Phiri v People (Appeal 99 of 1986) [1987] ZMSC 76 (19 November 1987)

IN THE SUPREPE COURT OF ZWBIA APPEAL NO. 99 of 1986 HOLDEN AT LUSAKA (Criminal Jurisdiction) ISAAC SANDIFORD PHIRI Appellant - v - THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner and Sakala, JJ. S. 7th October and 19th November, 1987 MRS E. N. C. Muyovwe, Assistant Senior Legal Aid Counsel, for the appellant K. C. Chanda, Senior State Advocate, for the respondent JUDGMENT Ngulube, D. C. J. delivered the judgment of the court The appellant was sentenced to suffer the extreme penalty following upon his conviction on a charge of murder. The particulars alleged that on 11th January, 1986, at Petauke, he murdered Lasiwe Banda. The deceased was aged six years old and she died from head injuries received when, as a result of being struck on the head, she suffered multiple fractures of the skull. The prosecution case was that on the day in question, the deceased was at the gardens in company of one male relation and some women who included PWs 1, 2 and 3. PW.1 was the appellant's former wife and the two had recently divorced. When the women were returning to the village, PW.1 and the deceased remained at a stream to do some laundry. All of a sudden, PW.1 was blindfolded with a cloth by someone who stole up to her from the rear; she asked the deceased who it was and was informed it was the appellant; immediately thereafter, PW.1 was axed twice on the head and fell down unconscious. When she came to, the deceased was lying beside her. She had an injury on the head. PW.1 carried the dying child to the village and her arrival was seen by the witnesses who included PW.4 - the appellant's brother - who rushed to her assistance. 2/.................. . The J2 The appellant's case was that, he was having a bath at the stream when the party coming from the fields found him and the women started to beat him up. In order to defend himself, he picked up a stick and struck out blindly at the women and must have accidentaly hit the deceased child who was with them. From the evidence before him the learned trial judge found that the appellant's marriage to PW.1 had been an unhappy one; that since the divorce, the appellant had been threatening to kill the child of the marriage (not being the deceased child) and that on the day in question, the appellant had brutaly attacked PW.1 and later the deceased child probably to conceal his identity as the assailant. He dismissed the appellant's claim that he had acted in self-defence when he was attacked by the women and accidentaly struck the child as well. On behalf of the appellant, Mrs Muyovwe submitted that the learned trial judge had erred in rejecting the appellants defence of self-defence. She argued that the evidence was that the appellant had threatened to kill only his own child and not the deceased child and that since PWs 1, 2 and 3 were relatives of the deceased and of each other their evidence concerning this incident needed to be treated with caution so that the appellant's story that the women had attacked him should not have been disbelieved. In rejecting the appellant's story, the learned trial judge had relied to a considerable extent on the corroboration afforded to the women's evidence by the testimony of PW.4, the appellant's brother. PW.4 testified that the appellant had, during the previous night, grumbled while talking to himself about the divorce granted to PW.1 in his absence and had muttered a threat to cause a tragedy. PW.4 had also said that he saw PW.1 arrive in the village, alone, while carrying the injured child and he was among those who had rushed to her assistance. The learned trial judge found from such evidence- which corroborated other evidence to the same effect- that the other women must have left PW.1 and the child at the stream since, otherwise, had they remained with them and had they attacked the appellant together and witnessed the injuries inflicted by the appellant, they could not conceivably have left the injured persons at the stream in order for them to make their own separate way to the village afterwards. 3/...................... Mrs Mu^vwe J3 Mrs Muyovwe argued that PW.4's evidence should not have been believed since he had only overhead the appellant's mumbled complaints and the threat to cause a tragedy. On behalf of the State, Mr Chanda submitted that, in relation to the important fact that the other women were already at the village when the appellant attacked PW.1 and the child, PW.4 was in fact an independent witness who was a relative of the appellant. We have no doubt that the learned counsel for the appellant has certainly done her best in an otherwise unarguable case. We agree entirely with the learned Senior State Advocate that, on the evidence, the findings by the learned trial judge in this case cannot possibly be faulted. The evidence was overwhelming that the appellant was not attacked by the women at the stream and that only PW.1 and the child had remained behind. He attacked them viciously and in the process killed the innocent child. It seems to us that the learned trial judge was not wrong when he offered the opinion that, having attacked his former wife so viciously, he turned on the child and killed her in order to avoid detection for what he thought he had done to his former wife who fortunately did not die. The learned trial judge did not misdirect himself in any way and we dismiss the appeal against conviction. There can be no appeal against the mandatory capital sentence. M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE