Jackson Phiri and Anor v The People (APPEAL NO:39/2023; APPEAL NO:40/2023) [2025] ZMCA 28 (26 February 2025)

I N THE COURT OF APPEAL OF ZAMBIA APPEAL NO:39,40/2023 HOLDEN AT NDOLA (CRIMINAL JURISDICTION) BETWEEN: J ACKSON PHIRI FELESIYA TEMBO AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT Coram : Mchenga, DJP , Ngulube and Chembe , JJA On 18 th February 2025 and 26 th February 2025 For The Appellant: C . Banda-Kainga , Legal Aid Counsel, Legal Aid Board For The Respondent : S. Siafwa, State Advocate, National Prosecution Authority J U D G M E N T Mchenga DJP, delivered the judgment of the court Cases referred to : 1. Mbomena v. The People (1967] Z . R . 89 2. R . V. Byrne 44 Cr . App . R . 246 3. R. V . Seers (1 984] 79 Cr . App. R . 261 4 . Th e People V. Mwaba [1973] Z . R. 271 5. Khupe Kafunda V . The People [2005 ] Z. R . 3 1 Legislation Referred to: 1. The Penal Code, Ch apter 87 of the Laws of Zambia 2. The Criminal Procedure Code , Chapter 88 of the Laws of Zambia J2 1. 0 INTRODUCTION 1 .1 The appe llants appeared before the High Court (Mweemba , J.), jointly charged wi th the offence of murder con trary t o Section 200 Of the Penal Code. 1 .2 Th ey denied the c h arge and the matter proceeded to trial . At the end of t h e trial, t h ey were found g u ilty of committin g t h e offence and both senten ced to l ife impri s onment . 1 . 3 Th e have appealed again st t h eir convi ction s. 2 .0 CASE BEFORE THE HIGH COURT 2 .1 Before the commencemen t of t h e trial, in line with Section 16 0 of the Criminal Procedure Code, the appellan ts were subjected to medical examination to determine wheth er t h ey cou ld d efend themselves . 2 . 2 The psychiatrist who examined t h em found that they both s u ffered from epilepsy , a neurological condition. Since epilepsy was not a mental illness , he conclu ded they could s t and trial as they were able to defend themse l ves. 2 . 3 On 28 t h March 2022, around 12 : 00 hou rs, Lackson Phi ri , J3 of Nkundye Village in the Kalindawalo Chiefdom, of Petauke, was visited by the appellants who are his grandchildren. 2 . 4 The 1 st appellant was armed with an axe, while the 2 nd appellant was armed with a hoe. The 1st appellant broke the door to their grandfather's house, and the two appellants got into his house and hacked him with the implements they were carrying. 2 . 5 When he was dead, the 1 st appellant pulled his body out of the house, and declared that he had killed a wizard. It is common cause that the appellants had previously accused t heir grandfather of bewitching them. 2 . 6 In his defence, the 1 st appellant told the trial Judge that in the year 2021, he was diagnosed with a medical condition which resulted in him experiencing blackouts. With the blackouts, he would become violent and lose conscious ness. 2.7 After regaining his consciousness, he would find himself tie d up and he would not recall what had happened. J4 2 . 8 He recalled that on 28 th March 2022, he headed towards his grandfather's house in the company of the 2 nd appellant. He had no recollection of what happened thereafter. He denied having ever accused his grandfather of having bewitched him. 2. 9 The 2~ appellant's evidence was that on 27~ March 2022, she went to church. Later that afternoon, she started feeling weak and she decided to sleep. When she woke up, it was the following day, and she found herself at Petauke Police Station. 2. lOShe denied killing her grandfather and said she had no recollection of what happened. 2 .llThe trial Judge accepted the psychiatrist's opinion that the appellants suffered from epilepsy, a neurological condition. He concluded that the defence of insanity was not available to them because they did not suffer from a mental illness. 3.0 GROUND OF APPEAL AND ARGUMENTS BY COUNSEL 3.1 The sole ground of appeal is that a proper assessment of the evidence before him, would have led the trial Judge to find that the defence of diminished responsibility, was available to the appellants. JS 3 .2 Mrs. Banda-Kainga referred to the case of Mbomena v. The People 1 , and submitted that although the appellants did not raise the defence of diminished responsibility, the trial J u dge was obliged to consider its availability because of the evidence that was before him. 3 .3 She submitted that in the face of the psychiatrist's evidence that the appellants s u ffered from epilepsy, which may have been responsible for their aggressive behaviour, the trial Judge should have invoked Section 12A of the Penal Code, and found them gui l ty of the offence of manslaughter on the basis of diminished responsibility . 3 .4 Opposing the appeal, Mr. Siafwa referred to the cases of R. v. Byrne 2 and R. v. Seers 3 and submitted that epilepsy was not a disease of the mind and as a such, the defence of diminished responsibility as set out in Section 12A of the Penal Code, is not available to the appellants. 4 .0 CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT 4 .1 The defence of diminished responsibility is set o ut in Section 12A (1) of the Penal Code. It reads as follows: J6 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 such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or is i nduced by disease or injury) which has substantially impaired his mental responsibility for his acts or omissions in doing or being party to the killing. 4 .2 To successfully rai se this defence , evidence mus t be placed bef ore t h e trial court , proving that the accu sed person suffers from an a b normal ity o f t h e mind wh ich impai r s hi s ment al abi lities . 4 .3 In t h e case of The People v. Mwaba 4 , Scott , J. , dealing wi th a case where the defen ce of insani t y was being canvased , exp re sse d the v i ew t hat wh ere t h e state of t h e mind of an a c cused person i s in i ssue , i t is d esirable t h at t he pers ons who t estify in the a c cused person ' s f avou r , includ e a qu a l ified medical practitioner who examined him. 4 .4 Since dimi nis h e d r esponsibil ity is concern ed with t h e sta te o f t h e mi nd o f a n accu sed per son , i t i s our v i ew t hat when ever it comes up for consideration , there mus t b e medical ev idence to s u pport it. A cour t cannot wholly rely on evidence from laymen , as Mrs. Banda-Kain ga seems to suggest , when she s ubmitted J7 that the appellants gave evidence that the epilepsy they were suffering from, triggered their violent conduct and that they had no control of it . • 5 In this case, the psychiatrist who examined the appellants did not indicate that their violent conduct could have been triggered by the epilepsy that they suffered from. 4 .6 In the case of Khupe Kafunda v. The People 5 , the Supreme Court held that the onus of establishing unsoundness of mind at the time of the commission of an offence, is on the accused person. It follows, that an accused person who is canvasing the defence of diminished responsibility, has the onus of placing before the court, evidence that supports the defence. 4 .7 In this case, no such evidence was placed before the trial J udge. The consultant psychiatrist , through a report tendered into evidence at the commencement of the trial, found that the epilepsy the appellants suffered from was a neurological condition that was not associated with any mental condition. J8 4 .8 He went on to say that the most probable cause of the appellants attacking their grandfather, was their belief that he was responsible for their condition through witchcraft . . 0 VERDICT .1 We find no merit in the appeal as there was no evidence before t he trial Judge, that warranted his considering the availability o f the defence of diminished respons i bility. 5 .2 We dismiss the appeal and uphold the decision of the High Court. DEPUTY JUDGE NT P. C. M. Ngulube COURT OF APPEAL JUDGE ..................... ~mk ............... . Y. Chembe COURT OF APPEAL JUDGE