Brian Kawanga v The People (APP/163/2022) [2023] ZMCA 308 (23 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APP/163/2022 BETWEEN: BRIAN KAWANGA AND THE PEOPLE RESPONDENT CORAM: MCHENGA DJP, MUZENGA AND CHEMBE JJA on 14th June, 2023 and 23rd August, 2023 For the Appellant For the Respondent Mrs. K. Chisala Bwalya - Legal Aid Counsel, Legal Aid Board Ms. G. Nyalugwe - Deputy Chief State Advocate, National Prosecution Authority JUDGMENT CHEMBE, JA delivered the judgment of the Court Cases referred to: • 1. Patson Chembo Chimbala v the people (1986) ZR 7 2. Dorothy Mutale and another v the people (1997) ZR 7 3. Sankalimba v the people (1981) ZR 258 SC Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia Other Works referred to: 1. Criminal Law in Zambia Doctrine Theory and Practice (Lusaka, Chribwa Publishers, 2020) 1.0 INTRODUCTION 1.1 The Appellant was convicted of one count of murder contrary to section 200 of the Penal Code Chapter 87 of the Laws of Zambia and sentenced to death by Mr. Justice D. Mulenga on 22nd April 2022. 1.2 The particulars of offence were that on 27th May 2021, at Kasempa, the Appellant did murder Medson Kayamba. 2.0 THE PROSECUTION EVIDENCE 2.1 The prosecution called five witnesses including PW2 who was an eyewitness. According to the prosecution evidence, on 26th May 2021, PW2 and the deceased, who were members of the local crime prevention unit, went to the Appellant's house to apprehend him following a report of robbery by PWl. 2.2 They arrived at the house around 19 hours and knocked on the door. It was alleged that the Appellant opened the door and struck PW2 on the arm with a pick. He then turned to the deceased who was trying to apprehend him and struck him on the head with an axe. 2.3 The deceased fell down with the axe head imbedded in his head. PWl managed to restrain the Appellant and hand J3 cuffed him. The Appellant was taken to Kankolokolo Police Post while the deceased was rushed to the hospital. 2.4 The deceased subsequently passed away the following day. A postmortem examination was conducted and established that the cause of death was traumatic head injury. 2.5 The Appellant was arrested at the scene and subsequently charged with the offence of murder. He denied the charge. 3.0 THE DEFENCE 3.1 The Appellant denied that he murdered the deceased. His evidence was that the deceased and PWl entered his house at night whilst he was asleep. 3.2 He woke up and went to the sitting room where the two intruders attacked him. A struggle ensued as the intruders tried to drag him outside so that they could handcuff him. 3.3 During the struggle he fell down together with one of the intruders. He explained that the man fell in the doorway with part of his body outside. It was his testimony that the man fell on an axe which was in the house and sustained an injury to his head. 3.4 He was subsequently handcuffed by the other man. He denied that the intruders had introduced themselves as CCPU members. 4.0 DECISION OF THE COURT BELOW J4 4.1 After analyzing the evidence adduced the learned trial Judge found that the Appellant had raised the defences of mistake of fact and self defence. He dismissed both defences and found the Appellant could not have been operating under an honest mistake that the deceased and PW2 were intruders because they were people he knew well. He found that the Appellant in a bid to resist arrest, axed the deceased in the head with the knowledge that such an act could cause grievous harm or death. He sentenced the Appellant to death. 5.0 THE APPEAL 5.1 Dissatisfied with the decision of the trial Court, the appellant lodged this appeal and raised one ground of appeal as follows; "The learned trial Judge erred in law in dismissing the defence of mistake of fact". 6.0 THE APPELLANT'S SUBMISSIONS 6.1 In the heads of argument filed on behalf of the Appellant, Learned Counsel Mrs. K. Chisala Bwalya submitted that the Appellant's defence was that when he saw two people in his house at night, he honestly and reasonably believed that JS there were intruders. She referred to his testimony at page 74 of the record of proceeding where he stated that he was asleep at night when he heard the door being pushed. He became frightened and confronted the men. 6.2 Counsel referred to section 10 of the Penal Code which provides that a person is not criminally responsible for acts or omissions under an honest and reasonable but mistaken belief in the existence of any state of things. I was also referred to the case of Patson Chembo Chimbala v The People 1 6.3 She challenged the trial Court's finding that the Appellant knew the deceased and his colleague as CCPU members despite the fact that he had denied this during cross examination. She criticized the trial Court's failure to give reasons for disbelieving the Appellant. 6.4 Counsel further argued that the fact the Appellant saw that the two men were carrying handcuffs could not lead to the conclusion that they were law enforcement officers. . Our attention was drawn to the case of Dorothy Mutale and another v the people2 where it was held that it is a cardinal principle of law that where two or more inferences are possible, the Court will adopt the one that 1s more J6 favourable to the accused. 6.5 We were urged to find that the Appellant was not criminally liable for the offence and should not have been convicted of the offence of murder. 7.0 THE RESPONDENT'S SUBMISSIONS 7 .1 The State relied on its heads of arguments filed on 7 th June 2023. Counsel for the respondent submitted that it was not sufficient for a person to hold a mistaken. belief in the existence of facts but such belief had to be honest and reasonable in the circumstances of a given case. 7 .2 Counsel tried to distinguish the facts in the case of Patson Chembo Chimbala (supra) from the present case by contending that the Appellant was aware that the men who had entered his house were unarmed. It was submitted that the Appellant had recognised the two men as members of the CCPU and therefore could not have been operating under the mistaken belief that they were intruders. 7.3 It was also submitted that defence of mistake of fact did not arise on the evidence and facts of the case as the Appellant was not in any apparent danger. She referred to the evidence that the deceased and his colleague only had a J7 torch and handcuffs. There was evidence that the Appellant knew the duo as members of CCPU. It was also submitted that the Appellant had totally disassociated himself from the offence as he claimed that the deceased sustained the fatal injury when he fell on an axe. 7.4 It was submitted further that the defence of mistake of fact applied only where the person had made a reasonable mistake. We were urged to dismiss the appeal. 8.0 THE DECISION OF THE COURT ON APPEAL 8.1 We have carefully considered the judgment appealed against, the record of proceedings and the arguments by both sides. The issue that falls for determination arising from the sole ground of appeal is whether the trial Court erred in declining the Appellant's defence of honest mistake. 8.2 From the evidence adduced, there was no dispute on how the deceased met his death. It was common cause that the deceased died after sustaining a fatal injury to his head from an axe following a fracas at the Appellant's home. There is no dispute that the axe belonged to the Appellant · and was in his house. 8.3 However, the Appellant denied having struck the deceased at all and told the Court that during the struggle, the deceased fell onto an axe which was near the door and JB sustained the fatal injury. 8.4 The Appellant's evidence at page 24 of the record was that whilst he was sleeping two people entered his house. He stated the following; "One of them had a light on his phone and he lit the phone on my face and then he pushed me on the floor since I did not know the men I started struggling with them in the house". 8.5 It is worth noting that at no time did the Appellant state that he believed that the two men were thieves or intruders. He merely stated that he did not know the men. He did not state that he attacked the men· under the mistaken belief that they had gone to harm him or steal his property. 8.6 The Appellant in fact denied having caused the injury to the deceased at all. According to his evidence, the deceased was the aggressor as he kicked his leg before attempting to hand cuff him. He stated as follows at page 75 of the record regarding the cause of the injury to the deceased. "One person in the process of dragging me slipped on a brick and it was slippery and so he fell. Part of his body was outside and the other part J9 including his head fell inside the house where there was a small axe and a pick". 8. 7 From his explanation above, he denied having attacked the deceased at all and explained that the injury happened accidentally as the deceased was dragging him. 8.8 The question that we need to resolve is whether the defence of mistake of fact was available to the appellant on the evidence adduced. Section 10 of the Penal Code Chapter 87 of the Laws of Zambia provides as follows on mistake of fact: "A person who does or omits to do an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist". 8.9 From the above provision it is clear that in order to rely on this defence, a person has to do or omit to do something which would ordinally attract criminal liability but for the mistaken belief. It follows therefore that this defence is only available where a person has committed an offence but is found to be not criminally liable because the criminal intent is negated by mistake of fact. JlO 8.10 This flows from the latin maxim actus non facit reum nisi mens sit rea which means an act does not make a man guilty of a crime unless his mind is also guilty. 8.11 In the case of Patson Chem.be Chimbala v The People (supra) the Supreme Court held that: "It is trite law that the defence of mistake of fact, that is, of an honest and reasonable, but mistaken belief, denotes the absence of mens rea ... " 8.12 In the present case, the appellant denied having axed the deceased at all. His defence was that the deceased fell on an axe as he was dragging him outside. The question that we need to resolve is whether a person who denies having committed any illegal act can avail himself of the defence of mistake of fact. 8.13 In our view, the appellant cannot rely on the defence of mistake of fact when he denies having caused the deceased's death. The act or omission is an important and necessary ingredient of the defence. In fact the rationale of the defence is that the person would be guilty of committing the offence but for the fact that he was labouring under an honest and reasonable but mistaken belief that certain circumstance existed. J11 8.14 We are guided by the Supreme Court decision in the case of Sankalimba v the people3 where the following was stated: "As the basis of his defence is that, the appellant had laboured under a state of hallucination, we do not think that the defence of mistaken belief stands any chance of success, for in order to succeed, it is necessary to show that the mistaken belief was not reasonable and honest. To attribute reasonableness to a person whose mind is in a state of disorder would be an affront to common sense". In the present case, the denial of any wrong doing robbed the appellant of the protection afforded by the defence of mistaken belief. It would have been different if the appellant's defence was that he axed the deceased under the mistaken belief that he was an intruder. 8.15 According to the learned author of Criminal Law in Zambia Doctrine Theory and Practice (Lusaka, Chribwa Publishers, 2020) at pp 501 there are two tests to apply to establish whether the defence of mistaken belief is available to the accused; the objective test of whether the mistaken belief was a reasonable one and the subjective test of whether the accused honestly held that belief. 8.16 As stated above, the evidence adduced did not show that the appellant had an honest but mistaken belief that the two J12 men he saw were intruders. By his own testimony the appellant admitted that he observed that the men were holding a torch and handcuffs. He also admitted that the men were dragging him and trying to handcuff him. In our view, the appellant could not have held an honest belief that the men were intruders. It is a notorious fact that handcuffs are generally associated with law enforcement officers. 8.17 In our view, the appellant needed to demonstrate the basis of his honest but mistaken belief to enable the state to rebut his evidence. It is not enough to just say that he believed they were intruders. 8.18 Whilst we agree that the appellant denied that he knew the deceased and PW2, the trial Court was entitled to disbelieve his evidence because he failed to challenge the prosecution evidence which was to the contrary. In the absence of any challenge to the prosecution evidence on the issue, the appellant's denial appeared to be an afterthought. 8.19 Regarding the submission that the appellant acted under the mistaken belief that the deceased and PW2 were intruders, this Court would have to consider whether such belief was reasonable. As discussed above, our view is that based on the evidence adduced the mistaken belief was unreasonable. The evidence was that the accused was able to observe the • alleged intruders and he noted that they were carrying a torch (which was shone in his face) and hand cuffs. We hold the view that it was not reasonable for the appellant to assume that the men were there to harm him or steal his property. In the circumstances, we cannot fault the rejection of the appellant's defence by the trial court. 9.0 CONCLUSION 9. 1 We accordingly find no merit in this appeal. We dismiss it and uphold the conviction and sentence. C. R. F.·M HE DEPUTY JUDGE PRESIDENT K. MUZENGA COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE