Esther Nkhata v the People (APPEAL NO. 120 OF 2020) [2021] ZMCA 238 (21 April 2021)

• IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 120 OF 2020 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: ESTHER NKHATA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Chashi, Lengalenga and Ngulube, JJA ON: 25th March and 21st April, 2021 For the Appellant: M. Makinka, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: C. Sako (Ms), Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. David Zulu v The People ( 1977) ZR, 151 2. Bwanausi v The People (1976) ZR, 103 -J 2- 3. Emmanuel Phiri and Another v The People (1978) ZR, 79 4. Mbinga Nyambe v The People (2011) ZR, 246 5. Nicholas Malaya v The People - SCZ Appeal No. 29 of 2017 6. Bwalya v The People ( 1975) ZR, 227 7. James Kape v The People (1977) ZR, 192 8. Peter Yotamu Haamenda v The People (1977) ZR,184 9. Charles Lukolongo and Others v The People ( 1986) ZR, 115 10. The Attorney General v Marcus Achiume (1983) ZR, 1 11 . Patrick Sakala v The People ( 1980) ZR, 205 12 . Major Isaac Masonga v The People - SCZ Judgment No. 24 of 13 . Saidi Banda v The People - SCZ Judgment No. 30 of 2015 14. Kalebu Banda v The People (1977) ZR, 169 15. Robson Kapulushi, Wehby Kanyakula, Frankson Kapulushi and Watson Masikini v The People (1978) ZR, 200 Legislation Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION -J 3- 1.1 When we heard this appeal on 25 th March 2021, we sat with Honourable Mrs. Justice F. M. Lengalenga who has since retired. Therefore, this Judgment is by the majority 1.2 This appeal emanates from the Judgment of the High Court, delivered by Honourable Lady Justice M. Chanda, on 24 th February, 2020, in which the Appellant was convicted of the offence of murder contrary to section 200 of The Penal Code 1 and was subsequently sentenced to the death penalty. The Appellant now appeals against conviction. 2.0 CHARGE BEFORE THE TRIAL COURT 2.1 The Appellant and one Mathews Nkhata, who was subsequently acquitted, appeared before the High Court sitting at Chipata charged with the offence of murder contrary to section 200 of The Penal Code 1 . It was alleged that the Appellant and Mathews Nkhata on an unknown date but between 24 th July 2013 and 3 rd August 2013 at Chama in the Chama District of the Muchinga Province of the Republic of Zambia did murder Lucy Zimba, the deceased. 3.0 EVIDENCE BEFORE THE TRIAL COURT 3.1 The prosecution's case against the Appellant was built around -J 4- the evidence of seven (7) witnesses, the combined effect of whose evidence was that, on 22 nd July, 2013, the deceased, who was about eight months pregnant, was admitted to Chama Community District Hospital (maternity ward), as she had some water discharge. 3.2 However, on 24 th July, 2013, the deceased disappeared from the hospital. When PWl, the deceased's mother in- law inquired from the other patients in the maternity ward, she was informed that the deceased was seen leaving the hospital with a person believed to be the Appellant. This was also confirmed by PWS, who met the deceased and the Appellant along the road. The deceased never returned to the hospital. 3.3 The following day, the search for the deceased began. The deceased's relatives, went to a house believed to be that of the Appellant, where they found the Appellant with a new born baby. When asked about the deceased, the Appellant denied having any knowledge about her whereabouts. She alleged that the deceased went back to the hospital on 24th July, 2013. -J 6- the cause of death was suffocation with a cloth. The deceased was buried the same day. 3.8 It was further the prosecution case that, the Appellant was then taken back to the hospital for further examination which revealed that, she had not recently been delivered of a baby and that the baby was not hers. The police accordingly charged and arrested the Appellant and Mathews Nkhata for the offence of murder contrary to section 200 of The Penal Code 1 . 3.9 The Appellant denied the charge and though confirming having lured the deceased from the hospital up to the mountains, where she subsequently led the police to the discovery of the deceased's body, she maintained that she did not kill the deceased and that she was acting on the instructions of Mathews Nkhata. 3.10 The Appellant, alleged that while she was married to PW6, she suffered from a condition which prevented her from conceiving and as a result, she approached Mathews Nkhata, who was a well-known traditional healer to help with her condition. Mathews Nkhata then gave the Appellant some medicine to consume. However, when the medicine did not -J 7- yield any results , Mathews Nkhata informed the Appellant that the medicine would have to be administered by a pregnant relative. 3.11 The Appellant then met the deceased at Chama Community District Hospital and informed her of the instructions she had received from Mathews Nkhata and that the deceased agreed to go with her. They proceeded to Mathews Nkhata house who then inf armed them that the medicine had to be administered in the bush. Whilst in the bush, the deceased gave the Appellant the medicine which she drank. The Appellant then left the deceased and Mathews Nkhata in the bush and proceeded home . She was also warned not to look behind or else she would run mad or turn into a cow. 3.12 On the same day, around 13:00 hrs, Mathews Nkhata in the company of a Mr. Mutukwa arrived at the Appellant's house with a baby in a plastic bag and threatened to kill her if she told anyone . She alleged that, when she asked about the whereabouts of the deceased, she was warned not to ask about her. She claimed that when she insisted that Mathews Nkhata collect the baby, he declined and threatened her. -J 8- 3.13 The following day, the Appellant went to the hospital where she registered the child as Richard Mbulo and PW6 as the father of the child. She further testified that Mathews Nkhata warned her not to disclose any information regarding the deceased when the deceased's relatives came looking. 3.14 The Appellant confirmed that indeed when the deceased's relatives confronted her, she did not disclose any information because she was afraid. However, she later on informed the police that the baby was not hers and that it is Mathews Nkhata and Mr. Mutukwa who gave her the baby. 3.15 In cross examination, the Appellant confirmed having led the police to the scene of incident but alleged that the only reason she knew the place is because that is where she consumed the medicine. Further that, she took the deceased from the hospital with the intention of taking her back. 3.16 Still under cross examination, the Appellant told the court that she believed the baby belonged to the deceased because she left the deceased with Mathews Nkhata. She further informed the court that, she believed that having a baby would save her marriage and that is why she pretended to be pregnant. -J 9- 3.17 Mathews Nkhata denied any involvement in the offence and denied knowing the Appellant and even the deceased. 4.0 DECISION OF THE LOWER COURT 4.1 Upon considering the evidence before her and establishing the undisputed facts, the court framed one issue for determination; whether the Appellant and Mathews Nkhata were the ones who killed the deceased in the hills. 4. 2 The lower court took note of the fact that, there was no eye witness to the murder of the deceased and as such, the evidence linking the Appellant and Mathews Nkhata to the commission of the offence was purely circumstantial. The learned Judge, referred to the cases of David Zulu v The People 1 and Bwanausi v The People2 on the legal position regarding circumstantial evidence. 4.3 The lower court, then found that, there were a series of odd coincidences which linked the Appellant to the offence and that there were inconsistencies in the evidence of the Appellant with regard to important issues. The learned Judge, therefore, concluded that the Appellant's credibility had been -J 10- impeached and her evidence was an afterthought and she disregarded it. 4.4 The court was of the view that, the Appellant having been in the area where the murder took place and having been found in possession of the deceased 's baby thereafter, had the opportunity and time to commit the offence and that, the only irresistible inference that could be drawn from the facts is that, the Appellant had a suitable occasion to strangle the deceased and extract the baby from her womb. 4.5 According to the Judge, the act of suffocating and cutting the deceased's stomach open with a view of removing her baby, was done with malice aforethought as defined under section 204 of The Penal Code 1 . In the absence of extenuating circumstances, the Appellant was accordingly convicted of the subject offence and sentenced to death. 4.6 With regard to Mathews Nkhata, the learned Judge was of the view that there was insufficient evidence connecting him to the offence and accordingly acquitted him. 5.0 GROUNDS OF APPEAL -J 11- 5.1 Dissatisfied with the Judgment of the lower court, the Appellant has appealed to this Court advancing a sole ground of appeal, couched as follows: 5.1.1 The trial court misdirected itself in law and fact when it convicted the Appellant on circumstantial evidence when the inference of guilty was not the only reasonable inference that could be drawn from the facts of the case at hand. 6.0 ARGUMENTS IN SUPPORT OF APPEAL 6.1 Counsel for the Appellant, Mr. Makinka, relied on the filed heads of argument and briefly augmented the same with oral submissions. 6.2 In support of the appeal, Counsel relied on the case of Mbinga Nyambe v The People 4 and submitted that based on the evidence adduced before the lower court, there were several other inferences that could have been drawn other than that of guilt. It was argued that while the lower court based its conviction on odd coincidences, such coincidences were capable of being explained as fallows; 6.3 With regards to the fact that the Appellant was last seen with -J 12- the deceased, it was argued that, there was no evidence on record suggesting that there existed any animosity between the deceased and the Appellant prior to the incident. That, in fact, the evidence of PWS, who met the deceased and the Appellant on the way suggests th at the two were in good terms, as the duo even greeted him. In support thereof, Counsel referred us to the case of Nicholas Malaya v The People. 5 6.4 With regard to the fact that the Appellant was found with the deceased's baby for which she had no plausible explanation. Counsel argued that, it was not proved beyond reasonable doubt that the baby found in possession of the Appellant was the baby extracted from the deceased 's womb. That, there was no DNA analysis conducted on the baby in order to determine that indeed that was the deceased's baby. 6.5 In addition, it was argued that PW7 , the arresting officer failed to establish who authored the ante-natal card and the book issued at the hospital. It was argued that, had this been investigated, it could have confirmed beyond reasonable doubt that the baby in issue belonged to the deceased. -J 13- Furthermore, the lower court failed to take into account the Appellant's explanation as to how she came in possession of the baby, which is that she was given the baby by Mathews Nkhata and Mr. Mutukwa. 6.6 It was further submitted that, the lower court in arriving at its decision, also relied on the fact that the Appellant's desire to bear a child influenced her decision to lie about being pregnant and that her behaviour when confronted by the deceased's relatives was highly suspicious and pointed to a guilty mind. 6. 7 According to Counsel, on the contrary, the behaviour of the Appellant was consistent with that of an innocent person. It was argued that, a man charged with an offence may well seek to exculpate himself on a dishonest basis even though he was not involved in the offence. Counsel relied on the cases of Bwalya v The People 6 and James Kape v The People. 7 6.8 Relying on the above authorities, Counsel submitted that there is evidence from the Appellant that she withheld some information because Mathews Nkhata and Mr. Mutukwa threatened to kill her if she revealed what she knew about the -J 14- matter. According to Counsel, this must have caused some panic. 6. 9 With regard to the inconsistencies referred to by the trial court at page 194 of the record, Counsel argued that they could have been attributed to the fact that the Appellant was afraid of Mathews Nkhata and Mr. Mutukwa and also due to the fact that she was intensively interrogated. 6.10 Counsel further contended that, there was dereliction of duty on the part of PW7, the arresting officer in that he did not thoroughly investigate the case. Counsel went on to give examples such as the fact that PW7 did not investigate or obtain a statement from the old lady, believed to the Appellant's mother who informed the deceased's relatives that the deceased had visited them. According to Counsel, her evidence would have been cardinal, in light of the fact that there was evidence on record suggesting that she assisted in the child delivery. 6.11 Further that, there was also evidence at page 139 and 166 of the record, that the Appellant had left the deceased in the company of Mathews Nkhata and a Mr. Mutukwa in the hills and that strangely enough, the said Mr. Mutukwa was also at -J 15- the scene of incident when the Appellant led PW7 to the recovery of the body. According to Counsel, it was an odd coincidence that Mr. Mutukwa was never investigated nor interviewed to offer an explanation for his presence. It was argued that this odd coincidence corroborated the Appellant's story. 6.12 It was further pointed out that the footprints at the scene of incident were not examined by the police in order to determine whether they matched those of the Appellant. In addition, that the blood-stained knife and kwacha notes which were supposedly taken for forensic analysis, were not produced before court. In support thereof, reliance was placed on the case of Charles Lukolongo and Others v The People. 9 6.13 According to Counsel, the explanation proffered by the police to the effect that the forensic department had no re-agents cannot be sustained in the absence of any document or personnel from the forensic department confirming the same. 6.14 At the hearing of the appeal, Counsel submitted that there was more evidence on record showing that the Appellant was innocent. Such evidence being that the Appellant voluntarily -J 16- went to the police on her own accord, which was confirmed by PW7 during cross examinations. 6. 15 Further that PW7 did not investigate if indeed Mathews Nkhata was a witch doctor at the earliest possible time, when the Appellant gave her statement. It was argued that, had the police pursued this line of investigation, they would have ascertained at the earliest opportune time the assertion by the Appellant that Mathews Nkhata was a witch doctor or not. 6. 16 It was also argued that there was no evidence that the missing organs of the deceased were found with the Appellant. As such, the possibility of ritual killings in the circumstances of the case were not ruled out. That based on the foregoing, an inference of guilt was not the only reasonable inference that could have be drawn from the facts of the case. 6.17 We were urged to allow the appeal, set aside the conviction and acquit the Appellant. 7.0 ARGUMENTS OPPOSING APPEAL 7.1 Counsel for the Respondent, Ms. Soko, began by submitting that upon reviewing the record of proceedings, the lower court -J 17- concluded that the Appellant was the last person seen with the deceased and that she was subsequently found with the deceased's baby. According to Counsel, this finding of fact was made in the absence of any medical evidence. As such there was a misapprehension of facts and she therefore asked us to pronounce ourselves on it. We were referred to the case of The Attorney General v Marcus Achiume. 10 7 .2 In addition, Ms. Soko concurred with Counsel for the Appellant regarding the challenges raised over the manner in which the investigations in this matter were conducted. According to Ms. Soko, the said issues were not adequately dealt with by the lower court in its Judgment. 7.3 Counsel then proceeded to submit on the evidence supporting the conviction of the Appellant, which is the undisputable fact that the Appellant was not only the last person seen with the deceased but also that she is the one who led the police to the recovery of the body of the deceased. According to Counsel, these undisputable facts lend credence to the Appellant's involvement either prior or post the murder of the deceased. Counsel relied on the case of Patrick Sakala v The People. 11 7. 4 Counsel contended that, should we be inclined to find the -J 18- evidence of the Appellant to be reasonably true, then we should alternatively, find the Appellant guilty of being an accessory after the fact contrary to section 397 and 398 of The Penal Code 1 . That, this can be inferred from the fact that the Appellant was given a new born baby by persons whom she had recently left in the company of an expecting mother. 7.5 We were urged to analyse the evidence on record with particular regards to the issue raised by the Appellant's Counsel and pronounce ourselves on the issue of cogency with regards to a case such as this one where the Appellant's explanation of events has been consistent from outset and has to a certain extent been corroborated 1n cross examinations. 8.0 ARGURMENTS IN REPLY 8.1 In reply, Mr. Makinka referred us to the case of Major Isaac Masonga v The People 12 regarding the failure by the police to conduct thorough investigations and submitted that in this instant case, the quality of investigations had a telling negative impact on the innocence of the Appellant. -J 19- 9.0 DECISION OF THIS COURT 9 . 1 We have considered the evidence on record and the Judgment of the lower court. We have also considered the arguments by both Counsel. 9.2 We note, as did the trial Judge that, there was no direct evidence linking the Appellant to the offence, as such, this case was assembled entirely on circumstantial evidence. The legal principles on circumstantial evidence have been clearly spelt out in various authorities to guide this Court. The leading authority being the case of David Zulu v The People 1 the Supreme Court held as follows: ''It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the facts in issue and from which an inference of the facts in issue may be drawn. It is incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the -J 20- realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilty." 9.3 Further in the case of Saidi Banda v The People 13 , the Supreme Court stated as follows: "The law with respect to circumstantial evidence has been restated many times by this court, and it is that, in order to convict based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt. .. " 9.4 Based on the above cited authorities, it is clear that in order to secure a conviction entirely or substantially upon circumstantial evidence, it is imperative that the guilt of the accused person should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances of the case. Where the circumstances are compatible with the innocence of the accused or create sufficient doubt, the court is entitled to acquit for lack of evidence. 9.5 Therefore, it is our view, that the issue that falls for determination 1s whether there was cogent and compelling -J 22- being pregnant and was subjected to medical tests on separate occasions which proved that she was not pregnant. 9.9 The Appellant's behaviour was highly susp1c1ous and compatible with that of a guilty person. In addition, the Appellant's failure to disclose what transpired when the deceased was taken from the hospital. 9. 10 We have carefully perused the evidence on record and agree with the trial Judge that the said pieces of evidence highlighted above formed the circumstantial evidence linking the Appellant to the offence. 9.11 In addition, we have also taken note of the evidence of PWS, who testified to the effect that he met the deceased and the Appellant along Lundazi road, which evidence the Appellant confirmed. This is the same road that led to the mountains where the deceased's body was subsequently found. 9.12 Taking into account the above cited authorities on circumstantial evidence, we are satisfied that the said pieces of evidence when considered together, do take the case out of the realm of conjecture and lead to one irresistible conclusion that the Appellant committed the offence. -J 23- 9.13 We are of the view that, between the Appellant luring the deceased from the hospital and the Appellant being found in possession of a new born baby, there were no intervening factors to weaken or dislodge the inference of guilt. The circumstantial evidence unerringly points to the guilty of the Appellant. With regards to the absence of the DNA analysis to prove that the baby found in possession of the Appellant was the same baby extracted from the deceased's womb, we hold the view that, the lower court in arriving at its decision, considered the chain of events that led it to the conclusion that it is the Appellant who killed the deceased and extracted the baby from the deceased's womb. In the Saidi Banda case, the Supreme Court held that: " ... Where the prosecution's case depends wholly or in part on circumstantial evidence, the court is, in effect, being called upon to reason in a staged approach. The court must first find that the prosecution evidence has established certain basic facts. Those facts do not have to be proved beyond reasonable doubt. Taken by -J 24- themselves, those facts cannot, therefore, prove the guilt of the accused person. The court should then infer or conclude from a combination of those established facts that a further fact or facts exist. The court must then be satisfied that, those further facts implicate the accused in a manner that points to nothing else but his guilt. Drawing conclusions from one set of established facts to find that another fact or facts are proved, clearly involves a logical and rational process of reasoning. It is not a matter of casting any onus on the accused, but a conclusion of guilt a court is entitled to draw from the weight of circumstantial evidence adduced before it." 9.14 It is clear from the evidence on record that the prosecution evidence established certain basic facts which the lower court found to be undisputed at page J16 of Judgment, namely; that the deceased was lured from the hospital bed at Chama hospital and taken to the hills along Lundazi road by the Appellant. The Appellant was later found in possession of a new born baby and that on 3 rd August, 2013 the Appellant led PW7 to the scene of incident where the deceased was ' • -J 25- discovered murdered. And that the cause of death was suffocation using a cloth. 9.15 As earlier indicated, we hold the view that the events leading to the death of deceased formed a chain so closely knit together without any breakage or interruption. Therefore, in light of the holding in the Saidi Banda case 13 , the only inference that can reasonably and logically be drawn from the combination of the established facts is that the baby found in possession of the Appellant was the same baby extracted from the deceased's womb. In the instant case, it was not necessary to call for medical evidence to confirm that the baby found in possession of the Appellant belonged to the deceased. 9.16 With regard to the om1ss1on by the police to examine the footprints at the scene of incident. While we do agree with Counsel for the Appellant that the failure by PW7 to examine the footprints at the scene of incident amounted to a dereliction of duty and raised a rebuttable presumption in favour of the Appellant, we are of the considered view that the evidence on record is so overwhelmingly convincing so as to dislodge the said presumption. The Appellant in her own -J 26- evidence confirmed that she was at the scene of the incident. We are fortified by the case of Peter Yotamu Haamenda v The People, referred to by Counsel for the Appellant where the Supreme Court held inter alia that: "(i) Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the investigating agency fails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result; in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the dereliction of duty." 6.18 With regard to the failure to produce the blood-stained knife and bank notes which were allegedly taken for forensic analysis, Counsel cited the case of Charles Lukolongo case9 , where it was held that: -J 27- "Where evidence available only to the police is not placed before the court, the court must presume that, had the evidence been produced, it would have been favourable to the accused. This presumption can only be displaced by strong evidence." 9 . 17 However, in the case of Kalebu Banda v The People 14 , cited in the Charles Lukolongo case9 , the supreme Court went on to state that; "The presumption will not necessarily be fatal to the prosecution case; "favourable" means "in favour of', not "conclusive". The extent of the presumption will depend on the nature of the evidence in question and the circumstances of the case, it is an item of evidence presumed to exist, but its probative value will depend on the facts. The presumption is simply notional evidence to be considered along with all the other evidence in the case." 9.18 Further 1n the case of Robson Kapulushi, Wehby Kanyakula, Frankson Kapulushi and Watson Masikini v The People 9 , it was observed that the presumption that may -J 28- arise from any case of dereliction of duty, is displaceable by strong evidence to the contrary. 9.19 In light of the forgoing authorities, we are of the view that there is very strong circumstantial evidence on record as highlighted under paragraph 9.7 - 9.13 above, which evidence has displaced the presumption in favour of the Appellant. 9.20 On the whole of the evidence, the inculpatory facts on the record are incompatible with that of an innocent person. We are satisfied that the Appellant was possessed with the requisite malice aforethought as envisaged in section 204 of The Penal Code1, as she was armed with the knowledge and realization that grievous harm or death was a probable consequence of her actions. The trial court dealt with this case correctly and therefore, the sole ground of appeal fails. 10.0 CONCLUSION 10.1 For all the above reasons, we are of the view that the conviction of the Appellant was safe and is hereby sustained. .. _, I -J 29- We also confirm the death penalty i osed on the Appellant. J. CHASHI COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE