Collins Matakala v people (Appeal 42 of 2018) [2019] ZMSC 372 (19 August 2019)

Selected Judgment No. 24 of 2019 P. 770 Appeal No. 42/2018 IN THE SUPREME COURT O HOLDEN AT LUSAKA (Criminal Jurisdiction) B E T W E E N: COLLINS MATAKALA AND THE PEOPLE RESPONDENT Coram: Phiri, Muyovwe and Chinyama, JJS on 9th July, 2019 and 19th August, 2019 For the Appellant: Mr. C. Siatwinda, Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. A. Kennedy-Mwanza, Senior State Advocate, National Prosecution Authority JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Murono vs. The People (2004) Z. R. 207 2. Latins Lungu Appeal No. 35/2018 3. Abraham Mwanza and two Others vs. The People (1977) Z. R 221 4. DPP vs. Lukosha (1966) Z. R. 14 5. The People vs. Njobvu (1977) Z. R. 132 6. Chibovu and Another vs. The People (1981) Z. R. 28 7. Daka vs. The People (1972) Z. R. 70 8. Dorothy Mutale and .another vs. The People (1995-1997) Z. R. 227 9. Kashenda Njunga and Others vs. The People (1988/89) Z. R. 1 JI P. 771 Legislation referred to: 1. Section 204(b) of the Panel 2. Section 191A of the Penal Code This is an appeal against the judgment of the High Court delivered by Hon. Mrs. Justice Banda-Bobo in which she convicted and sentenced the appellant to the mandatory death sentence. The appellant was charged with the murder of his wife Monica Chiwanda (hereinafter referred to as “the deceased”). The brief facts were that on the 2nd July, 2014 the appellant and his brother-in-law, PW1 (the deceased’s brother) were drinking at a tavern until 21:00 hours. PW1 escorted the appellant to his home where he found his sister (the deceased) sleeping on a bed in the sitting room. PW1 then left for his home. In the early hours of the 3rd July, 2014 around 01:00 hours the appellant called PW1 and requested him to go to his home and pick up his two months old baby. Upon PW1 reaching the appellant’s house, he did not find the appellant, but entered the house as it was not locked, and he saw the deceased’s body on the floor in the bedroom. The deceased was J2 P. 772 already dead. PW1 got the baby and went back to his house. He tried to get through to the appellant, but his mobile phone was off. The evidence of PW2, the wife to PW1, was substantially the same as that of her husband save that she insisted that the appellant actually phoned PW1 on his mobile phone to inform him that the baby was alone at home and that he should go and collect the baby. The matter was reported to the police. It was later discovered that the appellant had travelled to Lusaka where he reported himself at Emmasdale Police Station and was detained following communication with the police from Ndola Central Police Station. The appellant’s story was that PW1 called him to the tavern to drink chibuku and that they socialized together until 22:00 hours and thereafter proceeded to his home together. He stated that, on arrival at home, they found the deceased sleeping on the bed in the sitting room. He went into the bedroom to change while PW1 scolded the deceased who appeared to be in a drunken state. The next thing was that the deceased entered the bedroom and pulled his top and fell down. The appellant did not do anything and just decided to go to J3 P. 773 bed because PW1 told him that since she had been drinking, he shouldn’t touch her. Later, he woke up only to find the deceased still lying on the floor, he called out her name, poured water on her and still she did not wake up. It was at this stage that he phoned PW1 and even went to his home to inform him of the alarming situation, but PW1 refused to go with him to his house. In the company of his neighbour, he went to town to book a cab to take the deceased to the hospital. According to the appellant, PW1 phoned him and threatened to kill him and fearing for his life, he travelled to Lusaka to inform his relatives that he was being accused of killing his wife. He handed himself over to the police at Emmasdale Police Station in Lusaka. This was the appellant’s defence. In her judgment the learned trial judge, after analyzing the evidence, applied her mind to the ingredients of the offence of murder. The learned trial judge found that this case was anchored on circumstantial evidence especially that the appellant was the only person with the deceased at the material time. She rejected the J4 P. 774 appellant’s defence that the deceased fell on to some blocks in the bedroom. The learned trial judge took the view that a mere fall could not have caused the fatal injuries observed on the deceased in the postmortem report and by the prosecution witnesses. According to the learned trial judge, the spleen could not rupture unless there was a severe blow or blunt trauma to the abdomen. The learned trial judge concluded, taking into account decided cases, that the circumstantial evidence was cogent and only pointed to one inference - that of the guilt of the appellant. She found that the prosecution had proved its case beyond reasonable doubt and sentenced him to death. Mr. Siatwinda, learned Counsel for the appellant raised two grounds of appeal. The essence of the two grounds of appeal is that the learned trial judge erred in law and fact by convicting the appellant of the offence of murder in the absence of any evidence of malice aforethought and that the learned trial judge misdirected herself when she drew her own