Inambao v People [1969] ZMCA 2 (13 May 1969)

INAMBAO v THE PEOPLE (1969) ZR 84 (CA) COURT OF APPEAL 45 SKINNER CJ; DOYLE JA; HUGHES AgJ 13th MAY 1969 Flynote and Headnote [1] Criminal law - Principal offenders - "Common intent" - Section 21 (a) of Penal Code construed. 1969 ZR p85 DOYLE JA Where a common intent is necessary for a crime, that intent must be present; a common intent to commit another crime does not suffice. [2] Criminal law - Principal offenders - "Common intent" - Section 21 (a) of Penal Code construed. Section 5 21 (a) of the Penal Code applies to cases where an unlawful intent is necessary but the actual offence committed is constituted by a further completely fortuitous circumstance for which no further intent (other than the initial "unlawful intent") is necessary. 10 [3] Criminal law - Principal offenders - Section 21 (c) of Penal Code construed. Section 21 (c) of the Penal Code includes an offence in which all the acts and intents of the principal are agreed to by the abettors but the crime is constituted by an additional circumstance equally outside 15 the contemplation of both principal and abettors. Cases cited: (1) Chisulo v R 1961 R & N.116. (2) R v Short (1932) 23 Cr. App. R 170. (3) R v Lomas (1913) 9 Cr. App. R 220. 20 (4) R v Bullock (1954) 38 Cr. App. R 151. Statute construed: (1) Penal Code (1965 Cap.6), ss.21 (a), 21 (c). Judgment Doyle JA: delivered the judgment of the court. This is an appeal against a conviction for manslaughter in the High 25 Court at Lusaka. On April 15, 1969, we heard the appeal and dismissed it for reasons which we now give. The facts are that on 8th August, 1968, the appellant together with a man named Chikoti jointly attacked the deceased for some reason not known. Chikoti punched deceased on the head and knocked him down. 30 Appellant who was wearing boots then kicked deceased three times on the back of the head. Deceased died shortly afterwards and the postmortem showed that death was due to dislocation of a cervical vertibrae. The doctor, who was not called at the trial, stated that the cause of the injury could be a hit on the neck or twisting of the neck under pressure. 35 He was not cross - examined at the preliminary inquiry. The learned trial judge held that appellant unlawfully killed deceased by kicking him and found him guilty of manslaughter. He held that section 21 (c) of the Penal Code did not apply as it referred to an offence in contemplation and not to an offence supervening ex improviso. Accordingly, 40 he acquitted Chikoti of manslaughter but found him guilty of common assault. It was in our view unfortunate in the circumstances of this case that the doctor was not called at the trial. The judge decided that, as between 1969 ZR p86 DOYLE JA the acts of each defendant, those of the appellant caused the death. No doubt it was more probable that the kicks delivered by appellant, rather than Chikoti's blow with its consequent fall, caused the death. It is not, however, in our view beyond all reasonable doubt that the injury could 5 not have been caused by Chikoti's blow or the consequent fall. It may be that if the doctor had been examined or cross - examined on this point, he could have given an opinion upon which the court could have acted; but this point was not cleared up. It was for the prosecution to make the matter clear beyond reasonable doubt. They did not do so, and on the 10 view of the law taken by the learned trial judge the appellant would also have been entitled to an acquittal on the charge of manslaughter. The learned judge's view was based on and followed Chisulo v R [1], a decision of the Federal Supreme Court. Though that decision was perhaps not strictly binding on the learned judge, it was a decision of 15 strong persuasive authority and one from which any judge of first instance would hesitate to differ, particularly bearing in mind that the Federal Supreme Court was once the court of appeal from this territory. It is for consideration whether Chisulo's [1] case was correctly decided or perhaps more accurately whether all the reasoning therein 20 was valid. Upon its facts it clearly was a correct result. In that case three district messengers jointly assaulted the deceased. The first defendant struck deceased twice with great force on the head with a hockey stick. The other two accused were at the time beating deceased with their fists. Deceased fell down, and the third defendant then set upon him and 25 continued to beat him with his fists. The third defendant then got up and kicked deceased on the head. In consequence of the injuries received death ensued. The Federal Supreme Court held that all three were guilty of manslaughter. In so doing they considered the meaning of sections 21 and 30 22 of the Penal Code in the following passages (at 118 - 120): "In Northern Rhodesia, the criminal responsibility of different parties to an offence is governed by sections 21, 22 and 23 of the Penal Code. It is widely thought that these sections are an accurate codification of the English common law on the same subject, but 35 it is unnecessary to consider whether this is so. Their terms will still govern the matter, even if in a few cases they may produce unexpected results. In the context of this case, and considering first section 21, an offence has been committed, namely manslaughter, by one of the Appellants, though it is not certain which 40 Paragraph (a) cannot be applied since it is not clear who personally caused the death. Paragraph (b), (c) or (d) might be applicable to all three Appellants, but there is a serious obstacle. In the offence of manslaughter, "causing" the death is an essential element. Penal Code, section 176. In this case, none of the Appellants had 45 the purpose of enabling or aiding anyone to cause death, or aided or abetted anyone in causing death, or counselled or procured the causing of death. The words "the offence" must in reference to paragraphs (b), (c) and (d) refer to an offence in contemplation 1969 ZR p87 DOYLE JA not to an offence supervening ex improviso. R v Short, [2]. Each of the three paragraphs envisages a conscious project, not an unforeseen and perhaps unforeseeable consequence of that project. See Lomas, 9 Cr. App. R 220, as explained in Bullock, 38 Cr. App. Lomas, 9 Cr. App. R 220, as explained in Bullock, 38 Cr. App. R 151. 5Section 21 can not apply. Section 22 deals with a different problem. Where a criminal project exists, the parties to that project should in justice be held responsible not only for its desired results, but for other results not desired, but in the circumstances probable. And this is the 10 principle which governs this case. Section 23 is merely a development of the same principle in reference to counselling or procuring as opposed to actual participation, and need not be considered in the present context. In this case, or in any case of manslaughter through a combined 15 assault, since there is no project to cause death, the essential question is whether the assault as planned, the common purpose established in accordance with the project in the minds of the parties, was such that death would be a probable consequence of the prosecution of that purpose. If three persons plan together a 20 minor assault and each strikes a blow amounting to little more than an insult, one of the blows may cause death through an unknown physical defect of the victim. The one who struck that blow has "caused" the death and so is guilty of manslaughter, but the other two are not, for the result of their project was something 25 inherently improbable. If the death results from the combined effect of several acts of all the attackers each has "caused" the death and is guilty of manslaughter. If, however, the assault jointly projected is of so serious a nature that death is a probable consequence, though neither desired nor intended, all the parties 30 to the assault are, under section 22, guilty of manslaughter, though only one blow was struck and that alone "caused" the death. That is the case. The disparity of numbers, the duration of that attack, the weapons used, the force employed, the relative helplessness of the deceased, the final heavy kick on the head, all 35 point to the same conclusion that, speaking objectively and without reference to the Appellants' actual intentions, death was likely to result from the project." If this reasoning is correct some very strange results follow. For example A hires two bravos to administer a mild beating to a third 40 party. A is present at the beating and the victim is held by one assailant while the other delivers blows with his fist of a severity and direction ordered by A. The blows though mild cause death through an unknown and unknowable physical defect of the victim. On the reasoning of the Federal Supreme Court A and one assailant are not guilty of manslaughter 45 while the other assailant is. If this is so, it affords considerable support for Mr Bumble's famous dictum. In our view however some at least of the Federal Supreme Court's reasoning is fallacious. The Court excluded section 21 of the Penal Code 1969 ZR p88 DOYLE JA on the ground that the offence referred to in paragraphs (b), (c) and (d) of section 21 of the Penal Code refer to an offence in contemplation and not to an offence supervening ex improviso. As an authority for this proposition the Court relied on R v Short [2], R v Lomas[3], and R v 5 Bullock [4]. [I] The gist of these cases in this writer's opinion is that where a common intent is necessary for a crime that intent must be present and that a common intent to commit another crime is not sufficient. [2] There is nothing exceptionable in this statement of the case, but it does not in our view decide that section 21 of the Penal Code does not apply where an 10 unlawful intent is necessary but the actual offence committed is constituted by a further completely fortuitous circumstance for which no further intent is necessary. The relevant parts of section 21 of the Penal Code read as follows: "21. When an offence is committed, each of the following persons 15 is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say - (a) every person who actually does the act or makes the omission which constitutes the offence; 20 (c) every person who aids or abets another person in committing the offence;" In a case such as the present the act which constituted the offence 25 was the assault. No further intent was required to constitute the crime of manslaughter when death occurred. The death was as fortuitous to the actual deliverer of the blow as it was to the other assailants. The blows delivered by several assailants acting in concert are the blows of each and every one of them and in our view each such assailant 30 can properly be said to be a principal and to have actually done the act within the meaning of paragraph (a) of section 21. They can hardly be described as mere aiders or abetters. [3] However, even assuming that paragraph (a) did not apply and that the assailants must be treated as merely aiding and abetting each other in their separate blows, we consider 35 that the offence referred to in paragraph (c) of section 21 includes an offence in which all the acts and intents of the principal are agreed to by the abettors but the crime is constituted by an additional circumstance equally outside the contemplation of both principal and abettors. This is not a case where something completely outside the contemplation 40 of the parties was done by one of the assailants, for example, in the illustration already given if one of the bravos had suddenly pulled out a knife and stabbed the victim. In our view both the appellant and the other defendant in this case were guilty of manslaughter. It is fortunate for the other defendant that 45 he was merely convicted of assault. It is not necessary for the court to consider the reasoning of the 1969 ZR p89 DOYLE JA Federal Supreme Court in relation to section 22 of the Penal Code, but we would observe that the circumstances postulated as constituting manslaughter would in most cases be murder. It would be a rare case where, the assault jointly projected being of so serious a nature that death was a probable consequence, the knowledge required by paragraph 5 (b) of section 180 of the Penal Code would not also be present. Appeal dismissed 1969 ZR p89