Chrisborn Kalonga v The People (Appeal 188 of 2017) [2018] ZMSC 365 (10 December 2018)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA ( Criminal Jurisdiction) APPEAL No. 188/2017 BETWEEN: -...... ..i r;,, ~ i:: •. : ,. CHRISBORN,. KALONGA AND · .. : . ., '") I u uc(.' ){ w . J THE•PEOPLE : 1. j ·~ 'I Phiri, Muyovwe and Chinyama, JJS. • r i" ~ c.;. ' .. ': Ii , • • ' Coram: APPELL~NT • RESPONDENT On 4th December, 2018 and on 10th December , 2018. For the Appellant: Mr J. Zulu, Senior L egal Aid Counsel - Legal Aid Board. For the Respondents: Mr. F. M. Sikazwe, Se nior State Advocate - National Prosecutions Authority. JUDGMENT Chinyama, JS , delivered th e Judgment of t h e Court. e Cases referred to: 1. Chinyama v The People (1975) Z. R. 140 2. Khupe Kafunda v The People (2005) Z. R. 31 Statutes referred to: 1. Penal Code, Chapter 87, Laws of Zambia, section 200. 2. Criminal Procedure Code, Chapter 88, Laws of Zambia, sections 17(1), 167(1)(3). The appellant was convicted on one count of murder contra ry to section 200 of t h e Penal Code and s enten ced to d eath . The cas e related to th e gruesome killin g of Fanwell Mwampatisha on t h e 25th November, 2015 at Ch ibombo in which the deceased's h ead was ' ' . crushed with a heavy carved wooden stool. Bot h arms and legs were ' equally broken with the stool. . ' At t h e comme n cem e nt of t ria l in th e matter , t h e learn ed Counsel '· '· . ' '· for the a ppollant a pplied before the trial court under section 17(1) of the Criminal Procedure Code (CPC) to h ave th e appellant medically examined as regards his s tate of mind a t the time of a lleg~dly committing the offe n ce a nd wh e the r h e could s tand t ria l or make a defence. The section read s as follows- 17. (1) A court may, at any stage in a trial o r inquiry, order that an accused person be medically examined for the purpose of ascertaining any matter which is or may be, in the opinio n of the c ourt, m aterial to the proceedings before the court. e It is clear from the sec tion that it is expansively couch ed to cover a ll cases includ in g a n application for m edical examination to ascertain t h e state of mind of a n accused at the time of the offen ce. The application , in this case, was precipitated by wh a t the learned Coun sel termed as c h allenges h e h ad "to move on the same level w ith th e accused". The learned State Advocate on beh alf of th e J2 respondent left the matter for th e court to decide as h e had had no jnteraction with the app ellant. The learned trial judge asked the a ppella n t whether h e was ,. failing to cojpmunicate with his lawyer. •. The a ppella nt•. did not •. respond. The learn ed trial judge then ask ed the appella nt wh eth er he WjlS able to follow the proceedin.gs to which the- appella nt replied in the a ffirmative . The learned trial judge then rejected the application without giving reasons and proceeded to receive the evidence on ~ehalf of the pro~ecution. Upon.putting t h e appellant on his d e fence, his advocate informed the court that his client would remain s ilent. The learn ed tria l judge went on to deliver a judgment in which h e found the appellant guilty and convicted him. The a ppellant's grievance in the one ground of appea l put e forward is that the learn ed trial judge erred in la w a nd fact w hen h e rejected t h e appellant's a pplication to b e medically examined for n o reason which denied him the opportunity to effectively disch a rge the onus of establishing the defence of u nsoundness of mind a t t he time of t h e offe n ce . The appeal, therefore, focuses on th e rejection of th e a pplication to h ave t h e a ppe llant m ed ically examined J3 notwithstanding t hat even the a pplication to determine th e appellant's ability to stand trial and defe nd himself was equally rejected . '· Both a q_vocates a re agr~ed in th eir submiss ions th a t th e learned •• '· trial judge erred in r ejecting the application to h ave the appella n t meqically examineµ as t his deprived him of an opportunity • to disch a rge the onus of establishing the state of h is mind a t the time of committing the offence and we concur. This is con s istent with what t h is court has s aid b e fore in such cases as Chinya m a v Tbe People and Khupe Kafunda v The People cited in this appeal. In d eed , the learned trial judge ough t to have ordered t h e medical examination of the appella nt as to his state of mind at the time of commiss ion of the offence which would h a ve settle d one way or the othe r the a ppella n t's criminal r es ponsibility for his actions. Th e point of difference in t his a p peal, however, is t h a t Mr Zulu 1s of the position that t h e e rr or creates a doubt as regards the a ppellant's c riminal responsibility, as we under s tood t he submission, which should b e resolved in favour of the a ppellant; that the sen tence of deat h should, th erefore, b e s ubstituted with a s pecial finding th at e J4 the a ppe llant 1s not guilty by reason of insanity a nd should b e detain ed during the Presidents ' pleasure purs u a nt to section 167(1 ) ' (3) of th e c;'iminal Procedure Code. The sectio n slate s- ' '· 167. (1), Where an act OJi. omission is chatged against any person as an offenc·e, 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 whe n 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. '· 12) ... 13) Where a special finding is made under subsection (1), the court so finding shall order the person to whom such finding relates to be detained during the President's pleasure . Mr Sikazwe does not agree with Mr Zulu's pos it.ion and con tends that there is no evidence in the r ecord of a ppea l that would justify a s pecial finding under section 16 7 of the CPC. His view is th a t the e noted error a mounts t o a mis trial which s h ould b e remedied by the case b ein g sent back to t h e High Court for r etria l b efore a n oth er judge. vVe have con s ide re d t h e a rgume nts as well as section 167 (1) a nd (3 ) of th e CPC. It is clear from t h is section tha t b efore th e s pecial finding can be made, the re must be evide n ce given at the tria l of t h e JS accused which satis fies the court that th e a ccu sed wa s insane so as n ot to b e re s ponsib le for his actions at t h e time of t h e offen ce . Th e ' s tate of m ind can n ot, t h erefore, be p res u m ed under· th e section , m ore ' · ' so given the cons equences th at the s p ecial finding lead s to a n ord er l of d etention during t h e Presiden t's p leasure wh ich m ay n ot porte nd l l l l well for a n a ccus ed who migh t possibly b e innocen t of the crime . • • We a re, the refore, una ble to agree with Mr Zu lu t h at a s p ecial finding s hould b e m a d e as there is n o eviden c e of the a p p ellant's s tate of m ind a t the time of commission of t h e offence. We n ote from t h e . . record th a t the re was evidence given by witness es for the prosecu tion of the unus u a l be h aviour a n d a ppear a n ce of t h e a ppella nt at t h e time of th e offen ce. This , in our view, presen ted the Cour t with a noth er opportunity to correct t h e error rejecting th e a pplica tion fo r m edical exa mination. The learned trial judge s hould h ave s eized t h e op port u nity a nd orde red th a t th e a p pellant b e medically exa m ined at e tha t juncture . In s tea d and to th e prejudice o f t h e a ppella nt's case, t h e learned t ria l judge regarded t h e eviden ce, a s the jud gmen t s hows, a s bein g incapable of n egat in g th e intention to k ill or th e menta l res pon s ibility . This a pproach to the evid en ce w as wron g . JG It fo llows from th e foregoing th at t h e outcome of th e error by the Court below rej ecting the a pplication to h ave t h e a ppe llant m edica lly ' · examined is that the co nviction cannot b e s u s ta ined. We a gree with ' · . ' ' '· Mr Sikazwe tha t the error amounted to a mistria l. We, accordipgly '· quash the conviction a nd set a side the sentence of dea th. In the '· '· . interests of justice, we order that the m atter be remitted b a ck to the • • • • High Court for a retria l before a different jud ge . To the foregoing extent the a ppeal is partially succes sful. ·0~-f)f . ,}.-~ ' l , ' ' . / ('\ ··············~~······················ G. S. PHIRI SUPREME COURT JUDGE _.,,--·· ,........____ "- / ..... ~-~ ............................ . E . N. C. MUYOVWE SUPREME COURT JUDGE _ . ...- -·· --- - -- - -::-- ·········~:·c:·~~~~········· SUPREME COURT JUDGE J7