Justine Musukwa v The People (Appeal No 88/2022) [2023] ZMCA 275 (15 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction ) Appeal No 88/2022 BETWEEN: JUSTINE MUSUKWA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga JJA ON: 17th January 2022 and 15th November 2023 For the Appellant: M. Makinka, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: A. Kennedy-Mwanza, Senior Sate Advocate, National Prosecution Authority J U D G M E N T Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. Mbinga Nyambe v. The People (2011] Z. R. 246 2. Nkhata and Others v. Attorney General [1966] Z. R. 124 3. Kanyanga v. The People, SCZ Appeal No. 145 of 2011 4. Edward Sinyama v. The People [1993-1994] Z. R. 16 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia INTRODUCTION J2 [ll The appellant appeared before the High Court (Limbani, J.), on a charge of murder contrary to Section 200 of the Penal Code. [21 He denied the charge and the matter proceeded to trial. [31 At the end of the trial, he was found guilty as charged, and condemned to suffer capital punishment. [41 He has appealed against the conviction. CASE BEFORE THE TRIAL JUDGE [SJ On the 3 of February 2021, around 19: 00 hours, Gift rd Munyenyembe and his sister Florence Munyenyembe, left the market place in their village in Muyombe, heading home. [61 On their way, they met the appellant who was Florence Munyenyembe's estranged husband. Florence Munyenyembe had in the last few days left home following a marital dispute. [71 The appellant greeted both of them and held on to his wife after a handshake. [BJ Even though the conversation that followed between the appellant and his wife, appeared like an argument, J3 Gift Munyenyembe walked away believing that the appellant wanted to talk to his wife. [9J Just before reaching his house, which was nearby, Gift Munyenyembe heard his sister cry out for help. He ran back to where he had left her with the appellant. c101 As he got there, the appellant fled. He noticed that his sister had a wound on the stomach and she told him that the appellant had stabbed her with a knife. c111 The appellant's wife was taken to the hospital where she died 2 days later. c121 When a post-mortem was conducted on her body, the cause of her death was found to be a stabbing that had perforated the bowel. [13J The appellant was never to be seen again until his apprehension in Malawi on the 8th of April 2021. (141 The appellant's unsworn statement in court, was that that evening, his wife tripped and fell on a wire mesh that she had been using to roast maize at the market. Following the fall, he helped her up and escorted her home. FINDINGS BY THE TRIAL COURT J4 c1s1 The trial Judge opined that the case against the appellant was grounded on circumstantial evidence. [16J He found that appellant's explanation of how his wife got injured, could not reasonably have been true. He also treated the appellant's flight, soon after the incident, as incriminating. [17J The trial Judge concluded that on the evidence before him, the prosecution had proved beyond all reasonable doubt that the appellant murdered his wife. c1s1 The appellant was condemned to suffer capital punishment after the trial Judge found that there were no extenuating circumstances. THE SOLE GROUND OF APPEAL AND ARGUMENTS IN SUPPORT [19J The sole ground of appeal is that an inference of guilty is not the only inference that could have been drawn on the evidence that was against the appellant. c201 In support of the sole ground of appeal, Mr. Makinka referred to the case of Mbinga Nyambe v The People1 and submitted that the appellant's story was reasonably possible. JS (211 He then submitted that since Gift Munyenyembe did not see the appellant stab his wife, the appellant's explanation should not have been dismissed as one that could not reasonably have been true. (221 Mr. Makinka also argued that Florence Munyenyembe's statement that the appellant stabbed her, should not have been received as either res gestae or a dying declaration, because the police did not interview her concerning the circumstances of the stabbing. ARGUMENTS IN RESPONSE TO THE APPEAL (231 In response, Mrs. Kennedy-Mwanza submitted that the trial Judge cannot be faulted for finding that the appellant's explanation that his wife suffered the fatal injury after she fell on the wire mesh, could not reasonably have been true. (241 She also submitted that the trial Judge was entitled discredit the appellant's story on the basis that his flight into Malawi, was not, in the circumstances of this case, the conduct of an innocent person. J6 COURT'S CONSIDERATION OF THE APPEAL AND DECISION c2s1 It was common cause that Florence Munyenyembe suffered the injuries that led to her death while in the company of the appellant. The environment immediately preceding Florence Munyenyembe's suffering the fatal injuries, was far from cordial. [26J She had earlier left the matrimonial home following misunderstandings with the appellant. Further, on the day she suffered the fatal injury she appeared to have been arguing with the appellant. [27J Mr. Makinka argued that Florence Munyenyembe's statement incriminating the appellant should not have been received because she was not interviewed by the police. c2a1 We are not aware of any principle of law to the effect that a statement made by a deceased person, can only be received as either res gestae or as a dying declaration, where the maker was interviewed by the police. [29J As the law stands, such statements are admissible as long as the person tendering the statement satisfies the court, in the case of res gestae, that they were J7 made contemporaneous to the infliction of the injury that caused death, and in the case of a dying declaration, that the deceased had lost expectation of living. [30J In the case of Edward Sinyama v. The People it was held that: "A statement is not ineligible as part of the res gestae if a question has been asked and the victim has replied or if the victim has run for half a kilometre to make the report. If the statement has otherwise been made in conditions of approximate though not exact contemporaneity by a person so intensely involved and so in the throes of the event that there is no opportunity for concoction or distortion to the disadvantage of the defendant or the advantage of the maker, then the true test and the primary concern of the Court must be whether the possibility of concoction or distortion should be disregarded in the particular case" [31J In this case, soon after Florence Munyenyembe cried out for help, her brother rushed to where he had left her. She immediately had told him that the appellant stabbed her. [32J Going by the decision in Edward Sinyama v. The People 4, Florence Munyenyembe's incriminating statement was rightly admitted into evidence because although not made in exact contemporaneity, it was made JS in approximate contemporaneity to the stabbing ruling out the danger of concoction. [33J Further, the appellant's claim that his wife fell on a wire mesh she was carrying after tripping, is not supported by the medical evidence that that established she suffered a stab wound. [34J Having in mind that the appellant his fled following wife's distress call, it is our view that the trial Judge was entitled to come to the conclusion that the only inference that could be drawn on the evidence before him was that the appellant stabbed his wife. VERDICT [3SJ We find no merits in the sole ground of appeal and we dismiss it. [36J We also uphold the conviction and the sentence imposed on the appellant. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT ················�············· B. M. Majula COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE