Musole v People (Appeal 75 of 2015) [2015] ZMSC 71 (3 November 2015)

IN THE SUPREME COURT OF ZAMBIA , HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No. 75/2015 BETWEEN'I JOHN KAMBILIMBILI AND ,~ i l j - ) ;' APPELLANT .;;,,,/r THE PEOPLE RESPONDENT Coram: Phiri, Muyovwe, JJS and Lisimba, Ag. JS, oJ the 2nd February, 2015 and 3rd November, 2015 For the AP~ellant: Mr. A. Ngulube, Director Legal Aid For the Respondent: Ms. F. Nyirenda, Acting Senior State Advocate JUDGMENT Muyovwe,IJS, delivered the Judgment of the Court. I Cases referred to: 1. Suluwema vs. The People (1965) Z. R. 4 2. Dorothy Muta1e and Richard Phiri vs. The People (1995-1997) Z. R. 3. Mwewa Murano vs. The People (2004) Z. R. 207 whel we heard this appeal, Hon. Justice Lisimba sat with us. He has since retired and, therefore, this Judgment is by the majority. J1 I I I I I I The appellant was convicted by the Solwezi High Court of the offence of murder contrary to Section 200 of the Penal Code. He was sentenced to the mandatory death sentence. The Jarticulars of the offence alleged that on 28th March, 2012 at sllwezi he murdered Robby Mwewa a 5 year old boy. The facts were that on the 28th March, 2012 around 21:00 hours, PW1 (DiaJond Milambo) was cycling home with the aid of light from his hlad torch when he found a bicycle lying by the road side and gtass around it looked trampled on. When he moved for about 350 metres, he saw the appellant moving in a zigzag style acroJs the road while holding something in his armpit. Then the abpellant threw it to the ground and PW1 observed that it was a ctld who had blood oozing from his nose and mouth. According ~o PW1, the child appeared dead and the appellant looked confused and claimed that what he threw to the ground was a chLm which he had fought with. He then left and informed he appellant's relatives and alerted the crime prevention officers who apprehended the appellant. The investigati ns officer visited the scene of crime the following day, and he found the body of the deceased lying along the road and he observ Id that the grass was trampled on which led him to J2 conclude that there was a struggle. He later charged the appellant with the subject offence. I In hil defence, the appellant denied the allegations in totality. Aclording to the appellant, on the material day between 18:00 hOU~Sand 19:00 hours he was cycling back home with the deceased child when the hand bar of the bicycle got unscrewed and they blth fell to the ground. He said after the fall, he noticed I the deceased appeared to have collapsed so he left the that I bicycle and decided to carry him home. On his way home, he met PWl. The appellant's mother (DW2)confirmed that he took the deceasrd child to her and she observed no visible injuries on the child brt that he experienced excruciating pain whenever his neck was moved. The child died on the way to the hospital. In hJ judgment, the learned trial Judge found that the appellant f~ll down with the child. However, she accepted PW1's evidence tJat the appellant threw the child to the ground thereby causing faJal injuries. She rejected the appellant's evidence in total. She found the appellant guilty as charged and sentenced him to the mandatory death sentence. " I , I On behalf of the appellant Mr. Ngulube, the learned Director of Legal Aid advanced three grounds of appeal couched in the following ttms: I 1. The trial court erred in fact and in law by convicting the appellant of murder when, among the accepted facts, fell the court accepted and found that from I the bicycle. The court the appellant's case was reasonably possible and that a reasonable doubt existed. the appellant failed to find that 2. The Jial court erred in fact and in law by convicting the appellant of murder as the prosecution had failed to establish malice aforethought beyond reasonable doubt. 3. The trial court erred in law by imposing the death penalty on the appellant as death by strangulation in the ~urrent dispensation is against both international law ahd domestic law. The larned Director of Legal Aid relied on the appellant's heads of arrments and argued grounds one and two together. Counsel reviewed the details of PW1's evidence and pointed out that in sum his evidence was to the effect that the appellant told him that he had fallen on the bicycle with the child and he I looked confused when he met him. The thrust of the learned Director's Lgument was to the effect that the appellant gave a consistent incident. ltory to all the witnesses who questioned him over the I he learned Director particularly emphasised that the appellant's story could reasonably be true especially having regard to the fact that the bicycle had a deformed bar which confirmed the appellant's story that he had fallen to the ground with the child. Further, that the investigations officer confirmed that he w~s informed that the appellant had an accident. couJsel I . accepted PWl's testImony. strongly submitted that the court should not have The learned Director submitted that the probable occurrenc was that the appellant dropped the child where he was stan ing and that the trial court understood PW1's statement to mean that the appellant threw the child on the ground as if he applied force to smash the child on the ground. And with that understanding the court found that the appellant I intentionally or voluntarily caused the death of the child. The learned Dlrector vehemently argued that the court failed to seriously cbnsider the accepted fact that the appellant fell off the bicycle wit the deceased child and the possibility that the child could hav in fact sustained the fatal injuries as a result of the fall and no as a result of being dropped to the ground. Counsel argued thal it cannot be said that the child did not sustain any InJunes as a result of the fall from the bicycle. He submitted that the m re probable and plausible position to take is that the IS child sustained the injuries from the bicycle fall as the appellant noticed thlt the child was in pain and had to abandon the bicycle in confusidn and start off home on foot while carrying the child. counLI also referred us to the paragraph in the judgment I at pages 49 of the record where the learned judge said: "I aJ of the view that falling off a bicycle only once could! not have possibly caused such grievous injuries and that the accused most likely did more than just thro~ the deceased to the ground once in order to harm him." The learned Director contended that the view taken by the court was inot supported by any evidence and that from the evidence, it was difficult to glean what possible motivation the appellant dOUld have had to harm the deceased child. Mr. Ngulube's JOSition was that there was no such motive; and that the death Jf the child was unintended as the child died as a result of J accidental falloff the bicycle. He argued that the issue of fal ing off the bicycle was not an afterthought as the appellant mentioned this to PW1, investigations officer, and DW2 soon after Jhe fall and in the course of the investigation. The learned Dir~ctor argued that the accident cannot at law lead to a conviction £ r murder or at the very least manslaughter. The J6 I I I I I learned Director contended that malice aforethought was not established and as a result, the prosecution failed to prove an essential element of the crime of murder. Counsel relied on the case of Suluwema vs. The People' where we held: "To Jtablish malice aforethought the prosecution must proveleither that the accused had an actual intention to kill or to cause grievous harm to the deceased or that the abcused knew that his actions would be likely to cause ideath or grievous harm to someone." He submitted that the version of the appellant was reasonably ~ossible and that the prosecution failed to discharge its burden of proof and that, therefore, ground one and two should be allowed. I In respect of ground three, Counsel challenged the death penalty whibh according to him is unconstitutional and against international law. Counsel for the State strongly disagreed with her learned friend. For reasons that will become apparent in this judgment Je will not recapitulate the submissions by learned Counsel for he parties on this ground. In r sponse to grounds one and two, Ms. Nyirenda the learned Acting Senior State Advocate submitted, inter alia, that it was evident that the trial judge accepted that the appellant fell J7 from the bicycle with the child. She also referred us to the same paragraph In the judgment that Mr. Ngulube referred us to in his arguments.1 Counsel argued that the trial court reached the conclusion that the ap~ellant most likely did more harm than just throw the deceased tJ the ground after considering the postmortem report the gravity of the injuries. That the gravity of the which shols I I injuries suffered by the deceased showed that the story of the appellant could not be supported. She submitted that the appellant idsisted that what he had was not a child but a charm I and the fac that he said he fought with it was supportive of the findings ofl the judge. She submitted that looking at the circumstantial evidence the only reasonable conclusion would be that the apbellant caused grievous harm to the child whom he I referred to rs a charm. She argued that, there is evidence to exclude thi conclusion that the child sustained injuries as a result of thr fall as stated in the lower court's judgment. She relied on th case of Dorothy Mutale and Richard Phiri vs. The People2 • Ms. Njfirenda submitted that following the holding in the Dorothy MLtale2 case. the trial court found good reason to J8 decide that I the injuries sustained were as a result of the appellant fighting with the child whom he thought was a charm. That the Jidence also shows that from the confession made to PW1, the ~ppellant stated that he fought with the child and in fact PWl ltnessed the appellant throwing the said child to the ground. I 18he submitted that this evidence proved malice aforethought as any reasonable prudent person ought to know that fightin~ with a five year old child and throwing the same to the ground Imay cause death or grievous harm to the child. We hive considered the evidence and the arguments by learned coJnsel for the parties. I We will deal with ground one and two together as they were argued. FJst of all, we agree with both learned Counsel that going by th~ evidence before the learned trial Judge she rightly made a finding that the appellant was riding the bicycle with the child when both fell down. It is abundantly clear that PW1 encountered the appellant after he fell from the bicycle. PW1 first saw the bic~cle and then 350 metres later, he came across the appellant wIth the child in his armpit. PWl said the appellant was moving lin a zigzag fashion across the road. He observed that the appellJt looked confused and he claimed that he had been J9 fighting with a charm which he held in his armpit but PWI saw it was a child. This is what the learned judge had to say at Page I I J 12 (page 49 of the record of appeal): , "The lritical issue to be determined is; did the accused murd~r the deceased or involuntarily cause his death? My a'!'swerto this question is that; having considered the oral evidence of PWI and the accused and having considered the report on postmortem examination, I am the accused being of sound mind, of the view that voluntarily caused the death of the deceased by hitting him on hard ground after the fall as a result of which the child suffered brain haemorrhage, due to multiple fractrire of the skull due to traumatic head injury and chest Iinjury. I am of the view that falling off a bicycle only once could not have possibly caused such grievous injuri~s and that the accused most likely did more than , just throw the deceased to the ground once in order to , harm him." The lelrned judge should have been open to the facts before her and sJoUld have considered the evidence holistically. It is clear that lhe concentrated mainly on the evidence of PWI in arnvmg at her decision and failed to consider the evidence of other prosecution witnesses and that of the appellant. A closer perusal of the evidence reveals that the appellant gave a consistent story that he fell off the bicycle with the child on his return fro1 picking the child: he told the same story to PWI; to other peOPlj in the presence of PWl; his mother (DW2)and even to the police. A critical examination of PWl's evidence reveals J10 some discrepancies: he said he found a bicycle on the road where the grass lwas trampled on; the bicycle had no damage and appeared new; he saw the appellant who kept moving in a zigzag fashion; hJ saw the appellant 'throwing' something on the road and it turJed out to be a child; the child was dead; he admitted that the ~ppellant told him that he fell down twice from the bicycle; he said he saw the bicycle the next day with a hand bar partially dlformed and lastly he conceded that after hearing from the appel ant he concluded together with others that the appellant had indeed fallen from the bicycle with the child. In our view, the learned Judge should not have relied heavily on the evidence of PWI alone in light of the whole evidence before her. TheJ was also the evidence of the investigations officer who stated thai he was informed that the appellant was involved in an accIdent. At the scene, he found the body of the deceased by the . roadside. He did not see the bicycle although he was informed the appellant had one. In fact the investigations officer said he was told br PW1 that the appellant had beaten the deceased. In contrast, the appellant's mother said the child was brought to her and died on the way to the hospital. Her evidence was uncontrov rted. This sharp contradiction was not resolved by the J1l I I I I I I I trial court: the child died at the back of the appellant's mother on the way to the hospital yet the investigations officer stated that he found the body of the child by the road side and that it was in that condition from the day before. The investigations officer did not know rhether the body had been removed from the scene prior to his visit. We take the view that even the investigations in this case Jft much to be desired. The appellant was arrested and charged Jased on the evidence of PW1 and this is far from . f satIs actor' I The cause of death was brain hemorrhage due to multiple fracture 0 the skull due to traumatic head injury. In this case, the docto I who conducted the postmortem examination should have been called and he/she could have explained whether the injuries ~ere consistent with the story that the appellant had thrown th child on the ground. Our consideration of the facts of this case does not reveal any plausible reason as to why the appellant fhOUld harm the child. Looking at the circumstances of this case, his story could be reasonably true. The finding by the learned judge that falling off the bicycle once could not cause grievous ihjurieS is without evidential basis. We agree with the Jl2 learned Director that the deceased could not have escaped unhurt I from the fall. We nLe that the appellant was examined by a psychologist at Chainla Hills Hospital and he was found to be fit to plead and that Je was not suffering from any mental illness. We are mindful 0 the fact that the appellant did not raise the issue of his mental condition at the time of commission of offence. While the eVidenbe of PWI that the appellant claimed he had a charm under his armpit raises some unanswered questions, it is clear that the appellant made no attempt to conceal the child as PWI approache~ him. We take the view that this was not the behaviour of a person who voluntarily caused the death of the deceased. While we accept that the appellant did exhibit some strange b haviour at the time PW1 found him, we are not satisfied lhat malice aforethought which is an essential ingredient to a charge of murder was established in this case. From the facts of this case, it cannot be ruled out that the child got reriOUS1Yinjured after the fall from the bicycle. The appellant's explanation was that after they fell from the bicycle, he decide1 to carry the child since he was injured. We are unable to bonclude that the child died as a result of the injuries "3 sustained from being thrown or dropped on the ground by the appellant JOing by the evidence of PWl. We are of the considered view, havidg regard to the facts, that there existed a doubt in this case as to :whether the child died as a result of injuries allegedly inflicted on him by the appellant or as a result of the fall from the bicycle. I is trite that the prosecution must prove their case beyond al reasonable doubt and in the case in casu the state failed to discharge this burden. We said in the case of Mwewa I Murono vs. The People3 at page 210 that: cases the rule is that "In Liminal , proving every element cons~quently beghining to end, on the prosecution. proof is high. reasonable doubt." the legal burden of and charged, from lies The standard of The case must be proved beyond all the offence accused, guilt the the of of I , As wl said earlier in this judgment, the appellant's story might realonablY be true and he must, therefore, be given the benefit Of!doubt. In the case of Mutale and Phiri vs. The People' ci ed by both learned Counsel we held that: ,adopt wheL two or more inferences are possible it has always the court beenl a cardinal principle of criminal will less is more the one that favourable to an accused if there is nothing to exclude the linference. Where there are lingering doubts that , court is required to resolve such doubts in favour of the accused. law that favourable or J14 Having found that the State failed to prove their case to the required stbdard, we find that the learned judge erred when she I convicted the appellant as charged. We find merit in grounds one and two. Sinc we have found merit in grounds one and two, it follows tha the third ground must fall away for obvious reasons. In sur.' this appeal is allowed. We quash the conviction and set aSide the death sentence and set the appellant at liberty forthwith. G. . PHIRI SUPREME COURT JUDGE ....................................... E. N. C. MUYOVWE SUPREME COURT JUDGE (RETIRED) ••• 0 ••••••••••••••••••••••••••••••••••• M. LISIMBA AG/SUPREME COURT JUDGE JlS