Kunda v People (Appeal 149 of 2014) [2015] ZMSC 69 (3 November 2015)

IN THE SUPREMECOURTOF ZAMBIA " HOLDENATILUSAKA SCZ Appeal No. 149/2014 (Criminal JULSdiction) BETWEEN: DAVISONKUNDA AND THE PEOPLE J APPELLANT RESPONDENT Coram: pJiri, Muyovwe, JJS and Lengalenga, Ag/JS or! the 12mAugust, 2014 and 3'd November, 2015. For the Appellant: I For the Respondent: I I I Mrs. M. Manda of the National Aid Clinic for Women Legal Mr. R. L. Masempela, State Advocate, NPA. JUDGMENT Phiri, JS, delivered the Judgment of the Court Cases referred to: 1. MUYUnldaMuziba and Ilutumbi Sitali vs. The People, AppeallNo. 212/2012. 2. Nyirongo vs. The People (1972) Z. R. 290 (C. A.). 3. DPP vs. Risbey (1977) Z. R. 28. 4. 5. 6. Mbomena Moola vs. The People SCZ Judgment No. 35 of Jack Chanda vs. The People (2002) Z. R. 124. Steak Chibale vs. The People Appeal No. 62 of 2013 , , I 2000. I I Legislation referred to: The Penal clde Chapter 87 of the Laws of Zambia. This is an appeal against sentence only. Before we deal with this appeal, (e have to mention that this appeal has come to us under very unusual circumstances. This is one of the cases where the record of proceedings in the High Court was reported missing and for a veJ long time, has not been found. There t on record an affidavit in support of the lost or misplaced c se record filed into the High Court on the 11th of June, 2014. The affidavit was sworn by Kenny Mufwinda Kafuwala, the then Chief iarshal to the effect that he has unsuccessfully tried all means to lorate the record of proceedings involving the appellant. He also vain y tried to create a trail of the movement of the case file at Kasama ~igh Court. After much search, a Library copy of the High Court udgment was found at Ndola Library. The record of proceedings still remains untraceable. We wish to emphasize what we said about mlssmg Court records in t e case of Muyunda Muziba and nutumbi Sitali vs. The People') to the effect that we do recognize that records are J2 bound to error at one time or the other, for a variety of reasons. We also stated tJat we do recognize that a Judgment can go missing for a variety of Juman reasons; which may include a deliberate desire to deprive thl appellate Court the full opportunity to consider the case; in ordJ to divert the course of justice and do harm to the criminal jus)ce system. What we mean is that when a record goes missing fro the trial Court, the loss of that record should not automatically benefit the appellants in form of technical acquittals. In the Muyunda Muziba easel'} we went further to invite Counsel froJ both sides of the criminal justice system to look at the precedent s It by the Court of Appeal in the case of Nyirongo vs. The peoPleli and our decision in the case of DPP vs. Risbey3}, with extreme carT so that the underlying principles of criminal justice are not undermined. In the Nyirongo easel2}, it was held that where a re lord of the Judgment has been lost the appellant is deprived of the opportunity of pursuing an appeal against the Judgment d the appeal must be allowed. In the Risbey ease(3), we went further than the Nyirongo ease(2), and held that in exceptional bases, where for instance it is clear on the face of the J3 transcript of evidence and the remainder of the record that all the primary factslare common cause, the absence of a Judgment would not inevitablJ lead to the appeal being allowed, because the appeal being by waJ of re-hearing, the appellate Court in such a situation is in as good a position to draw inferences of fact from the primary facts as was the trial Court. The Risbey ease(3) was decided as a second app al; having commenced in the Subordinate Court; whereas the Nyirongo ease(2) was about an appeal from the High Court as the Court of first instance. In the present case, the Judgment has been found and it contains a complete narration of the evidence that was before the trial Court, the analysis of it, the findings of fact and the conclusions f the learned trial Judge. In addition, the facts are not disputed an no question of the credibility of witnesses has been raised. We are therefore in a position to assess the merits of this case. We are satisfied that this is one of the exceptional cases where it IS clear on the face of the judgment of the trial Court and the remainder If the record that the primary facts are common cause J4 and the absence of the record of proceedings should not lead to a technical acqLttal or to an order for retrial. In any case, the appeal . I IS agamst sentence on y. I . The appellant was tried and convicted of one Count of the capital offen1e of Murder contrary to Section 200 oJ the Penal Code, Chapter 87 oJ the Laws oJ Zambia. The particulars alleged that e appellant on the 23,d day of May, 2004, at Mpika in the Mpika District of the Northern Province of the Republic of Zambia, did murder one Miriam Mulengwa. He was found guilty and convicted and subsequently sentenced to death. The facts in common cause were that the appellant and the deceased we e husband and wife. They lived at their matrimonial hut situated at their maize field in the outskirts of their village. The evi ence before the trial Court was that the appellant and his wife we t to sleep in their house during the night. Early the next morniig, at about 03.00 hours PWI, Samson Mulengwa Chibuye, the deceased's father, found the deceased lying down unconsciou inside her family hut. She had been hacked with an J5 axe on the right side of her body and the axe was imbedded in her body. She diL as she was being taken to the hospital. The appellant was implicated by five prosecution witnesses. These were: Samson Mulengwa Chibuye (PW1), Richard Chuke (PW2),Pilson Kunda (PW3),and two Police witnesses who attended to the invest)gation. PW2 was the appellant's neighbour. He heard the deceased's cry at about 03.00 hours and led his family to the I scene where re found the deceased fatally wounded by an axe. The deceased was covered with a blanket and her husband, the appellant, wls neither in the house nor at the scene. The door was wide open. he appellant went to see PW3 around 20.00 hours on I the next da. The appellant reported to PW3 that he had escaped from the Chiefs Retainers who had earlier apprehended him. PW3 observed thL the appellant's hands were tied with fiber. PW3 summoned he appellant's parents and later conveyed the appellant to the Polic Station where he was detained and later charged with the murder f his wife. In his defence, the appellant did not dispute the fact that he hacked his "ife to death, with the exhibited axe. He explained that J6 during the night in question, he never quarreled with his wife. They went to bed lnd he later dreamt that his wife's grandfather turned into a wild pig and entered their hut. He woke up from his sleep, got an axe ld hacked an object which was in the doorway. He then heard JiS wife scream and realized that he had hacked her. He then laid her on the bed and covered her. He failed to remove the axe from her body and went to hide. This was the nature of the evidence rec ived by the trial Court. The lea ned trial Judge considered the totality of the evidence received, in luding the appellant's story, and concluded that the evidence ag inst him was overwhelming. The learned trial Judge found as a act that when the appellant hacked his wife, he was fully awake lnd conscious of what he was doing; that he was not and hiding ~ r four days was a clear indication that he was aware of what he had done. The learned trial Judge concluded that the use of the axe d the extreme force used, to the extent that the axe got imbedded 1 the deceased's body, proved malice aforethought as defined in Section 204 of the Penal Code, Chapter 87 of the J7 Laws of Zambia. On the basis of these findings of fact, the learned trial Judge ctncluded that the appellant was guilty of murder and convicted him as charged; and awarded him the capital I punishment. As alr1adY indicated, the appellant's appeal is against sentence onl . We will therefore, not belabour on the merits of the conviction any further than we have already narrated. Suffice to say we UPhold the conviction. One ground of appeal was advanced on behalf of the appellant; and this is that the learned trial Judge misdirected imself in law and in fact in failing to find that there were extenu ting circumstances and therefore, that he should not have impose the death sentence. In su porting the single ground of appeal, Mrs. Manda submitted t at the appellant's explanation was that he dreamt that his wife's g ndfather had transformed into an aggressive wild pig that was ntering his house. According to Mrs. Manda, the appellant believed that he was hacking that wild pig; and that it was this be ief which led him to commit the offence. She argued that this eVidence amounted to a belief in witchcraft which should J8 make the appellant liable to a lesser sentence other than the death sentence, in Lcordance with Section 201(1) (b) of the Penal Code, Cap 87 of the Laws of Zambia. In aid of this argument, Mrs. I Manda cited the case of Jack Chanda vs. The People(4) where we stated that a failed defence of provocation, evidence of witchcraft accusatIOn an eVl ence 0 f d . k. nn mg can amount to extenuatmg . . I d.d I . Clrcumstancjs. We wey also referred to our decision in the case of Steak Chibale vs. rhe Peoplel51where we pronounced that each case is to be decided 0 its merits and that the Court must properly consider the facts as to whether an extenuating circumstance exists. Mrs. Manda submitted that the appellant in the present case did not know that it was a person he was hacking, and his belief was that it was the same pig which he had dreamt of, which he axed except that it now I oked like two tins of maize in the doorway. Mrs. anda also referred us to the case of Mbomena Moola vs. The peJplel6i in which we took cognizance of the fact that many communitie believe in witchcraft and that however unreasonable, it must be eld as an extenuating circumstance. On the basis of J9 I I I. these arguments, the learned Counsel urged us to set aside the capital punishment and replace it with an alternative sentence. On behalf of the State, Mr. Masempela contended that there was no extenuatmg circumstance m t IS partlcu ar case. h. . I H e .. argued that lhile the defence of belief in witchcraft may amount to an extenuatmg Circumstance, m t e present case, h . t ere IS no . h . evidence th1t the appellant believed in witchcraft at the time of killing his w fe; and he did not raise this particular defence in his evidence before the trial Court. Mr. Ma empela argued that there was a big difference between a belief and dream in that a belief goes to the mental framework of the person, to the effect that he had it in his mind and actually believed thr the person he killed was practicing witchcraft. Whereas a dream is a hallucination, while a person is asleep, of facts which re not true and have nothing to do with reality. It was submitted t at the appellant's explanation in his defence, did not disclose an)fthing about his belief in witchcraft. He knew that he used to sle I with his wife in their hut, but deliberately got an axe and hacked her with it without any concern about her. JlO We have considered the appellant's ground of appeal and the written headl of arguments presented before us. We have also carefully exaiined the judgment of the trial Court. In the Mbomena Moola easel6J, we set aside the death sentence and in its place, we imposed a sentence of 15 years imprisonmeJt with hard labour, after finding that there were extenuating bircumstances in the case which rendered the death sentence inJppropriate. This finding was based on the evidence which was o~ record, to the effect that the appellant believed that his own fath r was a wizard who had killed his children. This belief appeared in the appellant's evidence before Court and had been confirmed b a prosecution witness (PW2)who testified earlier than the appella . As already observed by Mrs. Manda, we did observe, in that case that many communities believe in witchcraft and that however u reasonable, it must be held as an extenuating circumstan Iewhich the learned trial Judge should have taken into account. We t e note, III the present case, that the existence or otherwise 0 the belief in witchcraft is a matter of fact to be decided Hi • on the merits of each case. The facts relating to the belief in witchcraft in the Mbomena easel") are clearly distinguishable from the present Icase. In the present case, there was no evidence supporting the notion that the appellant haboured a belief in witchcraft. secondr the subject of the appellant's wild dream was his wife's grandfather and not his wife. If there was any truth or reasonablen Iss in the appellant's explanation, the person who should have been the target of his reaction should have been the wife's grand ther who did not sleep in the appellant's hut. Thirdly there simply was no evidence that the appellant believed th~t his wife practiced witchcraft to warrant the most violent react on from him; which he brazenly displayed by using an axe with su h full force that the entire axe blade got imbedded III the decease's body. Lastly, the appellant's conduct after he brutally killed his wife does not su gest any belief in witchcraft at all. He stated that out of fear for hat he did, he laid her on the bed, covered her with a )12 • blanket and went to hide for four days. He left the front door of his house open It a very awkward hour of the night. If we were to accept, which we do not, that I the appellant believed that he had hacked a Wil~pig, we wonder why he put the pig on his bed and covered it with his blanket before fleeing away from the scene. This I can never atount to normal behaviour of an ordinary member of his commumty; no doubt he was apprehended by members of his own commumty. I. Mrs. M nda's arguments also suggest that a bad dream or nightmare which inspires a murder should be considered as extenuating ircumstances. This suggestion, in our view, cannot be reconciled .th the general requirements of the doctrine of 'mens rea' or the state of the mind of the convict at the material time he committed tie act constituting the offence. The material time must be the time e picked his axe and hacked his wife's body while she slept. There is no evidence to suggest that he was sleep-walking when he di that. In addition, there is no evidence to suggest that he had tak,n any hallucinogen before sleeping which would have induced hallucination. In any event, the suggestion that dreams or J13 , _, to - nightmares should be considered, . IS completely unsupported by any known' principle of evidence. These do not constitute facts , - ., - in the same manner capable of being proved, that a belief in witchcraft JOUld be proved or established. As Mr. Masempela correctly stlted, a belief and a dream are completely different; a dream is de 10idof facts. To qualify for consideration as extenuating circumstanrs, a fact genuinely believed must not only remain in the believer s mind, it must also manifest itself in the evidence on record, and it must be related to the homicide in issue; and more importantly it should not be aimed at any innocent person. We fin no merit in this appeal and we dismiss it. liJL~: ~ G'. S. Ph!r! SUPREME COURT JUDGE , E. C. Muyovwe SUPREME COURT JUDGE \ .------- F. M. Lengalenga AG{SUPREME COURT JUDGE J14