Benard Hamwiinga v People (APPEAL 120/2020) [2020] ZMCA 241 (28 February 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: APPEAL 120/2020 BENA!m HAMWIINGA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Chishimba and Majula, JJA On 18 th February 2020 and 28 th February 2020 For the Appellants: Mr. I. Nyambe- Legal Aid Counsel, Legal Aid For the Respondent: Mr. P. Mutale- Deputy Chief State Advocate, National Prosecutions Authority. Board JUDGMENT Mchenga, DJP, delivered the judgment of the court. Cases referred to: l. Palmer v R [1971] 1 All. E. R. 1088 2. The People v Njovu [1968] Z. R. 123 3. The People v Abel Zimba HJ/02/2011 4. Dorothy Mutale and Richard Phiri v The People [1997] S. J. 51 5. David Zulu v The People [1977] Z. R. 151 6. Esther Mwiimbe v The People [1986] Z. R. 15 7. Sikunyema v Queen [1963-64] Zand N. R. L. R. 66 8. Director of Public Prosecutions v Risbey [1977] Z. R. 28 J2 9. Mushemi Mushemi v The People [1982] Z. R. 71 10. Lubendae v The People [1983] Z. R. 54 11. Jack Chanda and Kennedy Chanda v The People [2002] Z. R. 29 12. Precious Longwe v The People, CAZ appeal No. 182 of Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia Introduction 1. This appeal emanates from the judgment of the High Court (Newa J.), delivered in Lusaka on 20 th June 2019. 2. The appellant appeared before that court, on a n information containing one count of the offence of murder contrary to section 200 of the Penal Code. He denied the charge and following a trial, he was convicted and condemned to suffer capital punishment. 3. He has appealed against both the conviction and the sentence. Charge and evidence before the trial court 4. The allegation in the information was that on 12 th August_ 2018, at Siavonga, he murdered Maggie Nelis Mafuta, who was his wife. J3 5. It was not in dispute that on 12 th August 2018, Maggie Nelis Mafuta, was struck with a pounding stick by the appellant and she died after suffering a severe head injury. What was disputed were the circumstances that led the appellant into striking his wife. 6. According to the appellant, earlier that day, he had advised his wife not to go to Hanyolo, to buy Masau berries. He left home and went drinking, and on his return, he discovered that she had defied his instruction and travelled to Hanyolo. He confronted her on her defiance, which he attributed to a lover she had in tha t area. 7 . He said she responded through insults and she a l so attacked him with a pounding stick. In an effort to protect himself, he struck her with a pounding stick. When he realised that he had killed her, he fled. Findings of the trial court 8. The learned trial judge considered the availability of the defences of intoxication, self-defence and provocation. 9. She found that the defence of intoxication was not available because the evidence showed that h e not so J4 drunk that he did not know what he was doing when h1::: struck his wife. It actually indicated that he knew wha t he was doing and that it was wrong. 10. As regards the defence of provocation, the trial judge found that although the appellant was provok ed by his wife's insults, the defence was not available becausi:-:: his retaliation bore no relationship to the provocation, as the force used was excessive. 11. Coming to the defence of self-defence, she foun d that it was not available, because she did not believe tha t the appellant was attacked by his wi f e be f ore he struck her. 12. Having found that there were no defences ava i lable t o the appellant, he was convicted of the offence of murde r . The trial judge then considered whether there were any extenuating circumstances because of the fai l ed defences, but found that there were none. Consequen tly, she condemned him to suffer capital punishment. Grounds of appeal 13. Three grounds have been advanced in support of this appeal. It is contended that: JS i. the trial judge erred when she did not consider the availability of the defences of self-defence and provocation, as advanced by the accused; ii. the trial judge erred when she did not consider the availability of the defence of d i minished responsibility; and iii. the trial judge erred when she sentenced the appellant to death, despite the failed defences he advanced, amounting to extenuat i ng circumstances. Arguments in support of the 1 st and 2 nd grounds of appeal 14. Since 1 st and 2 nd grounds of appeal deal with the failure of the trial judge to deal with the available defences, that is self-defence, provocation and diminished responsibility, and it is convenient, we wi ll deal with them at the same time. 15. In support of the argument that appellant acted i n self-defence, Mr. Nyambe, among other materia l s, referred to section 17 of the Penal Code and the cases of Palmer v R1 , The People v Njovu2 and The People v Abel Zimba3 , and submitted that the defence of self-defence J6 was a,rai lab l e to t h e appel l ant beca use after be was at t ac ked by h is wi f e h e f el l down. Sin ce h e wa s on t h e g round , h e could n o t r e tre a t a n d h is only opti on wa s to s trike back . 16 . As re g ards t he d e fen c e o f p rovo cati on, Mr . Nyamb e submitted that it wa s a v ail a ble beca use the appe lJan t lost self - control after his wi fe ' s provocative utterances and his immediate reaction was to strike her . He r eferred to the cases of Dorothy Mutale and Richard Phiri v The People4 , David Zulu v The People5 and Esther Mwiimhe v The People 6 , in support of his argument . 1 7. Coming to the que s tion of int o xica tion lea ding to a s ta te o f d imini shed r espons ibil it y , h e re fer r ed t o t h e c as e of Sikunyema v Queen7 a nd s ubmitt ed t ha t since th e appe llant h a d b e en d ri nking the whol e da y , h e was s o drun k that h e d i d n o t k now what h e wa s doing. He coul d not therefore have intended to cau s e g r ievo us bodily harm . States response to the 1 st and 2 nd grounds of appeal 18. I n re spon s e , Mr. Mut al e submi tt ed that t he re was n o evidence to show t ha t the a ppe ll an t wa s rep ell ing a n J7 attack when he struck his wife. That being the case, the defence of self-defence was not available to him. On the appellant's argument that he wa s offended by his wife's conduct , he submitted that her conduct was not provocative. He went on to say that even if it tu r n0 d out that it was the ca se, his retaliation was ou t o f proportion . Was self-defence , provocation and diminished responsibility as a result of intoxication available? 1 9. The three defences were rejected after the trial judge found that the e vidence before her did not supp ort them. The cases of Director of Public Prosecutions v Risbey8 and Mushemi Mushemi v The People9 , set ou t the a pproa ch that an appe l late court should ta k e when dea ling wi th decis i ons of a t r ial cou rt b ased o n fi n di ng s o f f a ct . 20 . In t he cas e of the Director of Public Prosecutions v Risbey 8 , it was h el d t h at "where the issue is one of credibility and inevitably reduces itself to a decision as to which of two conflicting stories the trial court accepts, an appellate court cannot substitute its own findings in this regard for those of the trial courtn. The h oldi n g in t he c a se o f Mushemi Mushemi v The People9 , JS was that "a conviction which is based on finding of fact which is in direct conflict with the overwhelming balance of the evidence, that evidence having been glossed over, cannot be upheld". 21. In other words, we can only set aside a find i ng of fact, if it not supported by the evidence or whe n we find that it is perverse, having regard to the evidence that was before the trial court. 22. We will first deal with the availabil i ty of the defence of diminished responsibility. section 12A of the Penal Code provides that the defence is available where the accused person is "suffering from such abnormality of the 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". Further, the proviso to sub-section 2 of that provision, makes it clear "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". J9 23. From the foregoing, it is clear that for the defE-)ncc) of diminished responsibility to be sustained there must be evidence that the accused person was suffering from a disease of the mind at the time that he k illed. In this case, there was no evidence whatsoever, that the appellant suffered from such a disease. There was therefore no basis on which the trial judg e could have considered the availability of the defence. In support of his arguments on the defence, Mr. Nyambe referred to the case of S~kunyema v Queen7 , our reading of that case indicates that it was concerned with the de fe n ce o f intoxication and not diminished responsibil it y. 24. As regards the defence of intoxication, in the case of Lubendae v The People10 , the Supreme Court set out the parameters of the defence of intoxication under section 13 of the Penal Code. They held, inter alia, that: the of heavy drinking, even co-ordination of ''Evidence to the extent affecting is insufficient in itsel.f to raise question of intent unless the accused person's capacities were affected to the extent that he may not have been able to form the necessary intent." refl.exes 25. In her judgment, the trial judge considered the extent to which the appellant's drinking could h ave a f fected his ability to form any intention. She conclud ed Uw t JlO his conduct in general, and particularly, his ru n n:Lng away after he discovered that his wife had been f atally injured, showed that he was alert and knew what he was doing. 26. We are satisfied that the trial judge was entitled to find that even if the appellant had been drinking the whole day, he was not so drunk as not to know what he was doing. We find no reason to fault this finding and we uphold her conclusion that the defence of intox i cation was not available. 27. Coming to the defence of self-defence, the trial judge considered it and came to the conclusion that it was n ot available because a witness who was presen t hea rd a single thud and that the appellant's wife was hit on top of the head. She concluded that had he been on the ground when he hit her, he would not have hit her on the h ead. Consequently, she found his explanation not to be credible. 28. As indicated earlier on, we can only set aside a finding of fact if it is in direct conflict with the evidence or it was made after evidence was glossed over. Jll In this case, we find that it was not the case. The t rial judge's finding was supported by the evidence. 29. Having dismissed all the arguments in support of the contention that there were defences available to the appellant, the appeal against convict ion is unsuccessful. Arguments in support of the third ground of appeal 30. In support of the 3 rd ground of appeal, Mr. Nyambe submitted that having concluded that there were failed defences of intoxication and provocation, the trial judge should have found that there were extenuating circumstances. States response 31. Mr. Mu tale referred to the case of Jack Chanda and Another v The People11 , and conceded that a failed defence of provocation, can amount to an extenuating circumstance. Where there extenuating circumstances? 32. In the case of Precious Longwe v The People12 , we pointed out that a failed defence of provocation, can J12 amount to an extenuating circumstance, where the de f ence fails because the retaliation is out of proportion to the provocative act. In this case, the trial judge f ound that the appellant was provoked and that he lost self control as a result. The defence failed, because she found that his retaliation was out of proportion. 33. Consequently, we find that the third ground of appeal has merit and we allow it. There was misdirection when the trial judge proceeded to sentence him to death, in the face of evidence that there were extenuatin g circumstances. Verdict 34. The appeal against conviction fails but the appeal against sentence succeeds. We set aside the death penalty and, in its place, we will impose a term of imprisonment. 35. Other than the fact that he is a first offender and there is no evidence of him having been previous convicted for any of fence, there is barely anythinq mitigatory in his favour. The evidence before the trial court shows that the proceeds of sale of the berries Jl3 were used to finance the upkeep of children who werE~ under his wife's charge. While his wife set out to buy the berries, he went drinking, early in the day. Tho u gh he struck his wife once, the force used was such that it caused death. 36. In this era, where there is an increase of senseless killing of spouses, we are obligated to impose deterrent sentences. We impose a sentence of 25 years imprisonment, with hard labour, and it will run from the date of his arrest. C. F. R. Mchen a DEPUTY JUDGE PRESID F. M. Chishimba COURT OF APPEAL JUDGE ·········~~ ; ·············· COURT OF APPEAL JUDGE