Lackson Simwanza v the People (Appeal No. 14/2022) [2023] ZMCA 433 (23 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 14/2022 BETWEEN: LACKSON SIMWANZA APPELLANT AND THE PEOPLE ~ RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga JJA On 21 st September, 2022 and 23rd February, 2023 For the Appellant: Ms. Z. Ponde, Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. R. L. Masembela, Deputy State Advocate, National Prosecutions Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Mbomena v. The People (1967) ZR 89 2. Simutenda v. The People (1975) ZR 294 3. Nyambe Mubukwanu Liyumbi v. The People (1978) ZR 25 J2 4. Nyambe v. The People - High Court Judgment No. 17 of 2010 5. Lavey Mweene v. The People - Court of Appeal No. 86 of 6. Rodgers Kunda v. The People - SCZ Appeal No. 81 of 2017 7. Whiteson Simuskowe v. The People (2002) ZR 63 8. Penga Gumbwe v. The People - CAZ Appeal No. 151 of 2020 9. Yanyongo v. The People (1974) ZR 149 (SC) Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Criminal Procedural Code, Chapter 88 of the Laws of Zambia. 3. The Court of Appeal Act No. 7 of 2016 1.0 INTRODUCTION 1.1 The appellant was sentenced to death by Patel, J. following a conviction for attempted murder in count one and murder in count two. 1.2 The particulars of the offence in count one alleged that on 31st December, 2018 at Kalulushi in the Copperbelt Province of the Republic of Zambia, the appellant did attempt to murder Charity Nakainga. While in count two, the particulars allege that the appellant on 31 st December, 2018 at Kalulushi in the Copperbelt Province of the Republic of Zambia, did murder one Kapya Mpundu. J3 2.0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 The evidence for the prosecution centred on six witnesses. PWl the victim in count one gave evidence to the effect that on the night of 30th December, 2018, while asleep, she was awakened by someone touching her on her thigh. She opened her eyes and saw the appellant standing next to her bed, armed with a long knife in his right hand, while he used his left hand to awaken her. She narrated that the deceased, Kapya Mpundu Bernard Chishimba, was sleeping behind her and that the appellant gestured to her to keep silent and follow him out of the bedroom. She explained that she was only dressed in underwear and was not allowed to reach for a chitenge material, as the appellant beckoned her and whispered that he would kill her if she did not follow him out. She stated that there was enough light in the bedroom and she was able to clearly see the appellant. 2.2 PWl narrated that she followed the appellant to the sitting room where her cousin Gift PWS was sleeping with her firstborn son Terrence. She went on to narrate that she kicked Gift on the leg to awaken her, while she could feel the appellant holding the blade of J4 the knife at her shoulder. She told the trial court that Gift woke up and immediately recognised the appellant. At that time they were near the front door of the house which was open although she had personally locked it before sleeping. 2.3 When they reached the door, she shouted for help and the appellant stabbed her on her left shoulder. The appellant turned to attack the deceased who was shouting at the appellant and asking him why he was attacking her. She went on to narrate that as the deceased was about to use his phone to make a call, the appellant struck him and grabbed him by the neck and stabbed him several times on the right side of his body. She told the trial court that she called for help from her aunt, Christine Nakainga, PW3 who lived near in the main house. 2.4 She testified that her aunt came out and asked her what had happened and she told her that she had been stabbed. At this point, the deceased had managed to subdue the appellant and had apprehended the appellant by his pair of trousers. At the same time, Gift and Terrence alerted the neighbours. 2.5 She narrated that one neighbour by the name of Lackson Bupe PW2 came through and assisted in apprehending the appellant. She JS narrated further that her aunt organised a vehicle which took them to Chubuluma Police Station, where they were given medical report forms to take to the clinic. They were later taken to Kalulushi Hospital, where they received medical attention. She told the trial court that after some time, she was informed by one of the nurses on duty that the deceased had passed away. She was discharged from the hospital on 4th January, 2019. She confirmed the identity of the appellant as her assailant on the material night as she knew him very well. 2.6 PWl went on to testify that she had been in a relationship with the appellant since 2014, when she worked in a bottle store, as a bar lady in Chibuluma, where she lived at the time. She stated that she made several attempts to end the relationship after discovering that the appellant was married. It was her evidence that the appellant was abusive and violent towards her and due to this she shifted to a place 30 minutes away from the appellant. That the appellant would still follow her and demand sex at any time on the threat of violence. She told the court that she confided in her auntie PW3 who made several complaints to the police. She also mentioned that the J6 appellant's continued abuse and violence made her take out summons against him from the Kalulushi Local Court on 1st June, 2018 although she did not proceed with the hearing of the complaint against the appellant. 2. 7 She testified that the appellant's abusive behaviour escalated to the extent that she reported him to the police on 29th December, 2018 and on 30th December, 2018 she and the appellant were at the police station and the appellant was warned. She told the trial court that the police advised her to return on 1st January, 2019 to issue another summons against the appellant and the appellant attacked her on the same night. 2.8 Under cross-examination, she stated that her relationship with the appellant continued over the years. She accepted that despite the appellant's violent behaviour towards her, she did not press formal charges against him. She also confirmed that the appellant had keys to her house. She told the court that she was in a fairly new relationship with the deceased and she denied that on the material night, the deceased taunted the appellant and challenged his manhood. J7 2. 9 In re-examination, she clarified that she had reported the matter to the Victim Support Unit at least 4 times. 2.10 The second witness was PWl's neighbour, Luckson Bupe and his evidence was to the effect that on the material night he heard noises and shouting from PWl's house. He was able to recognise PWl's voice as she was screaming that she was going to die. He told the trial court that he went to PWl's house and he saw PW1 dressed in underwear and appeared to be bleeding . He also observed that the appellant was being held by the deceased, although he could not tell at the time that the deceased had been stabbed. He later noted that the deceased was bleeding below the armpit. He assisted in holding the appellant down, who also attempted to stab him with the knife that he was holding. 2.11 It was his further testimony that after PW1 and the deceased left for the clinic, he and other people tied the hands and feet of the accused, and put him in a wheelbarrow and took him to the Chubuluma Police Post together with the knife and a pair of pliers which the appellant had. He received information the following day that the deceased had died at the hospital. He narrated that in the J8 morning the police came to the scene and that the place where the deceased had fallen was full of blood. They also discovered some items in the yard such as keys, a pair of black trousers and a thick piece of rope. He told the trial court that he only knew the deceased on the material night and that he knew the appellant to be PWl's boyfriend and that he saw the appellant holding a knife and threatening to kill him with it and that the struggle with him lasted for more than 20 minutes. He identified the accused in court and described the physical features of the knife and the pair of pliers. 2.12 In cross-examination, PW2 confirmed that on the material night, he heard PWl screaming and that he went to her house and found the appellant who he knew as PWl's boyfriend. He confirmed that he did not witness the stabbing of PWl and the deceased, but witnessed the events after he came out of his own house. 2.13 In re-examination, he stated that there was enough light at the time of the incident and that he saw the appellant holding the knife and was even threatened by the accused, who said he would kill him. 2.14 The third prosecution witness was Christine Nakainga the auntie to PWl. Her testimony was that on the material night, she heard PWl J9 screaming and shouting for help and when she looked through her window, the saw PWl naked with blood oozing out near her left shoulder. She rushed to the scene only to find the deceased lying on the ground screaming in pain and the appellant also pinned to the ground by PW2 who was tying the hands of the appellant. She narrated that she was able to see the injury of the deceased from the light coming from the houses of PWl and PW2. It was her testimony that she rushed to look for a car to take PWl and the deceased to the hospital and after the two were rushed to the clinic the rest of the people who had gathered took the appellant to the police. 2.15 PW3 told the trial court that PW2 gave a statement at the police while she remained with PWl. After the statements were taken, they all went home and around 04:00 hours, she received a phone call that the deceased had died. She went to Kalulushi hospital to see the body of the deceased and confirmed it to be his, after which she went to see PWl who was in the same hospital. She stated that the appellant and PWl used to date some time back and that she had been seeing the deceased with PWl for about two weeks prior to the incident. JlO 2.16 Under cross-examination, she confirmed that the appellant used to frequent PW1's house late in the night and that PW2 was the first person at the scene on the material night. She confirmed the setup of the houses, with hers being the main house and PW1 and PW2 occupying the 2 cabins adjacent to her house. 2.17 Inspector Oscar Mwimbe of Chibuluma Police Post was the fourth prosecution witness. He told the trial court that just after midnight on 31 st December, 2018 he received a call from PW1 who was reporting that she and her male friend had been stabbed by the appellant. He narrated that he arrived at the Chibuluma Police Station at around 05:00 hours and was given a report of the incident by Constable Mwanza. The appellant, the knife and a pair of pliers were handed over to him to be further processed at Kalulushi Police Station. He told the trial court that he went to the scene with the appellant and he confirmed the signs of struggle and saw blood near PW1's house. He described the setup of the 3 houses and confirmed that he found PW2 who confirmed the incident. 2.18 He narrated that thereafter he went to Kalulushi clinic where he saw PW1 with a deep wound on her left shoulder and saw the lifeless Jll body of the deceased with a stab wound under his left arm and back. He continued his testimony that he had attended to PW1 and the appellant over three complaints which had been made by PW1 against the appellant's abusive behaviour towards her. He was informed that the two were in a relationship some time back and he advised PW1 to go to local court and issue a summons against the appellant to stop him forcing her into a relationship which she insisted had ended. 2.19 It was his further testimony that PW1 complained of being sexually abused by the appellant especially when the appellant saw her with any other male person. He confirmed that on 28th December, 2018 he received another complaint from PW1 and he gave her his telephone number. He confirmed that he handed over whatever evidence he had gathered to Detective Sergeant Sinkala. 2.20 In cross-examination he told the trial court that he had known of the prior relationship between the appellant and PW1 and that was the reason he decided to counsel the appellant to stop bothering PWL He confirmed that his investigation at the scene after the incident was limited to what he had observed outside and that he did not J12 investigate the doors or windows for any sign of forced entry. However, he could not confirm if the relationship had ended between the appellant and PWl. 2.21 Gift Nakainga testified as PWS and a summary of her evidence was that on the material night while asleep, she heard a knock on the door around midnight of 31st December, 2018. She opened the door to see who it was but did not find anyone. She together with Terrence, the son to PWl locked the door and went back to sleep. 2.22 After a short time, someone uncovered the blanket on her head and she saw that it was the appellant. He covered her again and went towards PWl's bedroom, where he started pulling PWl and a fight ensued. She narrated that PWl kicked her on the leg told her to wake up shouting that they were all going to die. She narrated that she saw PWl being stabbed with a knife by the appellant. She stated that the appellant further stabbed the deceased under his left armpit and his back when he went outside to follow up PWl. The rest of her evidence on how PWl and the deceased were taken to the hospital and how the appellant was taken to the police is similar to that of PW2. J13 2.23 Under cross-examination she confirmed that she did not know the deceased and that the struggle took place outside. 2.24 The last prosecution witness was Inspector Maybin Sinkala, the arresting Officer. He told the trial court that on 31st December, 2018 he received a call from PW4 over a case of stabbing in Chibuluma. Upon arrival at the police station, he was handed a knife and a pair of pliers as the instruments used in the commission of the offence. He went to Kalulushi clinic to see PWl who had been stabbed on her left shoulder, by the accused who was already in police custody. He was unable to speak to the deceased due to the extent of his injuries and that he came to know his name as Kapya Bernard Mpundu Chishimba of Mufulira. He later recorded a statement from PWl and recorded a warn and caution statement from the appellant. He told the trial court that after he concluded his investigations in the matter, he made up his mind to arrest the appellant and charged him with one count of attempted murder and one count of murder. 2.25 Under cross-examination, PW6 confirmed that he knew of the relationship between the accused and PWl and that it had ended. He confirmed that the pair of keys and the pair of trousers allegedly J14 belonging to the accused was not handed over to him, nor did he submit the knife and pliers for fingerprints analysis. 2.26 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. He opted to give sworn evidence. 3.0 THE DEFENCE 3.1 In his defence, the appellant told the trial court that he started a relationship with PWl in 2016. He narrated that sometime in 2017 he stopped seeing her and he was called by the police on a complaint made by PWl that he had stopped supporting her. According to him, he was coerced into continuing the relationship with PWl at the threat of a civil lawsuit against him. He gave a detailed account of how he took care of PWl monetary wise and that to his displeasure, on 17th December, 2018, he saw PWl selling beer in a bar. He went to her and challenged her. They discussed the issue and she agreed to stop working at the said bar as she only earned K700.00 monthly, while he paid a lot more per month to sustain her. 3.2 He told the trial court that he received another police call out on 19th December, 2018. He went there with PWl and PWl's relatives. That JlS Officer Mwimbe attended to them and he was told that PWl had complained that he was depriving her of her right to employment. It was agreed that she finishes work that month end so that she gets paid for the month. He narrated that he continued with their relationship until 25th December, 2018 when PWl informed him that she was pregnant. That on 31 st December, 2018, he received news of a funeral in Kamakonde in Kitwe West and that he prepared for the funeral. He said he went to Kitwe to withdraw KlS,000.00 from his account which he divided into three, one for PWl's house, and another for his own family and the other for the funeral house. 3.3 He later decided to go to PWl's house around 21:00 hours and when he reached there he opened the door using his set of keys and saw the children sleeping on the chairs. He proceeded to the bedroom and saw two people sleeping on the bed under a mosquito net. He removed the net and saw a man sleeping with PWl and that they were both undressed. He told the trial court that he was not upset as she had made a choice, he woke her up to get dressed and come outside to discuss the matter. J16 3.4 To his shock, as she came out, she screamed thief and narrated that PWl and PW2 started attacking him and pinned him to the ground and that other people joined the fight and started beating him. He said they lifted him and took him to Chibuluma police station and never saw the deceased from the time he saw him sleeping on the bed with PWl. He was later informed that the deceased had died and he was later arrested. He denied having stabbed PWl or fighting with the deceased. He told the trial court that if he wanted to kill them, he could have killed them both when they were sleeping and defenseless. He denied all PWl's testimony relating to their acrimonious relationship. 3.5 Under cross-examination, he informed the court that he had been married for 33 years and had 5 children and that up until the incident he was still in an active relationship with PWl. He denied having been summoned to the local court and that despite spending so much money on PWl, he was not angry when he saw her in bed with the deceased. He denied sexually harassing PWl and also denied having stabbed PWl or the deceased. He also denied a pair of pliers fell out of his pocket. He maintained that all the prosecution J17 witnesses told lies to the court. He however confirmed going to PWl's house on the material night and that it was the same place where PWl was stabbed and the deceased received his fatal injuries and where he was apprehended and taken to the police. This marked the end of his defence. 4.0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 After careful consideration of the evidence before her, the learned trial judge found that the prosecution had proved their case beyond any reasonable doubt. 4.2 The trial court went on to find that the evidence as presented by the prosecution witnesses was credible and was not discredited or challenged in any material respect under cross-examination. 4.3 According to the trial judge, there were eye witnesses who saw the appellant stab the deceased and PWl. On the totality of the evidence before it, the trial court found that the appellant stabbed the deceased and did attempt to murder Charity Nakainga. Accordingly, he was convicted on the charge of attempted murder contrary to section 215(a) of the Penal Code. The trial court also found that the appellant had the requisite malice aforethought when J18 he caused the death of the deceased. He was found guilty on the second count of murder. 4.4 The trial count went further to find that there were no any extenuating circumstances and imposed the sentence of death. 5.0 GROUNDS OF APPEAL 5.1 Unhappy with the conviction, the appellant filed one ground of appeal couched as follows: The learned trial court erred in law and fact in her failure to consider the availability of provocation on the evidence on the record. 6.0 THE APPELLANT'S ARGUMENTS 6.1 In support of the sole ground of appeal, learned counsel for the appellant contended that it was not disputed that the appellant and PWl were in a relationship up until the day of the incident. Counsel contended that the evidence on the record reveals that there was provocation in that PWl was found in bed with the deceased by the appellant. It was submitted that even if the appellant did not plead provocation in his defence, in the case Mbomena v. The People1 it was held that: J19 "Where there is evidence which could reasonably support an alternative defence to that put forward, this defence must be considered although not in terms maintained by the prisoner." 6.2 It was submitted that the alternative defence to what the appellant had put forward was provocation and the trial court ought to have considered it. We were referred to the case of Simutenda v. The People 2 where it was held that: "A court is not required to deal with every possible defence that might be open to an accused person unless there is some evidence to support the defence, i.e. evidence fit to be left to a jury." 6.3 According to counsel, the act of finding his girlfriend in bed with another man was provocative and the question that needed to be answered by the trial court was whether any reasonable man would have lost his self-control given the same set of facts and reacted in the manner the appellant did. 6.4 We were referred to the case of Nyambe Mubukwanu Liyumbi v. The People3 where the Supreme Court held inter-alia that: "There are three inseparable elements to the defence of provocation, the act of provocation, the loss of self control, both actual and reasonable, and the retaliation J20 proportionate to the provocation. All three elements must be present before the defence is available." 6.5 It was contended that the fight ensued immediately and there was no time to cool off by the appellant. It was contended that the appellant had a knife which was used to stab the deceased and PWl and that the retaliation was proportionate because the appellant was so angry and the stabbing was as a result of the fight and struggling after he found the two in bed. 6.6 In summing up the arguments, it was contended that PWl had her own interest to serve by stating that her relationship with the appellant had come to an end as she did not want to be blamed for being the reason the deceased died. 6. 7 We were urged to consider possible provocation that was not considered by the trial judge. We were asked to set aside the death sentence and impose another sentence in light of the defence of provocation. 7 .0 RESPONDENT'S ARGUMENT 7.1 On behalf of the respondent, learned counsel contended that the appellant did not particularly plead the defence of provocation in his J21 defence during the trial and that he cannot ask the appellate court to consider the said defence. It was submitted that the law on provocation is well settled and we were referred to the case of Nyambe v. The People4 a High Court decision in support. 7.2 It was contended that the appellant has tried to show that he was in an intimate relationship with PWl and that he found her and the deceased sleeping naked on his bed which suggested adultery, however, in his defence, the appellant clearly stated that he was not upset when he found PWl naked in bed with the deceased and that explained why he did not react there and then. It was observed that even if the appellant is trying to plead the defence of provocation, it is on record that he denied having murdered the deceased and told the trial court that he was taken to the police as a thief. 7.3 Counsel contended that the court can only apply the law to facts that are supported by evidence and there is no evidence on record that supports the fact that the appellant got provoked and lost self-control when he found the deceased and PWl in bed together whilst naked. It was argued that since the appellant has not given evidence to the effect that he was provoked when he found PWl and the deceased J22 naked in bed, it follows that there was no need for the court to consider that there was an act of provocation. It was submitted that the court cannot replace a defence of a bare denial with the defence of provocation. In support of this, we were referred to the case of Simutenda v. The People supra. 7.4 We were further referred to our judgment in the case of Lavey Mweene v. The People5 , where we held that: "In order for a failed defence of provocation to qualify as extenuation, the accused must prove that there was a provocative act and that there was loss of self-control but the retaliation was not proportionate to the provocation." 7.5 We were further referred to the case of Rodgers Kunda v. The People6 where the Supreme Court stated that: the principal "Once provocation espoused in Whiteson Simuskowe v. The People7 that a failed defence of provocation affords extenuation for a murder charge will not apply." is non-existent, 7.6 It was submitted that the principle laid down in the above-cited case is applicable to this case. The appellant having failed to prove that there was an act of provocation and loss of self-control, a failed J23 defence of provocation which would amount to an extenuating circumstance is not available to the appellant. In summation we were urged to dismiss the appeal for want of merit. 8.0 THE HEARING 8.1 At the hearing of this appeal, learned counsel for the appellant Ms. Ponde informed the court that she would rely on the filed heads of arguments and learned counsel for the respondent Mr. Masempela, equally informed the court that they would also rely on the filed arguments. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by both parties and the judgment sought to be assailed. 9.2 We wish to note on the onset that although the appellant was convicted of one count of attempted murder and one count of murder, the appellant has only argued against the conviction for murder. We shall however, pursuant to Section 16 ( 4) of the Court of Appeal Act No. 7 of 2016, deal with the conviction for attempted murder at the end. J24 9.3 The law is very clear on the availability of provocation as a defence. There must be a provocative act, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation as espoused in the Nyambe Mubukwanu Liyumbi case supra. 9.4 In this case the appellant refused having been upset when he found PWl in bed with the deceased. He further denied having stabbed the deceased. Provocation as a defence or an extenuating circumstance is only available to a person who has been provoked, losses self-control and perpetrates the act which causes death among others. 9.5 We had occasion to consider a similar situation in the case Penga Gumbwe v. The People8 , where we stated the following at Page ]19: "7 .17. The appellant having denied stabbing Joseph Zulu, it is our view that the trial judge rightly found that there was no evidence before her on which she could consider the availability of the two defences. 7.18. How could she consider whether he had lost self control when he was stabbing Joseph Zulu when he denied stabbing him? .... " J25 9.6 Having denied being upset or losing self-control and stabbing the deceased, we found that the defence was not available to the appellant in that case. 9. 7 In this case, learned counsel for the appellant argued that the learned trial court erred when it failed to consider the availability of the defence of provocation and the case of Simutenda supra was relied on. We note that the trial court did not consider the availability of the defence of provocation. A court is duty bound to consider available defences where there is some evidence of it. In this case, the appellant and PWl had some kind of relationship and the appellant found her in bed with the deceased naked. This is clearly some evidence of provocation. The trial court erred when it did not consider it in its judgment. However, even if the trial court considered it, it would have inevitably found that the defence was unavailable to the appellant. In the circumstances, we find no merit in the ground of appeal and we dismiss it. 9.8 We now turn to the conviction for attempted murder. This offence requires positive intent to kill. In the case of Yanyongo v. The People9 the Supreme Court held that for a conviction of attempting J26 to cause death, it is necessary to prove an actual intention to kill; an intention to cause grievous harm is not sufficient. 9. 9 According to the medical report, PWl suffered a deep laceration of the left shoulder and tender on palpation. Even though the extent of injury and the area of the body targeted by the assailant may not provide conclusive proof of intent, it is a factor a court may consider in order to draw inferences in that regard. In this case we hold the view that the evidence before trial court in its totality does not establish beyond all reasonable doubt that the appellant did intend to cause the death of PWl. Had the learned trial court properly directed her mind, she would not have found that the appellant intended to cause death to PWl. We as such set aside the trial court's finding in this regard. 9.10 We are however of the view that the offence for which the appellant should have been convicted is assault occasioning actual bodily harm contrary to Section 248 of the Penal Code. We set aside the conviction for attempted murder and substitute it with a conviction for assault occasioning actual bodily harm, a minor offence in terms of Section 181 of the Criminal Procedure Code Chapter 88 of J27 the Laws Zambia. In the light of the circumstances of this case we impose a sentence three (3) years imprisonment with hard labour with effect from the date he was apprehended and taken into custody. 9.11 We wish to note that although the trial court had convicted the appellant of the offence of attempted murder, it did not impose a sentence in respect of this offence. This was a misdirection. A court must impose a sentence for each of the offences for which a conviction is entered. 10.0 CONCLUSION 10.1 We find no merit in the ground of appeal and we dismiss it. The conviction for murder and the sentence of death in count two is upheld. We have quashed the conviction for attempted murder and in its place a minor offence of assault occasioning actual bodily harm is substituted and we impose a sentence of three (3) years imprisonment with hard labour effective the date he was taken into custody. J28 10.2 The sentences will run concurrently. F. M. CHISHIMBA COURT OF APPEAL JUDGE ·· ··-~ ·-················ K. MUZENGA COURT OF APPEAL JUDGE