George Mweba Banda v The People (APPEAL NO. 38/2024) [2025] ZMCA 27 (26 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 38/2024 HOLDEN AT LUSAKA (Criminal Jurisdiction) B ETWEEN: GEORGE MWEBA BANDA AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube,. and Chembe , JJA On 18th February, 2025 and 26t h February, 2025. For the Appellant Mrs. C. M. Makoza - Legal Aid Legal Aid Board For the Respondent Mr. S . Mainza - State Advocate National Prosecution Authority JUDGMENT Chem be JA delivered the Judgment of the Court Cases referred to: 1. Saluwema v The People (1965) ZR 4 2 . Mbomena v The People (1967) ZR 89 3 . R v Byrne 44 Cr. App R 246 4 . flunga Kabala and John Masefu v The People (1981) ZR 202 (SC) 5 . Nicholas Bwalya Mwabuka v The People SC Appeal No. 4 72/ 2013 6. Khupe Kafunda v The People (2005) ZR 31 (SC 7. Joseph Mutaba Tobo v The People (1991) ZR 8. Mushanga v The People SCZ judgment No. 18 of 1983 Legislation referred to: 1. The Criminal and Procedure Code Chapter 88 of the Laws of Zambia L O INTRODUCTION 1. 1 The Appellant was convicted for murder and sen tenced to life imprisonment by W. S . Mweemba J. 1.2 The prosecution's evid ence, in a nutshell, was that on 24th October 2020 , the Appellant followed his wife of 5 months to her village. Whilst there a quarrel ensued b etween th e two which caused the Appellant's wife to run away leaving h er two year old d aughter in the house. 1. 3 When she went back the following morning she could not find h er daughter or the Appellant. She went to his village and spoke to his sister, PW3, who inform ed her that the Appellant h ad returned to the village alone and was carrying a blood stained chiten ge and slippers . He h a d appeared disturbed a nd was threatening to end his life . J2 1.4 The matter was reported to the police and the Appellant was apprehended on 27 th October 2020. Whilst in police custody his cousin, PW4, visited him. He admitted to her that he had killed the child and hidden her body in a field. 1. 5 The Appellant subsequently led the police to the recovery of the deceased's body in the field . A post mortem examination was later conducted on the body of the deceased which revealed the cause of death to be broken skull due to homicidal violence. 1.6 In his defence, the Appellant denied having killed his step daughter. He explained that the quarrel with his wife became physical when he hit her with a fist on the chest. At the time she was carrying the baby on her back. She fell on her back and injured the child. 1. 7 It was his testimony that she took the injured child from her back and handed her to him whilst should shouting that he had killed her. She then ran away. The Appellant carried the child to his father in law's house who refused to accept her. He then decided to go with the child to his village. Along the way, h e realised that the child had died and decided to hide the body. J3 1. 8 He then proceeded to his village wh ere he informed his r elatives that the child had died. He decided to h and him self over to the police but chose to do so in Chipata. He denied having admitted killing th e child. 1. 9 During the trial, the Appellant was r eferred for a m edical examination to determine his state of mind at the time of commission of the offence. The m edical examination revealed no evidence of overt mental illne ss. The Psychiatrist concluded th at th e Appella n t h a d been emotionally upset and suffered a brief psych otic disorder at the time of the alleged offence. 2 .0 DECISION OF THE TRIAL COURT 2 . 1 After careful consideration of the evidence the trial Court found that there was sufficient circumstantial evidence that linked the Appellant to the commission of th e offence. The Appellant's explanation was rejected. The Appellant was convicted as charged. 3 .0 THE APPEAL 3 .1 Aggrieved by the decision of th e trial court, the Appellant has a ppealed to this court fronting the following grounds: J4 i. The lower court erred in law and fact when it rejected the Appellant's version of events which was not only probable but possible which version was corroborated by the findings in the post mortem report. ii. The trial court erred in law and in fact when it failed to consider the defence of diminished responsibility available to the Appellant as t he reasons for his actions causing the death of the deceased. 3 .2 In support of the 1st ground of appeal, the Appellant submitted that his version of events was reasonably possible and should not have been rejected by the trial court. He argued that the findings in the post mortem report that the deceased sustained a fractured skull which was caused by blunt force tr auma supported the view that the injuries resulted from a fall. We were referred to Rudolph Augus t Witthaus and Tracy Chatfield in Medical Jurisprudence - Forensic Medicine and Toxicology where it was stated that fracture of the base of the skull usually occurs from a fall. 3 .3 Relying on the case of Saluwema v The People 1 , the Appellant submitted that in view his explanation, it could not b e said that the prosecution had proved its case b eyond r easonable doubt that he caused the deceased's death with malice aforethought. JS 3 .4 In relation to the 2 nd ground of appeal, it was submitted that the court ought to have considered the defence of diminished responsibility which was available to the Appellant. Reference was made to th e case of Mbomena v The People2 where it was h eld that wh ere there is evidence supporting a defence not raised by the accused, it must be considered by the court. 3 .5 Our atten tion was drawn to the case Section 12A of the Criminal Procedure Code for the definition of diminished responsibility and its application and the case of R v Byrne3 . It was submitted that the Psychiatrist who examined the Appellant formed the opinion that h e suffered from a brief psychotic disorder which compromised his judgm ent. 3 .6 It was submitted further that PW3 had confirmed that the Appellant had a history of insanity . The trial judge would have arrived at a differ ent conclusion if he had considered the Appellant's mental condition. We were urged to set aside th e conviction and allow the app eal. 4. 0 RESPONDENT'S ARGUMENTS 4 .1 In response to the 1st ground of appeal, the Respondent submitted that the evidence revealed fac ts that pointed to the J6 Appellant's guilt. The Respondent r ecounted that the evidence showed that the Appellant had attempted to hit the d eceased's mother who ran away leaving the child behind. 4 .2 The Appellant's explanation that the child died as a result of a fall was not supported by the evidence that he failed to inform his own relatives about it despite being questioned about th e blood on his body and chitenge. He instead opted to hide the corpse in the bush. 4. 3 It was argued that the evidence revealed odd coincidences which according to the case of llunga Kabala and John Masefu v The People4 can be supporting evidence if unexplained. 4.4 As to the cause of death, the Respondent submitted that the post mortem report stated that the cause of death was homicidal violence. 4. 5 In r elation to the 2 n d ground of appeal, the Respondent submitted that the defence of diminished responsibility provided by section 12A of the Criminal Procedure Code was only available to a person who suffered from an abnormality of the mind which substantially impaired his mental responsibility for any acts or omissions. J7 4 .6 It was contended that the Appella nt did not raise the defence in the court b elow and it was therefore an afterthought. It was submitted further that the conduct of the Appellant was not consistent with that of a p erson with an abnormality of mind as h e had distanced himself from the commission of the offence. To buttress this submission, we were referred to the case of Nicholas Bwalya Mwabuka v The People5 in which th e Supreme Court sta ted that a p erson with diminished r esponsibility could n ot have put up such a defence or recollected events at the scene. 4. 7 A fur ther argument by the Respondent wa s that th e Appellant gave a carefully reasoned defence which could not have been made by a p erson with diminished responsibility. We were urged to dismiss the appeal. 5 .0 HEARING 5.1 At the h earin g of th e matter, both parties relied on their written arguments. 6 .0 COSIDERATION AND DECISION 6.1 We h ave carefully considered the record of a ppeal, th e arguments by both sides and the judgment impugned. The J8 appeal raises the question of whether the Appellant's explanation created doubt there by rendering the prosecution's case to be unproved to the required standard and whether th e defence of diminished responsibility was available to the Appellant on the evidence adduced. 6.2 We must hasten to point out that the Appellant's grounds of appeal should have been argued in the alternative as the defence of diminished responsibility presupposes that the accused committed the offence but cannot be fully liable due to his mental state. In the first ground of appeal , the Appellant denies committing the offence and maintains that the child died accidentally when her mother fell on her during a physical confrontation. 6.3 In the 1st ground of appeal the Appellant relies on the case of Saluwema v The People (supra) and argues that his explanation was reasonably possible and should have been accepted by the trial court. In that case the Supreme Court held that: "If the accused's case is reasonably possible even though not probable, then a reasonable doubt exists and the J9 prosecution cannot be said to have d ischarged its burden of proof." 6 .4 We hold the view t hat the above proposition can only apply where the accused's explanation is credible . In the present case, there was overwhelming circumstantial evidence together with the admission that the Appellant made to PW4. The evidence established that the Appellant was engaged in a physical altercation with PW 1 who fled leaving her two year old child behind. 6 .5 The Appellant took the child but did not reach his village with her. He was seen with a blood stained chitenge and blood stains on his body which he failed to explain away. He did not inform his relatives that the child had died and ran away from the village. He only admitted having hidden the deceased 's body in a field after his apprehension. His explanation that the child died when his mother fell on her is negated by his conduct. 6 . 6 The fact that there were blood stains on h is body and the chitenge shows that the child was injured and bleeding as he carried her to his village. It's illogical that he did not seek medical help but opted to hide the corpse when he realised she had died. This conduct suggests guilty knowledge. If indeed the JlO child had died in the circumstances he explained, he would not have hidden her body. He also admitted to his cousin that h e killed the child along the way and admitted that she had no motive to lie against him. 6 . 7 His odd beh aviour when h e got to his village of bidding farewell and threatening to kill himself suggests that he had done something wrong. 6 .8 We, therefore , d o not agree that the Appellant's explanation was reasonably possible in view of the evidence adduced. The 1st ground of appeal lacks m erit and fails. 6 . 9 As for the 2 n d ground of appeal, the Appellant's contention is th at the trial judge should have considered the evidence that h e suffered from a mental illness which diminished his responsibility for his actions. We note from the r ecord that the trial court ordered that th e Appellant be m edically examined to establish his state of mind at the time of commission of th e offence . 6 .10 Upon b eing examined, the Psychiatrist found that the Appellant did not suffer from any mental illness. However, based on the history provided to him , he opined tha t the Appellant h a d Jll suffered from a brief psychotic episode when he committed the offence. 6.11 The record of appeal also shows tha t PW4 testified that the Appellant suffered from episodes of insanity. 6 . 12 However, our understanding of the defence of diminished r esponsibility created under section 12A of the Criminal Procedure Cod e is that it applies to those who have an a b normality of t h e mind resulting from retarded d evelopment, disease or injury. 6 . 13 Section 12A ( 1) of the Criminal Procedure Code provides as follows: "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from an abnormality of the mind (whether arising from a condition of arrested development of m i nd or any inherent causes or is induced by disease or iniury) which has substantially impaired h is mental responsibility for acts or omissions in doing or being party to the killing. " (Our emphasis) 6. 14 In casu, the Psychiatrist's findings did not establish that the Appellant fell into the category of people envisaged by section 12A of the Criminal Procedure Code. He was categorical that J12 there was no evidence that th e Appellant suffered from any mental illness. 6 .1 5 The Appellant shou ld have called the Psychiatrist to exp lain his findings if h e intended to rely on th e defence of insanity or diminished r esponsibility . There was no m edical evidence before the lower court to show that the Appellant suffered from an a bnormality of the mind. The duty to establish this lay on the Appellant. In th e case of Khupe Kafunda v The People6 , the Supreme Court held that: "The onus of establishing unsoundness of mind at the time of the commission of the offence is on the accused." 6 .16 In the case of Joseph Mutaba Toho v The People 7 , the Suprem e Court h a d the occasion to consider the defence of insanity or mental incapacity . In that case the Supreme Court referred to the case of In th e case of Mushanga v The People 8 in which the following was stated: "On an issue of mental disability, the medical evidence presented to the trial court may or may not be conclusive. However the Court is bound to consider the medical evidence together with all other relevant evidence. It s J13 quality and weight will be assessed in light of all the other facts and circumstances of the case. But, as the cases which we have already mentioned indicate, medical evidence will usually be considered to be more reliable than the assertions by or on behalf of an accused. In this regard we are satisfied that the submissions, to the effect that the doctor's opinion in this case should be overturned, hold no attraction for us. " 6 .17 In view of the a bove, it was imperative for the Appellant to call the doctor who examined him to explain his findings to the trial court. 6 .18 Further, the Supreme Court in the case cited by the Responden t of Nicholas Bwalya Mwabuka v The People (supra) had occasion to consider the defence of diminished responsibility. In that case the Supreme Court guided that a person with diminished responsibility could not formulate a proper defence. 6.19 In the present case, the Appellant was able to give a well reasoned defence in which he logically explained what happened on the fateful day. Jl4 6 .20 We are of the view that the defence of diminished responsibility was not available to the Appellant for the foregoing reasons. We accordin gly cannot fault the trial Court for not considering the issue of diminished responsibility as there was no evidence t o support it. The 2 n d ground of appeal lacks merit and fails. 7.0 CONCLUSION 7 . 1 Both grounds of appeal having failed, we find no basis for interfering with the decision of the lower court. The appeal lacks merit and we dismiss it. f(L P. C. M . NGU LUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE JlS