of the Penal Code, 30 connotes a close connection in time, possibly also in place, and certainly in transaction. Cases cited: (1) Bratty v Attorney-General for N Ireland, [1963] AC 386; [1961] (3) All ER 523; 35 (1961) 46 Cr. App. R 1. (2) R v M'Naghten, 1843 10 CI & Fin 200. (3) Cooper v McKenna 1960 Queensland LR 419. (4) Cook v Atchison (1968) 112 SJ 235; (1968) Crim. L Rev. 266. Statute construed: (1) Penal Code (1965 Cap.6), ss.10, 13, 184 (e). Cave, for the appellants.. Chigaga, State Advocate, for the People. 1969 ZR p23 BY THE COURT Judgment By The Court: The appellants in this case, Aleck Kazembe and Peter Zebron, were charged before the High Court with the murder of Chanda Chipaku Lapupa (hereinafter referred to as the "deceased") on or about the 25th day of July, 1968, at Chingola. They were duly convicted and sentenced to death and appealed against this decision. We allowed their 5 appeals and announced that we would give our reasons for so doing later. These now follow. The facts of the case were that on the 24th of July at a village near Chingola there was a funeral ceremony. The two appellants were occupied with the task of carrying the coffin which contained the body of a child of 10 one Musalu. According to the evidence of two witnesses, Janet Yabe and her husband Donald Kateka, whilst the two appellants were carrying the coffin on their shoulders they struck Janet Yabe with it with sufficient force to knock her down twice. Thereafter they proceeded to the house of the deceased, who was Janet Yabe's mother, where, according to the 15 evidence of four eye witnesses, they struck the deceased with it and then, as she lay on the ground, proceeded to trample upon her body. Shortly after that Musalu demanded K4 from the deceased's husband, Mwenya Chilenga, as an admission that the deceased had killed the child. The money was paid, and then the party moved off to the burial ground. There 20 was evidence from some of the witnesses that they were compelled to accompany the coffin to the burial ground and they left the deceased lying on the ground outside her house. When Janet Yabe returned, she found the deceased still lying on the ground outside her house and moved her inside. She was in a very weak 25 condition. Some hours later that night the deceased's house was set on fire by one Samson, and as a result she suffered some burn injuries. She died not long afterwards. A post - mortem examination was performed on her body by Dr Kahre at Kitwe Central Hospital. He gave evidence that the deceased was about 30 60 years of age, that she was suffering from first degree burns on her forehead, chest and upper extremities, totalling about 15 per cent, that there were no other external injuries, and that there were internal injuries to the spleen and pericardium and a fracture of the skull. Dr Kahre said: "In my opinion the cause of death was, No.1, shock 35 following injuries to spleen and pericardium with haemorrage and, No.2, shock following burns. All internal injuries were consistent with blows being delivered on the body with considerable force. ... If the burns were not there, then the patient could have survived for some days. The internal injuries were not themselves fatal. The picture I saw was that 40 death was due to both causes. The complement of the injuries brought about the death of the deceased. Because of the addition of the burns the deceased lost her life." This evidence, which I have quoted exactly as recorded, is not entirely clear, but the burden of it appears to be that the injuries inflicted by the 45 accused would not necessarily by themselves have proved fatal. Similarly, in regard to the shock which the doctor found to be the prime cause of death, it would appear that the shock resulting from the internal injuries would not necessarily have proved fatal by itself. 1969 ZR p24 BY THE COURT The appellants made unsworn statements in their defence and called no witnesses. Their defence was that what they did was done under the influence of the coffin and that they had no control over their actions. They maintained that it was the coffin which hit the deceased and knocked 5 her to the ground, and they denied that they had trampled on the deceased. The first appellant said that they actually jumped over her body, and the onlookers only thought that they were stepping on her. The second appellant also said that they jumped over the deceased. The learned trial judge rejected this defence and found that the 10 appellants had deliberately stamped on the deceased's body, causing her serious internal injuries. He said in his judgment: "I find that for the accused to trample on the deceased - a woman of some 60 years of age - in such a manner as to inflict upon her the injuries I have found they did in fact inflict with, in the view of Dr Khare, considerable 15 force, they must at least have intended to cause her grievous harm . . . I am therefore satisfied that by assaulting the deceased and inflicting upon her the injuries I have described the accused caused the death of the deceased for whilst those injuries were not the only cause of death they were a substantial cause of death." 20 For the appellant, Mr Cave has argued that the final sentence of this passage is a misdirection, and I will refer to his argument in more detail presently. Mr Cave advanced two main grounds of appeal. By the first, he submitted that the learned trial judge had failed to consider properly or 25 at all the defence of automatism or the provisions of section 10 of the Penal Code. Secondly, he argued that there was not sufficient evidence to show that the appellants had actually caused the death of the deceased. Section 10 of the Penal Code deals with intention and motive. So far as it is relevant to the issues of the present appeal it reads as follows: "A person 30 is not criminally responsible for an act or omission which occurs independently of the exercise of his will . . ." [1] Mr Cave's case was that the appellants here were acting under the influence of automatism and that their acts occurred independently of the exercise of their wills. 35 "Automatism" is defined in the Concise Oxford Dictionary as 'Involuntary actions . . . actions performed unconsciously or subconsciously'; and we agree that section 10 of the Penal Code does let in automatism as a possible defence. [2] There would be no burden on an accused person to establish that he was acting under the influence of 40 automatism. The burden would be on the prosecution to negative it and to prove beyond reasonable doubt that the accused was acting in the exercise of his will and not under the influence of automatism. [3] But there is this important qualification. If the automatism is due to any disease affecting the mind of the accused person different considerations 45 apply. By section 12 of the Penal Code "Every person is presumed to be of 1969 ZR p25 BY THE COURT sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved"; and by section 13: "A person is not criminally responsible for an act . . . if at the time of doing the act . . . he is through any disease affecting his mind incapable of understanding what he is doing, or of 5 knowing that he ought not to do the act . . ." It will be apparent from the provisions of these two sections that where the acts of an accused person are or may be attributable to the influence of a disease affecting his mind, then if he wishes to pray that circumstance in aid of his defence, he must discharge the burden of proving, on a 10 balance of probabilities, that he was, at the material time, through a disease affecting his mind incapable of understanding what he was doing or that he ought not to do it. The leading case on the subject of automatism is Bratty v The Attorney-General for Northern Ireland, in which it was held that where the automatism was based solely on a defect of reason 15 from a disease of the mind then the rules in R v M'Naghten [2] applied and there was no room for an alternative defence of automatism by itself. In the present appeal there was no question of either of the appellants suffering from any disease affecting their minds, so there was no burden for them to discharge. 20 [4] But before automatism can be considered an issue, it is necessary for the defence to lay a proper foundation for it, by producing some positive evidence of it. The mere ipse dixit of the defendant himself is seldom enough. As Lord Denning said in Bratty's case "the evidence of the man himself will rarely be sufficient unless it is supported by medical 25 evidence pointing to the cause of the mental incapacity. It is not sufficient for a man to say 'I had a blackout'; for 'blackout' as Stable J. said in Cooper v Mckenna p 419 [3] 'is one of the first refuges of a guilty conscience and a popular excuse." See also the recent case of Cook v Atchison [4] in which justices were directed to convict a man who had 30 pleaded automatism whilst driving a motor car but was able to produce no medical evidence in support, although the justices had concluded that, on balance, there was a probability that the defendant had been over come by a sudden disabling illness. Applying these principles and considerations to the instant case, 35 we have no hesitation in saying that the appellants here completely failed to lay anything approaching a proper foundation for defence of automatism. There was in consequence nothing for the prosecution to negative. All the evidence went to show, as indeed the learned trial judge found, that the appellants by their own volition knocked the 40 deceased down with the coffin and then deliberately trampled upon her prone body. By his second main argument, Mr. Cave submitted that, on the evidence as recorded, the prosecution had failed to prove that the appellants, by their actions in knocking down the deceased with the coffin and 45 trampling on her, had in fact caused her death. They had undoubtedly contributed to it. The learned trial judge's finding was that the injuries 1969 ZR p26 BY THE COURT which they inflicted, whilst not the only cause of death, were a substantial cause of death, and on this finding he convicted. But we agree with Mr Cave's submission that in coming to the conclusion he could so convict, the learned trial judge must have misdirected himself. 5 [5] The matter is governed by section 184 of the Penal Code which sets out certain circumstances in which a person is deemed to have caused death. Paragraph (e) is the relevant provision here. It enacts that "a person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death . . . (e). If his act or 10 omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons." Surprisingly enough, although this provision occurs in other codes besides that of Zambia, there appears to be a dearth of authority on its interpretation. Mr Cave's argument was that this provision had to be interpreted strictly 15 and indeed narrowly and in favour of the accused because a wide interpretation could operate unfairly and, indeed, lead to absurd results. In particular, he submitted that the word "accompanies" must be strictly construed so as to mean that, before a person can be deemed to have caused the death of another, in the circumstances envisaged by paragraph 20(e), it must be established that there was a positive Nexus between the two acts and the two actors. He cited a number of helpful decisions, but none was directly in points as including interpretations of this provision. But we do not think it is necessary to have recourse to decisions. 25 In our view, Mr Cave's submission on the meaning of section 184 (e) accords with both common sense and justice. We would not care to attempt an exhaustive or precise definition of the meaning of the word "accompanies", and we think it likely that the extent of application of this provision will depend very much upon the circumstances of each 30 individual case to which it is relevant. In our view, however, the word "accompanied", as used here, must connote a close connection in time, possibly also in place and certainly in transaction. There can be no "accompaniment" in the sense envisaged by paragraph (e) where there is a substantial difference in time. What amounts to a substantial difference 35 in time will certainly depend upon the circumstances of each individual case. Similarly, even if the two acts did occur close together in time, there would be no "accompaniment" if they were otherwise totally independent of each other. In the instant case, it was a matter of some hours between the time 40 when the appellants inflicted the internal injuries on the deceased and the time when her house was set on fire by Samson and she suffered burns. No evidence was adduced as to Samson's motives for his actions in setting fire to the deceased's house, and in the absence of such evidence it is not possible to say beyond reasonable doubt that his actions were in any 45 way connected with the appellants' assault. We agree that in this case the prosecution failed to prove that the appellants caused the death of the deceased, and it was for this reason that we allowed this appeal. Clearly, however, the appellants were each 1969 ZR p27 BY THE COURT guilty of unlawful doing grievious harm with intent to do such harm contrary to section 202 (1) of the Penal Code. It was a serious case The appellants behaved with savage brutality towards this unfortunate woman. In assessing sentence we took into account the fact that the appellants had been under the strain of a sentence of death for over two 5 months. We fixed the sentence at eight years' imprisonment with hard labour with effect from 30th of July, 1968, the date on which they were taken into custody. Appeal allowed 1969 ZR p27