conclusions from the postmortem examination report in the absence of the evidence of the pathologist. J5 P. 775 In his filed heads of argument, which he relied on entirely, Counsel for the appellant argued the two grounds of appeal together. Citing Murono vs. The People1, it was submitted that the prosecution bears the burden of proof beyond reasonable doubt. It was contended that going by the facts of this case malice aforethought was not established. That a scrutiny of the appellant’s evidence reveals no malice aforethought as he stated that both he and the deceased were drunk and that the deceased fell on her own as they dragged each other. Counsel accused the learned trial court of filling in the gaps in the prosecution’s case by reading into the postmortem report words which the pathologist never included in the report. Counsel quoted the following excerpt from the judgment of the lower court: “Be that as it may, a spleen can only be ruptured if there is or was severe direct blow or blunt trauma to the abdomen (from WEB MB). Such blunt trauma can certainly not have been caused by a mere fall.” Counsel submitted that this was contrary to the findings in the postmortem report that the cause of death was internal bleeding into the abdominal cavity due to rupture of the spleen. It was pointed out J6 P. 776 that had there been a blow to the abdomen, the postmortem report would have specifically stated so. Further, Counsel urged us to find that the finding by the learned trial judge was perverse. Counsel opined that the postmortem report left unanswered questions such as whether a spleen can only be ruptured by a severe direct blow or blunt force to the abdomen; whether it was possible to have a ruptured spleen without any blunt force to the abdomen and whether the significant findings noted in the postmortem report could be as a result of falling to the ground or by struggling and dragging on the ground? Relying heavily on our recent judgment in the case of Latins Lungu2 where we referred to Abraham Mwanza and Others vs. The People3, the essence of Counsel’s argument is that the evidence of the pathologist was cardinal in this case as it would have assisted the court in either accepting or rejecting the appellant’s version of what transpired on the fateful day. Further, that the pathologist would have assisted the court in arriving at the conclusion that there was malice aforethought. Counsel submitted that as a result of this lacuna in the evidence, the learned trial judge strayed into the realm of speculation which could have been avoided had the pathologist J7 P. 777 been called to testify during trial. It was submitted that consequently the prosecution failed to prove its case beyond reasonable doubt, and we were urged to allow the appeal and acquit the appellant. In the alternative, Counsel submitted that should we be inclined to find that the appellant unlawfully caused the death of the deceased, we should find him guilty of manslaughter as malice aforethought was not established by the prosecution. On behalf of the respondent, Ms. Kennedy-Mwanza supported the conviction and sentence. Counsel referred us to the summary of significant, abnormal findings at examination in the postmortem report. She pointed out that the postmortem report shows that the deceased suffered multiple injuries and a raptured spleen that eventually caused her death. In arguing that malice aforethought was established in this case, Counsel relied on the case of DPP vs. Lukosha4 and the case of The People vs. Njobvu5. It was submitted that in assaulting the deceased, the appellant should have foreseen the probable consequence of his actions. J8 P. 778 In arguing ground two, it was submitted that the trial court was on firm ground when it drew its conclusions from the postmortem examination report as there is no mandatory requirement that a medical officer ought to give verbal evidence to explain the contents of the postmortem report. Counsel cited Section 191A of the Criminal Procedure Code which clothes trial courts with discretionary powers to decide whether a medical officer is required to appear before it to give verbal explanation on the contents of the report. It was submitted that the prosecution through its witnesses demonstrated that the deceased suffered the injuries as stated within the postmortem report. We were referred to the case of Chibovu and Another vs. The People6 and the case of Abraham Mwanza vs. The People3 where we held, inter alia, that: (ii) There maybe cases in which the medical report will be sufficient to supply the information without it being necessary to call the doctor,... Counsel argued that the contents of the postmortem report were self-explanatory, and it was unnecessary to call the pathologist. It was submitted that the appellant could have exercised his right to J9 P. 779 call the pathologist if he so wished in accordance with Section 191 A. She urged us to dismiss the appeal in its totality. We have considered the arguments by Counsel for the parties. We will deal with both grounds simultaneously. Before we consider the main appeal, we want to comment on the procedure adopted by the learned trial judge in admitting the warn and caution statement recorded from the appellant during investigations. The record shows that there was an objection from the defence when the arresting officer attempted to produce the warn and caution statement which was recorded in Bemba and translated into English. The objection was on the ground that the English version of the warn and caution statement was not correctly translated. The defence demanded that only the Bemba version of the warn and caution statement be produced. The learned State Advocate, it appears, conceded and applied that the court admits the Bemba version. In her Ruling the learned trial court allowed the admission of the Bemba version only and it was marked P2. The correct procedure was to admit the English and vernacular version of J10 P. 780 the warn and caution statement. We cite with approval the case of Daka vs. The People7 where it was held that: (iii) When a statement by an accused person is put into evidence, if it is in the vernacular, an English translation must be provided to, or made by, the court. Therefore, in the case in casu, the trial court should have admitted both the English and Bemba versions of the warn and caution statement and thereafter, the court would have allowed amendments to the English version of the statement with the agreement of Counsel. In this case, it appears that the arresting officer read out the Bemba version which was interpreted into English by the Court Interpreter. We say it appears so because this is our reading into the record. We must state that it is important that the record speaks for itself. We urge trial courts to take note of this to avoid not only confusion in the production of a warn and caution statement but prejudice being occasioned to the appellant’s defence. In this case, however, we find that the appellant suffered no prejudice. hi P. 781 Now coming to the main appeal, it is not in dispute that the appellant and his brother-in-law PW1 had earlier been drinking together and that PW1 escorted the appellant home before proceeding to his home on the fateful night. It is not in dispute that the deceased was found dead in her home in unexplained circumstances. The only other person present in the house was the appellant and the couple’s 2-months-old baby. It is not in dispute that the appellant contacted PW1 and requested him to go and collect the baby from his home and this is how the deceased was found dead in the absence of her husband, the appellant. The appellant has vehemently denied killing his wife stating that she fell down on her own as she attempted to remove his top in the bedroom after he came home from drinking with PW 1. After she fell, he stated that he did not check on her as they were both drunk and he woke up later in the night to find she was still lying in the same place. He stated that she fell on a block and injured herself. The main issue in this appeal is whether the prosecution established malice aforethought in this case and whether the failure by the J12 P. 782 prosecution to call the pathologist to explain the cause of death is fatal to the prosecution case such as to entitle the appellant to an acquittal. Counsel for the appellant has argued that there are unanswered questions which must raise doubt in our minds which must be resolved in the favour of the appellant. As indicated, we will deal with both issues together. Counsel attacked the learned trial judge’s observations in the judgment where she stated as follows: “Be that as it may, a spleen can only rupture if there is or was severe direct blow or blunt trauma to the abdomen (from WEB MB). Such blunt trauma can certainly not have been caused by a mere fall.” Mr. Siatwinda’s argument is that this finding is perverse and must be reversed. This is in view of the fact that the postmortem report was silent as to the cause of ‘the internal bleeding into the abdominal cavity due to rupture of the spleen’. Notably, Ms. Kennedy-Mwanza did not address this argument in her response. We note that the above finding which is under attack by Counsel for the appellant was arrived at after the learned trial judge made some research on the internet on the cause of death. We agree with J13 P. 783 Mr. Siatwinda that the pathologist who conducted the postmortem examination was in a better position to explain in detail the cause of death and the significant findings listed in the report. We must state that while research is welcome, the research results cannot be applied without any evidential basis. Such evidence must come from an expert after considering the facts of the case. In this case, the issue is: what caused the spleen to rupture thereby causing internal bleeding into the abdominal cavity? The answer could have been provided by the pathologist had he been called. However, we agree with Ms. Kennedy-Mwanza that in line with the provisions of Section 191A (l)(ii) the defence was at large to call the pathologist to explain the implications of the significant findings and the cause of death in the light of the prosecution evidence. Although the proviso gives a timeline of 7 days before trial, the trial court would have used its discretion had the defence made the necessary application. We must state, however, that it was a misdirection for the learned trial judge to go into an in-depth analysis of the findings in the postmortem report and conclude that a spleen can only rupture when there is a direct blow to the abdomen. In the absence of evidence from the J14 P. 784 pathologist who conducted the postmortem examination, the learned trial judge should have restricted herself to the witness evidence before her from which she would have drawn her own conclusions. In aid of this appeal, Counsel for the appellant reminded us of our recent judgment of Latins Lungu2 in which we reiterated our holding in Abraham Mwanza and two Others vs. The People3 that it is highly desirable to call the person who carried out the medical examination to testify in order to clarify issues that may arise regarding the cause of death or other related issues. The case in casu is distinguishable from Latins Lungu. In Latins Lungu the deceased was found dead in the morning in what appeared to be a suicide as the cause of death was asphyxia due to hanging which was due to multiple abrasions and bruises on the body. There was evidence that the deceased had attempted suicide once due to her HIV status and she left a suicide note. We did state in the Latins Lungu case that there were a lot of unanswered questions. In acquitting the appellant, we observed that the prosecution failed to subject the alleged suicide note to the handwriting expert for examination; the J15 P. 785 deceased had attempted suicide before and the failure by the prosecution to call the pathologist who conducted the postmortem examination left gaps in the evidence. We took the view that the prosecution failed to prove their case beyond reasonable doubt as the guilt of the appellant was not the only inference in line with decided cases by this court such as Dorothy Mutale and Another vs. The People8. In the case in casu, looking at the evidence before the trial court, the appellant placed himself at the scene of crime; the prosecution witnesses testified to an assault being evident on the body of the deceased and considered together with the cause of death stated in the postmortem report, it is clear that the deceased suffered a grave assault on her person leading to her death. In the case of Kashenda Njunga and Others vs. The People9 we held that: “It is not necessary in all cases for medical evidence to be called to support a conviction for causing death. Except in borderline cases, laymen are quite capable of giving evidence that a person has died. Where there is evidence of assault followed by a death without the opportunity for a novus actus interveniens, a court is entitled to accept such evidence as an indication that the assault caused the death.” J16 P. 786 In this case, the deceased was found lying on the ground naked in her bedroom with visible injuries on her body. The appellant confirmed that the deceased’s brother had passed through the couple’s home hours earlier. Reading the appellant’s evidence, we find difficulty, as did the trial judge, how the deceased who was allegedly attempting to take off his top ended up in a state of nakedness in the bedroom. According to PW1, PW2 and PW3, the deceased had fresh wounds on her forehead, the right rib, cuts on her back, left cheek and left hand. The state the deceased was found in, naked on the floor of her bedroom with visible injuries pointed to the inescapable conclusion that she had been assaulted and since the appellant was the only person in the house with her, all fingers pointed to him as the attacker. The appellant’s explanation is that she fell on some blocks when she was trying to take off his top. The learned trial judge rightly rejected the appellant’s explanation that the deceased fell on some blocks as there were no blocks found in the house at the time the deceased was found dead. The point we are making is that while we agree that the pathologist should have been called to explain the cause of death, there was sufficient evidence of J17 P. 787 assault on the record which pointed to the guilt of the appellant. Further, we find that the case of Njunga cited above applies to this case that there was sufficient evidence as to the death of the deceased through assault by the appellant. This was a case anchored on circumstantial evidence and all circumstances pointed to one inference that the appellant had assaulted his wife to death. His own evidence did not assist him as he admitted that after she allegedly fell, he did not check on her but left her to lie there for hours only to wake up and find her dead. We agree with the learned trial judge that a mere fall could not have caused the death of the deceased. We cannot help but take the view that Section 204 (b) of the Penal Code comes into play and we are persuaded and agree with the learned trial judge that the appellant should have known that such severe assault on the deceased would result in her death. Therefore, the argument by Counsel that there was no evidence of malice aforethought cannot be sustained in the face of the circumstances of this case which clearly show that the deceased was assaulted by the J18 P. 788 appellant. After assaulting her, he left her for dead abandoning his two-months-old baby in the house and left for Lusaka. In our view, the appellant’s conduct was not that of an innocent or reasonable husband and father. In sum, without the pathologist’s oral evidence, the prosecution evidence before the court was still sufficient to sustain a conviction on a charge of murder. We find no merit in the appeal and it is dismissed. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE J. CHINYAMA SUPREME COURT JUDGE J19