Director of Public Prosecution v Banda and Ors (Appeal 112 of 1990) [1991] ZMSC 26 (8 January 1991)

1 IN THE SUPREME COURT OF ZAMBIA Appeal no. 112 of 1990 HOLDEN AT LUSAKA (Criminal jurisdiction) . •' Ji THE DIRECTOR OF PUBLIC PROSECUTIONS Appeallant -v- * ..... ,.' J CHRISTOPHER BANDA AND OTHERS Respondent " CORAM: Ngulube, D. C. J., Chaila and Chirwa, JJ. S. On 8th January, 1991 For the appellant: Mr. G. S'. Phiri, Director of Public Prosecutions For the Respondent: Mr. H. Chanda, Senior Legal Aid Counsel JUDGMENT y, ■; ' Ngulube, D. C. J. delivered the judgment of the court Case referred to:- . 'v'.' ■ - , : ■■ • • 1)Patrick Sakala -v- The People (1980) ZR 205 This is an appeal by the Director of Public Prosecutions against an order of acquital of all the respondents, namely, Christopher Banda, Mbonyiwe Banda, Ana Banda, Matrida Banda and Eliya Phiri. The respondents were charged with one count of murder in the first instance, the particulars of which alleged that, they, on 25th April, 1988, at Chadiza jointly and whilst acting together murdered Chrispina Mvula. Early after the commencement of the trial before the learned ■ '■’ y \‘ ■■-y y . y. trial judge, an application was made by the State to reduce the charge to one of manslaughter the particulars of which.were that they unlawfully caused the death of the deceased person. With this develop­ ment, the first respondent, Christopher Banda, pleaded guilty while the rest still maintained their pleas of not guilty. The plea of guilty was recorded in respect of the first respondent and not guilty in respect of the others who thereupon were supposed to enter upon their trial. The case was adjourned for a while to enable the learned prosecuting State Advocate to prepare his facts of the case. When the facts were read out, it transpired that the deceased was suspected 2/.......... to have i I I I. h M i ; f i i I 'I I 9 *1 to have bewitched some relative of the respondents who was gravely ill. The facts further recited that the respondent who had pleaded" guilty and other villagers, forcibly, took the deceased to the house ■ '-<f Ji! where the patient was and ordered her to cure the patient and when this failed, the deceased was beaten up until she became^ unconscious. The first respondent who had participated in such assault then went and handed himself over to the police where he learnt that the deceased had died, • . ... ■.-■■■-W The apparent complication from the learned trial judge's ; point of view, came from the recital of the medical evidence in the facts when the court was informed that ,the postmortem'examination revealed that the cause of death was head injuries with intracranial haemorrhage and suspected poisoning. The learned trial judge thereupon . quizzed the learned State Advocate concerning the suspected poisoning and on being informed that the contents of the deceased's vital organs had been sent to Lusaka ■for analysis but that they had arrived . in a state which was too putrefied for analysis, the learned trial judge then said as follows, and we• quote:,,^ ■ -■ "In this case there are two possible'causes of death, the head injury and the suspected^poIsonIng. This court does not know which of/these possible causes caused the deceased's death. It'could have' been the Injury or the poison. The doctor who conducted the postmortem suspected poisoning and removed even part of the organs of the deceased person with a view to sending them to the public analyst for..:,. examination. Unfortunately,by the time these parts / reached him the public analyst found them unfit for examination and refused to accept them. This shows that this court would never know the truth or as to what really caused the/deceased’s ideath; the result is that I cannot find a case proved against the first accused person, let alone all the other accused persons. I, therefore, find them with no case and acquit them this offence."7 On behalf of the State the learned director has filed a number of grounds and heads of argument to the following effect: The first ground is that the learned trial judge misdirected himself both - - in fact and in law in acquitting the first accused before any evidence was heard; the second ground was that the learned judge misdirected himself by acquitting the accused persons numbered 2 to 5 who pleaded not guilty before hearing any evidence. There are arguments directed towards the essentials of the facts as recited by the prosecuting State Advocate at the trial to support that what the accused who pleaded guilty did was unlawful. There are also arguments .to the effect that there was no evidence to support the mere suspicion of suspected poisoning. On behalf of the respondents, perhaps more accurately as amicus curiae, Mr. Chanda has indicated that he has difficulty in supporting the procedure adopted by the learned trial judge. We have considered all the arguments and the grounds of appeal and we agree that, prima facie, the death was unlawful or at least unnatural and this was so whether the deceased was assaulted or poisoned. It was, in any event,'patently improper to acquit at that ' stage and in such a cavalier fashionJ Once a doubt arises on facts recited on a plea of guilty, the proper and usual step to take is to record a plea of not guilty and then to conduct the rest of the ■bv • inquiry during the trial so as to establish the true facts. As it: is, there may very well also have tjeen other alternative verdicts available to the learned trial judge should the doubt still have persisted at the end of the trial /as to what really caused the. death of the deceased. There might alsp have been legal arguments based on the sections of the Penal Code dealing with causes of death as to . whether or not it really mattered which cause operated and caused the death of the deceased if the evidence could show who was responsible for those unlawful causes. As we have pointed out in the past, the cause of death is not always required to be established by medical evidence only. Other credible evidence can equally suffice. In this respect we refer to the case of Patrick Sakala -v- The'People (1) at page 208 where we discussed the sufficiency of other credible evidence to establish a cause of death. < i- ■ ■ V ’ 1 ■ . ' ; . S • ■ ;#The :■ - : 4 - ... The procedure adopted by the5learned trial Judge in this case" 4 was most unfortunate and highly.irregular. All it did was to defeat the proper cause of justice since doubts concerning the cause of death if arising only at a stage where facts are recited on a plea of ’ * guilty, should be the more reason for the recording of a not guilty plea so that a full inquiry can be conducted and justice done, not C'f only to the accused person, but also to society as well. For the.: 7' “^ reasons which we have given, this appeal is allowed, the order of acquital is quashed and we direct thgt the respondents be brought -;V\. back to court for the trial to continue before the same learned trial judge or for a retrial, to Start before another judge of; the High Court. M. M. S. W. Ngulube M. S. Chaila ‘ DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE