Kent Chuulu v the People (Appeal No. 39/2022) [2023] ZMCA 432 (21 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: f\}~\. IC OF l,4,M 81 ~OFAPPf,A,{,"l AppealNo.39/2022 KENT CHUULU · · l~ FEB 2023 APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga JJA On 12th October, 2022 and 21st February, 2023 For the Appellant: Mrs. M. Mulanda-Banda, Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. M. P. Lungu State Advocate, National Prosecutions Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Mushanga v. The People - SCZ Judgment No. 18 of 1983 2. Major Isaac Masonga v. The People - SCZ Judgment No. 24 of 2009 3. Dorothy Mutale and Richard Phiri v. The People (1997) SJ 51 (SC) 4. Chabala v. The People (1976) ZR 4 5. The People v. Njobvu (1968) ZR 132 6. Benson Kamila v. The People - Appeal No. 96 of 2017 7. John Musonda Mwanamwenge v. The People (2012) ZR 15 J2 8. Kahale Kanyanga v. The People - SCZ Judgment No. 145 of 9. Mirriam Mulenga v. The People - Appeal No. 50 of 2020 10. S v McBride 40/88 (1988) ZASCA 40 (30th March, 1988) Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The Appellant was sentenced to death by Mulife J following a conviction of murder in the High Court. He has appealed against the conviction and sentence on the basis that the prosecution did not prove their case beyond reasonable doubt. The particulars of offence alleged that on 25th May, 2019 at Choma in Southern Province of the Republic of Zambia the appellant murdered Joyce Chilala. 2.0 BACKGROUND 2.1 Prior to trial, on the application of the defence, the trial court referred the appellant to Chainama Hills Hospital pursuant to Section 17 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia, to undergo a mental evaluation to ascertain his state of mind J3 at the time of the commission of the offence, and whether he was fit to take plea and to follow proceedings during trial. 2.2. The Medical Report dated 30th September, 2020 indicated as follows: The findings suggest that Kent Chuulu had a history of abusing alcohol and he developed an Alcohol Dependency Syndrome as evidenced by his experiencing withdrawal symptoms when not drinking amongst other symptomatology. At the time of the offence, he had no diagnosable mental illness but was rather intoxicated with alcohol. Alcohol intoxication frequently leads to an impairment in judgment and impulse control, and appears to have contributed to him committing the alleged offence ....... . He is able to make a plea and follow proceedings of the court but will be required to remain on antidepressant medication for at least 6 months. 3.0 PROSECUTION EVIDENCE IN THE COURT BELOW 3.1 The prosecution called a total of five witnesses. A summary of the evidence of PWl Boyd Moono a security guard at Guard Star Security Company in Choma was that on 25th May, 2019 around 17:00 hours J4 while in the company of his workmate by the name of Philemon at Green Eagles Football Club Stadium, they heard people shouting "he has killed the child." They took interest in what was happening and a woman came to them telling them that the person who was running away had killed a child. He and other security guards started chasing the said person until they caught him at Langila Lodge. After apprehending him, they took him back to the stadium where he was alleged to have dumped the child. When they reached there, he showed them where he had dumped the child and thereafter he was taken to Choma Central Police Station. 3.2 He further told the trial court that at the scene, he observed that there was a black laptop bag next to where the child was lying and the child was half naked on the lower part of the body. He stated that he spent almost 30 minutes with the appellant. 3.3 In cross-examination, PW 1 stated that the appellant did not appear to be drunk when he was apprehended. 3.4 Donald Simato a Councillor in Simacheche Ward in Choma Constituency testified as PW2. He told the trial court that around 17:00 hours on 25th May, 2019, he received a call from Martha Mkandawire " that there was a body of a dead child that had been discovered at JS Choma Independent Stadium. He rushed to the stadium where he found the lifeless body of a child. He immediately rushed to the police to report the matter. After reporting the matter, the CIO took him to the holding cell where he was showed the appellant who had been apprehended in connection with the said dead body. 3.5 It was his testimony that the appellant told him that the lifeless body was Joyce Chilala the daughter to Patricia Muleya who was his sister. It was his further testimony that the appellant also told him that it is him who had dumped the child at the stadium. PW2 told the trial court that the body was later deposited at the mortuary. He also stated that he could not identify the appellant as it was dark when he went to the holding cell to see him. 3.6 Under cross-examination he told the trial court that when he visited the police cells, the appellant never mentioned that he was drunk at the time of the commission of the offence. He stated that he was not aware that the appellant's friends had put alcohol in the beverage the appellant was drinking without his knowledge. He confirmed that the appellant co-operated when he interacted with him. ,., 3.7 The third prosecution witness was Innocent Chilala aged 15 years and J6 the older brother to the deceased. A summary of his testimony was that on 25th May, 2019, his mother left him in charge of his two siblings, the three-year-old deceased and Innocent Munkombwe aged 10 when she went for work. He told the trial court that at the time his mother was going for work, his uncle the appellant was asleep. He stated that when the appellant woke up, he sent him to Chalo Bantu Bar to call the appellant's friends. The appellant also sent Innocent Munkombwe to go to their father's place and told them to leave the deceased in his care. 3.8 He stated that when he returned home, he asked the appellant where the deceased was and the appellant told him to look around the house as the deceased had walked out. He testified that he went to look for the deceased outside but did not find her. He told the trial court that after a short while the appellant left for town carrying a black bag. The appellant told him that he should find the deceased when he returns. He told the trial court that around 17:00 hours, his friend told him that the deceased had been found dead behind the stadium. He identified the appellant and the black bag he carried. J7 3.9 Under cross-examination, PW3 told the court that on the material day the appellant interacted with him and that he was not drunk. He stated that he did not take long to return from where the appellant had sent him. He conceded that he was not with the appellant the whole time therefore cannot know whether he took alcohol or not. 3.10 Patricia Muleya, the mother to the deceased and the older sister to the appellant testified as PW4. She told the trial court that on 25th May, 2019, she went for a piece work around 10 am leaving her children at home under the care of PW3. That when she returned home around 13:00 hours, she did not find the deceased and the appellant. 3.11 She enquired from PW3 where the deceased was and PW3 narrated to her that he did not find the deceased when he returned from where the appellant had sent him. That he searched for the deceased around the compound but did not find her. She enquired from the appellant the whereabouts of the deceased and the appellant told her that he had left the deceased with his siblings. It was her further testimony that she continued with her search and when she reached a place called Makanyuza, she found people who were saying that they had found a dead child at the stadium. She rushed to the stadium where • she found her daughter lying down half naked lifeless. She told the J8 trial court that near the deceased body was a black bag that the accused was carrying when he left home. 3.12 She told the trial court that she had lived with the appellant for so many years and she had never known him to take alcohol. 3.13 Under cross-examination, PW4 stated that on the material day, the appellant seemed uneasy as he was leaving. She said he appeared confused but she just thought he was not interested in what had happened. 3.14 Constable Stella Kondowe of Choma Police Station testified as PWS. It was her testimony that on 29th May, 2019, she was allocated a murder docket following a report made by the Councillor for Simutete Ward. It was her testimony that the report was regarding the alleged murder of Joyce Chilala by the appellant. The body of the deceased was alleged to have been put in a laptop bag and dumped at Choma Independence Stadium. As the appellant was already in custody, she warned and cautioned him verbally of the offence of murder and informed him that he was free to call any relative or lawyer to be present. 3.15 She proceeded to interview the appellant who told her that he had J9 taken some Chibuku beer and that he was left with his sister's three children amongst who was the deceased. That h~ took advantage of the situation and defiled the deceased. After seeing that he had injured her, he strangled her neck and picked the body and put it in the laptop bag and dumped it at Choma Stadium. That while at the stadium, he was seen by the members of the public who apprehended him and took him to the police. 3.16 It was her further testimony that she made up her mind to charge and arrest the appellant for the offence of murder. She went on to tell the trial court that she attended the post-mortem examination where it was found that the deceased was sexually abused and her neck was strangled. 3.17 In cross-examination, PWS told the trial court that she did not know that the appellant suffers from a disease called Alcohol Dependency Syndrome and would not know that one of the symptoms of this disorder was lapses in his memory. 3.18 This marked the end of the prosecution case. The appellant was found with a case to answer and accordingly, he was put in his defence. 4.0 THE DEFENCE JlO 4.1 In his defence, the appellant opted to give sworn evidence and called no witnesses. He told the trial court that on the material day, he went out for a piece work and on his way back home he met his friends at a bar where he took a can of kungfu drink. He stated that after taking the drink he felt like he had drunk beer and felt sexually aroused. When he arrived home he found PW3 and his siblings. He proceeded to send Innocent to his father while he sent PW3 to Chalo Bantu Bar. He told the trial court that after the two boys left he had canal knowledge with the deceased and after he finished, he noticed that the neck of the deceased was out of position. He thought that she had fainted, and he decided to go and dump her at the stadium. He stated that he was in a state of confusion just before he had intercourse with the deceased and he attributed the confusion to the alcohol he had consumed. According to him, the examination report from Chainama Hills Hospital indicates that he suffers from Alcohol Dependency Syndrome. 4.2 In cross-examination, the appellant conceded committing the offence but stated that he was not in his right frame of mind. He stated that Jll he recalls being confused for about 30 minutes prior to having sexual intercourse with the deceased. He further explained that he recalled sending PW3 away and the deceased coming to the room he was in and having sex with her. 5.0 FINDINGS AND DECISION OF THE LOWER COURT 5.1 After careful consideration of the evidence before him, the learned trial judge stated that the appellant having accepted committing the offence in question, it was for the court to determine whether the appellant was intoxicated at the time of the commission of the offence and whether as a result of that intoxication, he was not able to appreciate the nature and quality of his actions. The trial court found that the conclusion made by Dr. Nita Besa in the medical examination of the appellant is not based on the medical examination of the appellant but rather the forensic history discloses that Dr. Nita Besa made this conclusion based on information supplied by the appellant. The trial judge approached the doctor's conclusion with caution as the aspect of intoxication was based on the information provided by an individual who had an interest in the outcome of the proceeding. The trial court relied on the case of Mushanga v. The People1 and came J12 to the conclusion that the defence of intoxication that was raised by the appellant was an afterthought. He agreed with the prosecution that the appellant was not intoxicated on the material day which evidence was corroborated by PWl, PW2, PW3 and PW4. 5.2 In conclusion, the trial judge found that the appellant was aware of the nature and quality of his impugned actions on the material day and therefore acted with malice aforethought in terminating the life of the deceased. The appellant was found guilty and accordingly convicted of the offence of murder. The trial judge went further to find no extenuating circumstances in this matter. The appellant was later sentenced to death by hanging until he is pronounced dead. 6.0 GROUNDS OF APPEAL 6.1 Embittered with the conviction, the appellant filed one ground of appeal couched as follows: (1) The learned trial court erred in law and fact when the court found that the state had proved their case beyond all reasonable doubt when the evidence on record fell short of the required standard. 7.0 APPELLANT'S ARGUMENTS 7 .1 In support of the sole ground of appeal, the learned counsel for the appellant contended that the trial court erred in law when it proceeded J13 to admit into evidence, a confession without conducting a trial within a trial to determine whether the confession was obtained freely and voluntarily, especially that it was led into evidence by the arresting officer a person in authority. We were referred to the case of Major Isaac Masonga v. The People2 • 7 .2 It was contended that had the trial court held a trial within a trial, the prosecution would have been tasked to prove that indeed the statement was obtained free of any duress, inducement, promise or other factors. According to counsel, other inferences exist in this case which should have been resolved in the appellant's favour. We were referred to the case of Dorothy Mutale and Richard Phiri v. The People3 where it was held that: "Where two or more inferences are possible, it has always been a cardinal principle of criminal law that the court will adopt the one, which is more favourable to an accused if there is nothing in the case to exclude such inferences." 7.3 In summation, it was contended that the trial court fell in grave error when the court failed to consider the reasonable explanation advanced by the appellant thereby shifting the burden of proof on him. We were J14 referred to the case of Chabala v. The People4 where the Supreme Court held that: "If the explanation is given, because guilty is a matter of inference, there cannot be a conviction if the explanation might reasonably be true, for then guilt is not inference. It is correct to say that the accused must give a satisfactory explanation." 7.4 It was submitted that given the evidence on record, it is clear that the appellant had no mens rea for the offence of murder and that the trial court erred when it convicted the appellant of murder. It was the appellant's prayer that his ground of appeal is allowed and that the sentence is quashed so that he be convicted of a lesser offence of manslaughter and sentenced accordingly. 8.0 RESPONDENT'S ARGUMENTS 8.1 On behalf of the respondent, the learned counsel argued that the trial court was on firm ground when it convicted the appellant. It was contended that the trial court was on firm ground when it admitted into evidence the incriminating statements made by PWS. It was submitted that the post-mortem examination report on the record indicates the cause of death to have been asphyxiation with a broken neck. Counsel contended that even if the incriminating evidence JlS proffered by PWS was to be removed, for gracing the court's record irregularly, the rest of the evidence on record will still point to the fact that it was the appellant's acts that led to the death of the deceased. 8.2 It was further submitted that throughout the proceedings in the court below, the appellant did not dispute having caused the death of the deceased. It was submitted that according to Section 204 of the Penal Code1, malice aforethought was established in this case. We were referred to the case of The People v. Njobvu 5 • It was contended that the appellant knew or ought to have known that having sexual intercourse with a three-year-old would cause grievous bodily harm or death. We were also referred to the case of Benson Kamila v. The People6 where it was held that: "Where no direct evidence is led on the degree of force used, the court can draw an inference as to whether the degree of force was so extreme that the accused ought to have contemplated that grievous bodily harm could result from the assault." 8.3 It was submitted that the appellant's action of putting the deceased's body in a bag and dumping it at a stadium is associated with the actions of a guilty person in full control of his faculties who is trying to conceal his actions. We were urged to 9.0 9.1 J16 dismiss this appeal and uphold the trial court's conviction and sentence. THE HEARING At the hearing of this appeal on 11th October, 2022, learned counsel for the appellant Mrs. M. Mulanda-Banda and learned counsel for the respondent Mrs. M. P. Lungu informed the Court that they would rely on the filed arguments. 10.0 CONSIDERATION AND DECISION OF THE COURT 10.1 We have carefully examined the evidence on the record, the arguments by both counsel and the judgment of the lower court. As we see it, this appeal raises two issues which require our attention. The first issue is the admissibility of confession statements made to a person in authority, tied to it, the propriety of the conviction and the second issue is the legal principles surrounding extenuating circumstances. 10.2 The first issue relates to admissibility of a confession statement given to PWS. We note that at the time PWS was giving evidence incriminating the appellant during the trial, the trial court did not enquire from the appellant whether the said evidence was J17 obtained freely and voluntarily, as required by the law. On this point, we agree with counsel for the appellant that the trial court should have expunged the criminating evidence. We accordingly expunge said evidence from the record. 10.3 The argument by the appellant that he did not have the requisite mens rea to commit the offence of murder holds no water. The appellant defiled a baby to death. The neck was broken in the process, which ultimately is the cause of death. He certainly had knowledge that the act or commission would probably cause the death of or grievous harm to the child. He also caused the death of the deceased in the process of committing a felony. These circumstances satisfy malice aforethought for murder in Section 204 of the Penal Code. 10.4 This argument is thus bereft of merit. In the circumstances therefore, even with the exclusion of the confession evidence, there is overwhelming evidence against the appellant. 10.5 This brings us to the second issue relating to extenuating circumstances. Section 201 of the Penal Code provides that - (1) any person convicted of murder shall be sentenced- .. J18 (a) Death; or (b) Where there are extenuating circumstances to any sentence other than death provided that paragraph of this subsection shall not apply to murder committed, course of Aggravated robbery with a firearm under section 294. the in (2) for purposes of this section - (a) An extenuating circumstance is any fact associated with the offence which diminishes morally the degree of the convicted person's guilty; (b) In deciding whether or not there are extenuating circumstances the court shall consider the standard of behaviour of an ordinary person or class of the community to which the convict belongs. 10.6 The law on extenuating circumstances is well-settled in our jurisdiction. In the case of John Musonda Mwanamwenge v. The People7 , the Supreme Court defined an extenuating circumstance as: "The mitigating circumstance or fact or situation that does not justify or excuse a wrong act or offence but reduces the degree of culpability and this may reduce the damage (in case of a civil case) or the punishment (in a criminal case). A fact or situation that does not bear on the question of the defendant's guilt but that is considered by the court in imposing punishment and especially in lessening the severity of the sentence." J19 10.7 The Supreme Court also explained in the case of Kahale Kanyanga v. The People8 that: "Where extenuation is being pleaded, the necessary intent has been established, but the defence is saying due to circumstances like an accusation of witchcraft, which the accused committed the murder, so that should diminish his culpability. The plea is therefore in mitigatory against the intimate sentence. In other jurisdiction, they call it diminished responsibility." is a stigma, 10.8 It is trite that the burden of proving that there were extenuating circumstances associated with the commission of the murder rests upon the accused person. In the case of Mirriam Mulenga v. The People9 , this court referred to a South African case of S v. McBride10 where it was held that: that there were " ... The burden of proving, on a balance of extenuating probabilities circumstances associated with the commission of ... The the murders rests upon the accused determination of the presence or absence of extenuating circumstances involves a threefold enquiry: (1) whether there were at the time of the commission of the crime facts or circumstances which could have influenced the accused's state of mind or mental faculties and could serve to constitute extenuation; (2) Whether such facts or circumstances in their influence the cumulative effect, probably did J20 accused's state of mind in doing what he did; and (3) whether his influence was of such a nature as to reduce the moral blame worthiness of the accused in doing what he did. In deciding (3) the trial court passes a moral judgment .... This and other similar formulations are no doubt helpful and conducive to clarity of thought on the topic, but they should not be treated as if they are statutory injunctions. What is essentially a flexible enquiry should not be so shackled." 10.9 The Court went on to elaborate on the principles which govern extenuating circumstances as follows: "As to what constitutes extenuating circumstances, various descriptions have been given ... 'In our view an extenuating circumstance .. , is a fact associated with the crime which serves in the minds of reasonable men to diminish, morally albeit not legally, the degree of the prisoner's guilt. The mentality of the accused furnishes such a fact ... No factor, not too remote or too faintly or indirectly related to the commission of the crime, which bears upon the accused's moral blame worthiness in committing it, can be ruled out from consideration." 10.10 In the present case, there is the medical examination report of the Psychiatrist whose expert evidence is that at the time of the offence, the appellant had no diagnosable mental illness but was rather intoxicated with alcohol. The doctor came to the conclusion that the appellant was able to take a plea, stand trial . 'i J21 and follow proceedings of the court but will be required to remain on anti-depressant medication for at least six months following full recovery. 10.11 We have analysed the evidence of PWl, PW2, PW3, PW4, and the appellant as well as the expert evidence. The evidence of PWl to PW 4 is that the appellant did not appear to be drunk on the material day. Further in his evidence, the appellant was able to properly recount everything that happened on the material day soon after he was taken to the police and he recounted the same during the trial. We are of the view that even if the appellant may have taken some alcohol on the material day, this did not rise to the threshold of extenuation. In addition, we note that in the history the appellant provided at Chainama Hills Hospital, he mentioned that he had been drinking all night contrary to the evidence he gave in his defence in chief where he intimated that his friends whom he met at Chalo Bantu Bar put some alcohol in his drink. 10.12 We agree with the trial court that expert evidence is simply an J22 opinion and the courts are not mandated to follow the findings of the expert, especially where there is overwhelming evidence on the record to the contrary. We do not fault the finding of the trial court that the defence of intoxication raised by the appellant was a mere afterthought. It is clear from the evidence on the record that the modus operandi employed by the appellant in taking advantage of the three-year-old niece, i.e. sending away PW3 and his younger brother indicates that he knew what he wanted to do which he successfully executed. 11.0 CONCLUSION 11.1 We do not find merit in the sole ground of appeal. The appeal is dismissed. The appellant's conviction and sentence imposed by the trial court is upheld. DEP F. M. CHISHIMBA COURT OF APPEAL JUDGE K. ZENGA COURT OF APPEAL JUDGE