Ndhlovu v People (Appeal 124 of 2011) [2015] ZMSC 72 (3 November 2015)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 124/2011 HOLDENAT,LUSAKA I (Criminal JJiSdictiOn) BETWEEN: GRACEMANASENDHLO AND THE PEOPLE <. J I APPELLANT RESPONDENT Coram: p~iri, Muyovwe, JJS, and Lisimba, Ag.jJS 01 the 8th January, 2013 and 3,d November, 2015 For the Appellant: Mr. A. Ngulube, Director of the Legal Aid Board For the Respondent: Ms. M. Kapambwe Chitundu, Acting Senior State Advocate I I JUDGMENT Phiri, JS, dJlivered the Judgment of the Court Cases refer,ed to: I I 1. Chabala vs. The People (1975) Z. R. 128 2. Kafunda Khupe vs. The People vs. The People (2005) Z. R.311 3. Mbaye vs. The People (1975) Z. R. 74 When we heard this appeal we sat with the Han. Justice M. Lisimba, Acting Judge of the Supreme Court who has since retired. Therefore thil Judgment is by the majority. This is an appeal against conviction. The appellant was tried and convict~d of one Count of the offence of Indecent Assault, contrary to Section 137(1) and (2) of the Penal Code, Chapter 87 of the Laws of Zambia as read with the Penal Code (Amendment Act) No. 15 of 2005. The particulars of offence alleged that the appellant on or between 18th March, and 20th March, 200 , at Chinsali in the Chins ali District of the Northern Province of the Republic of Zambia did unlawfully have carnal knowledge a a named boy aged ten years. She was subsequently sentenced t a term of 17 years simple imprisonment with effect from the datr she was arrested. The facts in common cause were that the appellant was employed b the victim's parents as a housemaid. At the material time, the ap ellant was left to look after the house and take care of the victim c ild while the victim's mother, Paxinah Kamoto (PW2) went to nurse her husband who had fallen sick and was admitted J2 at the hospital. During this time the appellant spent three nights at her emPlOyJ,s horne. The appellant was first implicated by the named victil (PW1), who testified that when his mother (PW2)took his father to the hospital, the appellant shared the same room with him. He slept on his bed while the appellant slept on the floor. Later in the night the appellant carne to his bed and woke him up and orde ed him not to scream. She then started playing with his penis a d forced him into sexual intercourse from which he sustained The appellant warned the victim child that if he t ld anyone she would be taken to jail. The victim informed th garden boy who alerted the victim's mother. The victim could not urinate for three days. The matter was reported to Police and t e victim was admitted to the hospital for treatment. When confro[ted, the appellant confessed to PW2. Upon f rther medical examinations, the victim was found to have contra1ted a combination of two serious sexually transmitted infections, i.e. gonorrhea and syphilis. According to No. 22407, Chief rnspejlor John Katongo, who received the initial complaint from the victim's mother, he apprehended the appellant, and when J3 he checked he victim's private parts, he observed that the child's penis was sLollen with cuts on the foreskin. He took both the I victim and the appellant I equally found with the to the hospital where the appellant was combination of the same sexually transmitted lnfections of gonorrhea and syphilis. Both the victim and the app llant were put on medical treatment. The ca e was investigated by No. 36678 Detective/Sergeant Beatrice MJ nya who arrested and charged the appellant with the subject offe ceo When the appellant was warned and cautioned about the offence, she gave a free and voluntary response admitting the charge. From the record of appeal, it is clear that the written warn and aution statement received from the appellant was admitted in evidence after the accused indicated that she had no objection. oth medical reports were also produced and admitted as part of th prosecution's evidence without objection. In her defence, the appellant elected to gIve an unsworn statement i the followingwords: J4 "Mathews invited me to his bed and I refused, I said you are to~ young, but he insisted. Kabonga tried to remove him b,,:t he refused. We slept together for three days. I felt bad because it was painful. This is all I wanted to tell the Court". I Immediately after the appellant made her unsworn statement, the learned trial Magistrate ordered that she be sent to the hospital for medical examination to determine her mental capacity. The case was adjOurJed a number of times for presentation of a medical report which never materialized. Eventually, the learned trial Magistrate proceeded with the Judgment iJ the absence of the medical examination report. The learned trial Magistrate considered the totality of the evidence I received inLuding the appellant's unsworn statement and concluded tAat the evidence against her was overwhelming. The learned trial Magistrate found as a fact that sexual contact had taken place I' etween the victim and the appellant from which the victim had b~come infected with gonorrhea and syphilis. The Court also accepter the appellant's confession made to PW2 and PW4 including t e written confession admitted as part of the prosecution' evidence after the appellant declared that she had no J5 objection. The learned trial Magistrate also found corroboration in the form of the common sexually transmitted infections which were I found to inflict both the victim and the appellant. I The Court rejected the lppellant's defence that it was the boy who forced her into the selal act. On the basis of these findings of fact, the learned trial Magistrate concluded that the appellant was guilty of Indecent Assault and convicted her as charged. The learned Director of Legal Aid Board filed only one ground of appeal; nimelY, that the trial Court misdirected itself in law by procee mg WIt t e tna WIt out con uctmg an mqUlry w en It was . I . h d' h . .. d. I. h h apparent th It the appellant had a mental disability. In sup ort of the single ground of appeal, Mr. Ngulube argued that the tri I of the appellant was unfair because the trial Court failed, at th earliest opportunity, to order the medical examination nt as to her mental capacity to stand trial. According be, the earliest opportunity was when PW2 in her testimony s id that the appellant seemed not to be normal. It was argued that the appellant's medical examination should have been ordered at t at stage in order to determine her mental capacity to J6 Criminal Procedure Code, Cap 88 oJ the Laws oJ Zambia, were not strictly ddhered to by the learned trial Magistrate and, that the appellan t in Ithis case could be sent back to the lower Court for the determinatiol of her fitness to plead and determination of her state of the mind before the matter could proceed in accordance with the provisions of Section 167 oJ the Criminal Procedure Code, as I I was held in lhe case of Mbaye vs. The Peoplel3). We do not agree with this re est for reasons that will become apparent. The alt rnative argument was that, based on the decision in the case of Chabala vs. The Peoplel'), the appellant's conviction by I the Court be ow was sound because, from the trial Court's record, it is clear that the appellant knew what she was doing, and that what she did was wrong, and the appellant gave a clear defence to the charge; namely, that it was the victim who forced her into a sexual act. It was lerefore argued that the defence of insanity at the time of commissiln of the offence cannot be available to the appellant. On the other hand, Ms Chitundu argued that if an accused person plea s insanity at the time of trial, the test is whether or not he or she ould differentiate between the guilty and not guilty J8 verdicts; properly conduct his or her defence, and recogmze the charge he J she is facing. According to Ms Chitundu, in the present casj it is clear from the lower Court's record that the appellant un~erstood the charge she was facing and she was able to givea prope]1defence. I We ha e carefully considered the evidence on the record of appeal, the Judgment of the trial Court as well as the Judge's notes in the sent ncmg Court. We have also critically examined the ground of ppeal and arguments advanced before us by both parties. The p locedure in cases where insanity or other mental incapacity 0 an accused person is in issue, is outlined in Sections 160 up to and inclusive of Section 167 of the Criminal Procedure Code. The various aspects to the questions of insanity are dealt wil in those provisions; which provisions have also been decisively Jplained in a number of decisions of this Court which include the Chabala casel'!, the Mbaye casel3! and the case of Khupe KafUndar2!. We see no need to repeat what we have said many times before regarding this issue. Suffice it to mention, J9 that however, the learned Director, Legal Aid Board did not complete hisl quotation of our second holding in the Chabala case. Had he done so, he would have made it clear that where an accused person is able to make a proper defence, and the only issue is what was his medtal condition at the time of the offence, it is for him to decide what defence he wishes to put forward and generally to decide how e wishes to run his case; and if he wishes to defend the matter ,ntirelY on the merits without raising the question of insanity; thir is his privilege. The record of appeal in this case shows that the appellant, then aged 36 years, gave her full particulars including her residential dress to the trial Court. She elected to speak in the Bemba Ian age through Court interpreter Friday Simbeya. The statement 0 the offence and the particulars of the offence were read and interprred to her. She indicated to the Court that she understood the charge and she denied it. Thereafter, the Court recorded the plea of not guilty. uently, the case was listed for trial and she was subjected t the trial process. The appellant cross-examined the HO • victim boy-child during trial, and she was eventually found with a case to ansJer, her rights at that moment were explained to her by the Court, lnd she clearly indicated that she would give an unsworn stLement and she was not cross-examined. In her unsworn statement, I the appellant gave a defence, which we have already nartted. At no point in the whole process to which the appellant was subjected, was there an indication from the appellant which necesbitated the consideration of the provisions of the law under sectibn 160 of the Criminal Procedure Code. We have failed to see which earliest opportunity the appellant presented III order to necessitate an examination or inquiry into her fitness to make her d I ence or indeed capacity to make a defence. As we see it, the recor clearly speaks for itself. The appellant pleaded not guilty and she made her defence. We als note from the record that in addition to her formal defence, soo after cross-examining the victim, the appellant made an unsolicitld statement to the trial Court saying: "the boy came to my bed Jnd we did it. He forced me to do it". HI • I The foregoing unsolicited statement is consistent with her defence which she opted to give when called upon to defend herself. We have not seen any misdirection on the part of the trial Court in the manner he appellant was tried and treated at every stage of the trial processl. We have also not seen any tenets of unfair trial in I he fact that PW2, the victim's mother, made remarks this case. which doubted the mental soundness of the appellant, who she had herself empl yed as a housemaid, was not good ground upon which the trial ourt could order a mental examination III the circumstances of this case. We have also not seen any basis for the order made ly the learned trial Magistrate, for the appellant to be medically eJamined soon after she gave her defence. Likewise, we find no mistrection when the learned trial Magistrate abandoned his order foJ a medical report to be produced before delivering his Judgment. In his ritten heads or argument, the learned Director referred us to the ifficulties he experienced when attempting to obtain instructions from the appellant in order to prosecute this appeal. Those diffic lties, it is said, were experienced at the Prison. We • • have no cause to consider those alleged difficulties which are clearly not part 0), the record of appeal and we refuse to join the speculation. Our considered view is that this appeal completely lacks merit and we dismiss the ground of appeal. Before we end, we notice that the charge that was preferred against the [ppellant was Indecent Assault when all the evidence, including thl medical evidence and the appellant's evidence prove defilement 0 a boy-child. We have failed to understand the reason why the c arge of indecent assault was preferred III the circumstances of this case; particularly that the particulars of offence stat d that carnal knowledge had taken place between the appellant a d the boy. The charge was misplaced and we feel duty bound to qUlSh it and replace it with the charge of Defilement oJ a Child contJary to Section 138(1) oJ the Penal Code Chapter 87 oJ the Law1 oJ Zambia as read with the Amendment Act No. 15 oJ 2005. Having said so, we note that I the appellant was in an extreme poLtion of trust which she clearly breached, abused and violated. She was entrusted to ensure the safety of the boy-child I J13 • • and the safety of her employer's property; but she chose to sexually I . abuse the boy. . We need not mention tha,t working women cannot afford to do " without holsemaids. Abusi~e maids induce a terrifying sense Of' shock in thl minds of all working women. In our considered view, such abusiJe maids deserve stiffer punishment. It is in this vein that we conbider the sentence of 17 years as coming to us with a sense of shlck as to its inadequacy in the circumstances of this case. The appellant not only violated the boy's undeveloped reproductiv organs, but also infected him with a combination of gonorrhea d syphilis. We have therefore decided to increase the sentence fr m 17 years to 25 years simple imprisonment. This sentence is 0 be served with effect from the date the appellant was arrested. .7/~.,. ,4.. G. S,Ph~ SUPREME COURT JUDGE ______ "-c.:...- E. C. Muyovwe SUPREME COURT JUDGE (Retired) M. Lisimba AGjSUPREME COURT JUDGE J14 • • and the safety of her employer's property; but she chose to sexually . I. abuse the boy, ' •. We neld not mention that working wI)men cannot afford to do h I '"h WIt out ousemal s, 'd Ab' uSlve mal s m uce a tern ymg sense 0 'd' "d 'f ' f shock in thl minds of all working women, In our considered view, such abusi1e maids deserve stiffer punishment, It is in this vein that we consider the sentence of 17 years as coming to us with a sense of shick as to its inadequacy in the circumstances of this case. The appellant not only violated the boy's undeveloped reproductiv organs, but also infected him with a combination of gonorrhea and syphilis, We have therefore decided to increase the sentence fr m 17 years to 25 years simple imprisonment. This sentence is 0 be served with effect from the date the appellant was arrested, . ~&'l,. G. S p~li' SUPREME COURT JUDGE E. C. Muyovwe SUPREME COURT JUDGE (Retired) M. Lisimba AGjSUPREME COURT JUDGE J14