Bernard Gilbert Chilala v People (SCZ 50 of 2002) [2003] ZMSC 147 (5 August 2003)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 50 OF 2002 HOLDEN AT KABWE (CRIMINAL JURISDICTION) BETWEEN: BENARD GILBERT CHILALA APPELLANT vs THE PEOPLE RESPONDENT CORAM: SAKALA, CJ., CHIBESAKUNDA AND SILOMBA, JJS. On 5th November 2002 and 5th August, 2003 For the Appellant: Lt. Col. C. Mudenda, of the National Legal Aid Clinic For Women For the Respondent: Mrs. E. M. Chipande, Deputy Chief State Advocate JUDGMENT Sakala, CJ., delivered the judgment of the court. Cases referred to: L Kazembe & Zebron vs. The People (1969) ZR 22 2. 3. Lupapa v The People (1977) ZR 38 Kwiimbe v The People (1982) ZR 32 4. Bratty v Attorney-General for Northern Ireland (1961) 3 ALLER 523 I he appellant was sentenced to suffer the ultimate penalty of death by hanging following upon his convictions on four counts of murder contrary to Section 200 of the Penal Code, Cap. 87 of the Laws of Zambia. The particulars of the offence on the first count were that on the 21st of January, 1997, at Monzc in the Monze District of the Southern Province of the Republic of Zambia, the appellant murdered Dickson Chimuka. On the second count, the particulars of the offence were that on the 28th of January, 1997 at Mazabuka in the Mazabuka District of the Southern Province of the Republic of Zambia, he murdered Seaver Phiri. The particulars of the offence on counts three and four were that on 27th January 1997 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, he murdered Elizabeth Chilando Kombe and Leonard Kapepele Kombe, respectively. The appellant appealed against the convictions and the sentences. On the first count the prosecution case centered on the evidence of PWs6, and 7, the daughter and son of the deceased Dickson Chimuka. It also centered on the evidence of PWs8, 9, 10, and 1 1. The evidence of these witnesses was not challenged. The gist of evidence of PWs6, and 7 was that sometime in January 1997, they were visited by a stranger who came after lunch asking for food. Their father, the deceased, gave the stranger some food. The stranger, who was subsequently identified as the appellant, stayed with their father all day. In the evening, the appellant and the deceased left carrying an axe, saying that they were going to dig some herbal medicine. Later the appellant came back alone. He explained the absence of the deceased that he, the deceased, had gone to another farm to collect fertilizer. 'Hie following morning, the appellant asked PWs6, and 7 to go and buy beer and a chicken. The appellant spent that day drinking beer with his friends in the village. In the evening, the appellant cooked nshima for the children. He spent the night in the deceased’s bedroom while PWs6, and 7 slept at a neighbour’s house. The appellant disappeared in the morning. According to PW6, the appellant had a scar on the upper lip and a scar on his right eye. PW8 testified that he had joined the appellant and others in drinking beer at the deceased Chimuka’s house. PW9 testified of the disappearance of Chimuka whose body was found across the river in thick branches. PW10 was a Police Officer who visited the scene where Chimuka’s body was found decomposed. It had a big hole on the skull. I he lower chin was missing and he had a deep cut on the left thigh and the clothes were tom. This witness is the one who received a report that Chimuka was missing. He also witnessed the identification parade where the appellant refused to take part on the ground that a lot of people had already identified him. He found a small hoe at the scene. PW1I, also a Police Officer, conducted an identification parade in connection with the murder of Dickson Chimuka on count one. According to this witness, the appellant refused to take part in the parade saying that he was fecd-up of the identification parades. The evidence in relation to count 2, involving the deceased Seaver Phiri, was given by PWsl, and 4, the daughters and PW2 the son of the deceased. The evidence of these witnesses was that on 28th January 1997, the deceased Scaver Phiri, their father, left home for the field at 0800 hours. Later about mid-day, somebody informed them that their father had been arrested by the Police for stealing bags of maize but that the Police were willing to release him on payment of K300,000. The person who informed them about this arrest was a stranger. He had come with a small bag belonging to the deceased. The stranger, who was subsequently identified as the appellant, spent a lot of time at the deceased’s house where nshima was prepared for him. Subsequently, the appellant left, promising that he would bring their father but he never returned back. Later their father was found dead the following day by PWs2, and 4. In the meantime, the appellant had left a blood stained raincoat belonging to the deceased which was discovered after the body was found. According to the evidence of PW1, the appellant had thick lips and that he had a scar on his forehead. PW2 further testified that the appellant left with K20,000 given to him to help in the release of their father. Both PW1 and PW4 identified the appellant at an identification parade at the Police. The evidence of PW3, a Police Officer, was that he received a report from PW2 on 28th January 1997 that his father had been arrested and believed to be in police custody, but upon checking the cells the deceased was not there. Later PW3 received a report that Seaver Phiri’s body was found in the field. He went to the scene of the crime in company of three other police officers and the children of the deceased. They found the body covered in maize stalks, grass and branches. He noticed that the body, which was almost decomposed, had deep cuts in the head and there was an iron bar beside the body. Due to the state of the body, it was decided to have it buried at the scene. The prosecution case against the appellant on the third and fourth counts centered on the evidence of PWI2, the son of both deceased, PW13, a worker at a neighbour’s farm, and PW14, who was at the material date looking for piece work. According to the evidence of PW12, he was residing with his deceased parents in Lusaka East on 27th Janurary 1999 when a stranger came looking for piece work. His father, the deceased in count four, introduced the stranger to him as somebody who had come a day before. According to PW12, he had a look at the stranger and he was able to describe what he was wearing and how he was appearing. He left for work and returned late that night. On arrival at home, he found that everything was in disarray as things were thrown all over the place. He found several items belonging to the deceased were missing. A trunk, blanket, tie and pyjama top w'ere also missing. He attended an identification parade at Woodlands Police Station where he identified the stranger as the appellant. PW13 testified that on 27lh January, 1997 she was working at Rupiah Banda’s farm when she saw a stranger at the deceased Kombes’ farm. The stranger had employed two women, one of them was PW14, for piece work at an agreed fee. According to her evidence, she was suspicious of the deal and together with the two women, they decided to go to the Kombes’ house and confronted the stranger but he was annoyed at seeing them and told them that Mr. Kombe was his grandfather. Later, PW13 saw the stranger leaving with a wheelbarrow carrying a box and explained that they were just tyres and items he was taking to Bauleni Compound. PW13 attended an identification parade at the Police at which she identified the stranger as the appellant. She described the appellant to have had a small scar on his face and big eyes and thick lips. PW14 testified that she had been engaged by the appellant to work on the field after agreeing on a fee. Around 1200 hours, the appellant brought lunch. This witness was also called to identify the appellant at the Police Station. PW15, the charcoal burner identified the stranger as the appellant who joined them and lais colleagues in Chilenje Forest on 7th April, 1999. He apprehended him with others. PW16, is the Police Officer who attended a postmortem examination on the bodies of Mr. Kombe and Mrs. Kombe on 30,h January, 1999. PW17 is the Police Officer who received a report on 7lh April, 1999 from a member of the public that they had apprehended a person believed to be the ‘serial killer’. He rushed to Chilenje Forest and found the appellant lying down with his hands and legs tied. The appellant had with him a bag containing various items. PW18, also a Police Officer, conducted an identification parade in the murder case of Mr. and Mrs. Kombe. Four witnesses, PW12, PW13, PW14 and another person identified the appellant. PW19 recorded a warn and caution statement from the appellant on 4th July, 1999 and arrested the appellant for the murder of Chimuka and Phiri. PW20 arrested the appellant for the murder of the Kombes. The appellant gave evidence in defence. The gist of his evidence was an admission that he was involved in the murder ol the deceased persons but that he was merely being used as he was being given drugs when he lived at Bhagoos house in Mazabuka. He admitted that he was present when all the four deceased were killed but insisted that his role was merely to hack them after they were already dead to conceal the fact that blood had been sucked from their bodies. The learned trial Judge considered the evidence which was not in dispute. She was satisfied that the evidence on record showed that the appellant was either directly responsible for the four deaths or at least participated in the four murders.. She rejected the appellant’s defence that he did not know what he was doing. She found that on all the four counts the evidence against the appellant was overwhelming. The court accepted the evidence of identification by all the witnesses on the four counts. The court considered the case of Kazembe & Zebron vs. The People (1) on the defence of automation. She rejected automatism as a defence on the facts before her. She concluded that the appellant knew what he was doing and he could not hide behind the defence of automatism. She found that the prosecution case had been proved against the appellant beyond reasonable doubt. She found the appellant guilty on all the four counts and convicted him accordingly. Hence the appeal before this court. On behalf of the appellant, Col. Mudenda advanced three grounds of appeal namely; that at the time of committing the offences the appellant was under the influence of external forces of which he had no control, that the trial court erred in law in omitting to order determination of the state of mind of the appellant at the time of commission of the offences; and that the trial court erred in law in failing to comply with the provisions of the Criminal Procedure Code to order medical examination of the appellant. Col. Mudenda filed written heads of argument based on grounds two and three. But in his oral arguments he also submitted on all the three grounds. The appellant also filed written heads of argument based only on the first ground. Part of the appellant’s written heads of argument on ground one reads as follows: “At the time of the commission of the offences, I was not myself. I was under certain foreign and supernatural forces of which I had no control. Even myself I have never understood the very basis of my actions then.” We heard submissions and arguments on ground one that it was apparent from mere reading of the record of appeal that Bernard Gilbert Chilala of February, 1999 to August, 2000 was not the same person as that who appeared in court in August 2000 and thereon in terms of his character. According to Counsel, the appellant did not fully realize, at the time of his arrest, what had happened. He only realized after his imprisonment. Counsel submitted that the appellant suffered automatism at the time of the commission of the offences. On ground two, col. Mudenda submitted that the behaviour of the appellant in count two of going back to the victim’s house, having a meal with the deceased’s children and spending four hours with them after the incident was not consistent with a normal person. It was argued that the appellant’s conduct in count one of going back to the deceased’s house, buying a chicken, having nshima with the deceased’s children and spending a night in the deceased’s bedroom were also not consistent with a normal person. It was equally pointed out that on count three and four he went back to the residence of the deceased, cooked nshima, interacted with casual labourers and had a meal with them. This, it was submitted was also not behaviour consistent with a normal person. On ground three Col. Mudenda pointed out that Section 17(2) of the Criminal Procedure Code imposes, on a trial court, the duty to not only to have a certificate produced but also to have the medical officer, who carried out the examination prove the matters stated therein as the content of the report went to the very root of the charge. On this ground Counsel relied on certain passages in the case of Lupapa v The People (2) at pages 39 and 40. Counsel contended that Dr. Msoni was not called and therefore the lack of compliance with that particular provision of the Criminal Procedure Code, disadvantaged the appellant. Counsel urged the court to allow the appeal, quash the convictions and set aside the sentences. On behalf of the State, Mrs. Chipande supported the convictions. Counsel pointed out that three of the grounds of appeal centre on the defence of automatism while one of them relates to the provisions of Section 17(2) of the Criminal Procedure Code. Mrs. Chipande contended that for the defence of automatism to succeed, it is mandatory that the appellant must lay the foundation. She submitted that the evidence of the appellant alone cannot suffice unless supported by medical evidence as to the alleged mental capacity. She further submitted that no foundation was laid. Counsel cited the passages from the case of Kwiimbe v The People (3) at page 33 in support of her submission. She pointed out that in the case at hand, there was medical evidence which disputed mental incapacity. She submitted that the defence of automatism should fail. She contended that the actions of the appellant were not synonymous with an abnormal person as he was able to explain where the victims in each count had gone, which explanation was false. Mrs. Chipande pointed out that the Criminal Procedure Code does not place mandatory requirement for the summoning of a medical officer. She urged the court to dismiss the appeal as lacking in merit. We have addressed our minds to the salient facts of this case which are not in dispute. We have also examined the judgment of the trial court and considered the submissions of both learned Counsel. At the outset, we must say that Col. Mudenda did his best in a difficult case where all the facts including the evidence of his client seem to be against his submissions. The gist of Col. Mudenda’s spirited arguments and submissions is that the appellant suffered from automatism. He criticized the trial Judge for not ordering the determination of the state of mind of the appellant at the time of the commission of the offences. In dealing with the defence of automatism, the learned trial Judge quoted part of a passage in the case of Kazembe & Others v The People (1) We propose to quote the full passage which is in the middle of page 25. The court in that case said:- “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 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.” Sec also the recent case of Cook v Atchison [4] in which justices were directed to convict a man who had 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 overcome by a sudden disabling illness.” The learned Judge pointed out that applying these principles, she had no hesitation in saying that the defence in this case completely failed to lay any foundation for the defence of automatism. The trial court held that there was nothing for the prosecution to negative. On the undisputed facts of this case, we totally agree with the trial Judge. In the case of Kwiimbe v The People (3) a case cited by Mrs. Chipande, this court held that w(i) The burden of proving insanity on a balance of probabilities lies upon the accused.” And that “(ii) Sufficient medical or scientific evidence supporting the defence that the accused was mentally incapacitated is required to displace the presumption”. Those holdings are still good law. 'Hie appellant never proved insanity and he never adduced evidence to support his defence. • h In Bratty v Attorney-General for Northern Ireland (4) at 532, Lord Denning defined automatism as follows u.......... an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such an act done whilst suffering from concussion or whilst sleepwalking.” The conduct of the appellant in all the four counts never suggested that he was not conscious of what he was doing. l ie was able to cook nshima, to drink beer and to explain where his victims had gone. He could not claim to have suffered any concussion or to have been cooking nshima whilst sleepwalking. We take note that al] the murders were committed in broad daylight. Later, Lord Denning in Bratty case stated the criteria for consideration of automatism as a defence in the following terms:- “So also it seems to me that a man’s act is presumed to be a voluntary act unless there is evidence from which it can reasonably be inferred that it was involuntary. To use the words of Devlin J., the defence of automatism “ought not to be considered at all until the defence has produced at least prima facie evidence” see Hill v. Baxter [1958] I All E. R. at p 196; [1958] 1 Q. B. at p 285; and the words of NORTH J., in New Zealand “unless a proper foundation is laid, “see R v. Cottle [1958] N. Z. L. R. at p 1025. The necessity of laying this proper foundation is on the defence: and if it is not so laid, the defence of automatism need not be left to the jury, The evidence of the prosecution and the defence established, from the appellant’s conduct before and after the commission of the offences, that he was conscious of what he was doing. The defence never laid the proper foundation necessitating the court to consider the defence of automatism. But be that as it may, the court considered the defence of automatism and held that on the evidence on record, it must fail. We agree with the learned trial Judge. This appeal has no merit. The appeals against convictions and sentences are, therefore, dismissed. E. L. SAK. ALA CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE