Charles Muleya v People (S.C.Z. Appeal No. 115/2009) [2010] ZMSC 20 (13 June 2010)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) IN THE MATTER BETWEEN: S. C. Z. AppealNo. 115/2009 CHARLES MULEYA vs THE PEOPLE APPELLANT RESPONDENT Coram: Salcala, CJ, Chibesalcunda and Mwanamwambwa JJS 13th April, 2010 and 13th June, 2010. For the Appellant: Mr A. C. Nkausu, Director, Legal Aid Board. For the People: Mrs F. L. Shawa-Siyuni Deputy Chief State Advocate. JUDGEMENT Chibesakunda, JS, Delivered the Judgement of Court Legislation referred to: 1. Section 200 and 204 of the Penal Code. The Appellant was charged and convicted on 2 counts of murder contrary to Section 200 of the Penal Code. The particulars of the case are that the Appellant, on 2 nd April, 2003, at Choma in the Choma District of the Southern Province of the Republic of Zambia did murder John Munkombwe and Janet Munkombwe. He is appealing against both conviction and sentence. When he appeared before the High Court, an application was made by his Counsel that he be subjected to a medical examination to determine his state of mind at the time of committing the offences on two occasions, when there was an initial report by Dr Kaswa Kasiama dated 3rct of August 2004. When the Court subpoenaed him to come and testify, it was discovered that J2 he had left Zambia for good. So the Court sent the Appellant back to Chainama where he was re-examined by Dr P. C. Msoni. Reference was made to the report dated 17th May, 2006 which was never produced before the Court as the Doctor was not called to give evidence before the Court. We will be dealing with these reports later in our Judgment. The circumstances in this case are that, on the 2 nd of April, 2003, PW2 a granddaughter of John Mukombwe (herein referred to as the 1st deceased), around 18:00hours saw him running in the village with blood oozing from his head. As he run, he was saying 'your grandmother has died where I have come from.' Few minutes later, PW2 saw the Appellant chasing the deceased across the village. Later on, the Appellant returned alone without the first deceased, saying 'it is finished, I have killed John and Janet Munkornbwe (herein referred to as the 2 nd deceased). According to PW2 the first and second deceased had brought up the Appellant. He lived with them, he was married with children. PWl informed PW2, who was his father, what transpired. PWl confirmed PW2's story. When the Appellant was put on his defence, the Learned Director of Legal Aid Board sought leave to again send the Appellant for medical examination at Chainama Hills Hospital under Section 167 of the Criminal Procedure Code. As already stated, that was the second time the Appellant was being examined. Dr Msoni sent his report from Chainama Hills Hospital. Mr Nkausu, the Learned Director of Legal Aid decided not to call Dr Msoni when the Appellant was put on his defence. On oath, he totally denied killing his grandparents. According to him, he was told of his grandparent's death on 4 th April 2003, when Timothy, a member of the J3 neighbourhood watch, went to tell him about this tragedy. His testimony is that he was looking after his grandparents. He was in good terms with them. They brought him up and he was looking after them. So he would not kill them. PW2 gave false evidence against him because he is a successful farmer. He denied that he killed them because he suspected them to be witches. On the evidence, the Appellant was convicted on both counts. The Learned trial Judge agreed with the Principal State Advocate that although there was no post-mortem report, there was sufficient evidence to prove malice aforethought as stipulated in Section 204 of the Penal Code. The Learned trial Judge also found that the evidence had established beyond reasonable doubt the fact that the Appellant had confessed that he had killed both grandparents,(l st and 2 nd deceasecfJ. Before this Court, Mr Nkausu, in arguing this appeal, submitted that the learned trial Judge erred in law and in fact when he convicted the Appellant of murder on two counts in spite of two conflicting medical reports. He argued that the two medical reports should have put the learned trial Judge on alert. According to him, the first medical report, dated 3rd August, 2004, indicated that the Appellant was not of sound mind, when he committed these two offences. The second medical report, dated 17th May, 2006, indicated that the Appellant was of sound mind at the time he committed these two offences. Mrs Shawa-Siyuni supported the convictions by the lower Court. On the issue of the Appellant's state of mind, she argued that the question which was before the High Court, was the state of mind of the Appellant at J4 the time of committing the offences, not the state of mind of the Appellant at the time of the trial. She argued that since the two medical reports were never produced before Court, the question of the state of mind of the Appellant was never presented before Court. We have addressed our minds to these issues. Looking at the proceedings of the High Court, we are satisfied that the issue which was raised before the High Court right from the commencement of the trial was the issue of the state of mind of the Appellant at the time of committing the offence. However, as Mrs Shawa-Siyuni has submitted, these two different medical reports were not submitted before the learned trial Judge. Mr Nkausu, the learned Director of Legal Aid, in his submission, rightly argued that the Appellant was sent to Chainama Hills Hospital under Section 167 of the Criminal Procedure Code which says: " Where an act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane so as not to be responsible for his actions at the time when the act was done or omission made, then, if it appears to the court before which such person is tried that he did the act or made the omission charged but was insane as aforesaid at the time when he did or made the same, the court shall make a special finding to the effect that the accused was not guilty by reason of insanity." In our view, because the defence withdrew the production of these reports before the Court, the defence spelt out in Section 16 7 of the CPC was never presented before the Learned trial Judge. Therefore, the Learned trial Judge was not obliged to make any further inquiries nor even any JS findings. It is rather late, therefore, for the Appellant to now try to present this argument before this Court, which arguments were not presented before the High Court. We therefore find no merit in this appeal. We dismiss the Appeal. We confirm the sentence. E. L. Sakala CHIEF JUSTICE W~ ················~································· L. P Chibesakunda SUPREME COURT JUDGE 5