Leonard Yona Jere v People (Appeal N. 102/2019) [2020] ZMCA 231 (21 January 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA Appeal No. 102 /2019 (Criminal Jurisdiction) BETWEEN: LEONARD YONA JERE APPELLANT vs THE PEOPLE RESPONDENT Mchenga DJP, Sichinga and Majula, JJA On 19th November, 2019 and 21 st January, 2020 For the Appellant: For the Respondent: Mr. K. Katazo - Senior Legal Aid Counsel, L egal Aid Board. Mrs. M. Chilufya Kabwela - Senior State Advocate, National Prosecutions Authority JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Taylor & Others vs R ( 1952) All ER 480 2. Savour Mukamo vs The People Appeal No. 80 of2017 3. David Zulu vs The People (197 7) ZR 151 4. Dorothy Mutale and Another vs The People (1997) SJ 51 (SC) 5. Jack Chanda and Another vs The People Judgment No 29 of 2002 (SC) 6. Ezious Munkombwe and Others vs The People CAZ No 7, 8, 9 of 2017 7. Kaze mbe Zulu vs the People SCZ Judgment No 29 of 2 015 8. Mwape vs The People CAZ No 3 1 of2016 9. Jones vs Great Western (1930) 144 LT 194 J2 10. John Kunda vs The People Appeal 142/ 2018 Legislation referred to: The Penal Code, Chapter 87 of the Laws of Zambia, section 2 00. Introduction The appellant was arraigned before the High Court sitting at Kabwe for two counts of murder. In the first count, the particulars were that on an unknown date but between 30th June, 2016 and 2 nd July, 2016 at Chisamba in the Chisamba District he did murder Jessy Chileshe. In the second count, the particulars of offence were that on an unknown date but between 7 th July, 2016 and 8 th July, 2016 at Chisamba, he murdered Mumba Mulaliki. The matter proceeded to trial and the prosecution called a total of 12 witnesses. At the close of the trial, the trial Judge (C. Zulu, J.) acquitted the appellant on the 1s t count of having murdered Jessy Chileshe but convicted him on the second count of having murdered Mulaliki without extenuating circumstances. He was thereafter sentenced to death. The subject of this appeal is thus confined to the second count and we shall therefore not recast the evidence pertaining to the first count. Evidence in the High Court J3 The circumstances leading to the death of Mumba Mulaliki (hereinafter referred to as the deceased) make very sad reading. The evidence adduced by the prosecution is that on 7 th July, 2016 the deceased was consuming alcohol at Sakala Tavern in Kapiri village located in Chisamba District. He was in the company of Leonard Jere and Isaac Chibebeshe. Joseph Matongo who testified as PW4, a brother to the deceased, narrated that he joined the company of his brother and friends on that material day at around 19.00 hours. At around 20. 00 hours the deceased expressed his desire to go home to sleep and he left his colleagues still drinking. After a short time had elapsed Joseph and Isaac escorted the appellant to the deceased's home as that is where he was residing. When they arrived Joseph and his brother exchanged pleasantries and the duo (Joseph and Isaac) departed. That was the last time the deceased was seen alive. The following morning the deceased's mother, Esther Mulaliki, went to his house early in the morning approximately 6 a.m. to inform him about a funeral message she had received. On her arrival, she found his door open. She decided to sit and wait for him by a stool as she thought he had gone to buy relish and would soon return. After some time she was surprised to see some smoke coming through the window. Upon closer inspection of h er surroundings, she discovered to her shock and horror that her son was in a seated position and his body was burnt as well as some J4 other items. She had last seen her son alive the previous morning in the company of the appellant who was his friend. The body of the deceased was identified by his brother, Friday Mulaliki, who observed that he was burnt and had deep cuts in the head. The identification was from the nose and the toes. The headman of Kapiri village Webby Matange and an uncle to the deceased also identified the latter through the foot and arms. Isaac Chibebeshe gave testimony materially similar to Joseph Matongo. He confirmed that a group of them were at a bar drinking. The deceased left earlier than them and he and Joseph later escorted the appellant to the deceased's home at around 22.00 hours only to learn the following morning that the deceased had been murdered. Margaret Chola the 10th prosecution witness told the court that she had last seen the deceased in the company of the appellant the day before the fateful incident at 12 p.m. when he was packing some charcoal. In cross-examination, she stated that she is a wine merchant and the night before the deceased's death the appellant approached her and requested to take away some beer. The following morning the appellant returned around 6 a.m. and stayed there up until 8 a.m. Unbeknownst to her, Mumba was already dead. The Police Officer who investigated, charged and arrested the appellant was Abel Sangwapo (PW12). He found the body in a burnt state and in addition it had been axed three times. Defence JS The story the appellant told regarding what transpired on the day before the murder was no different from that of Isaac. He narrated that Alex, Isaac, the deceas ed a nd himself, together with other colleagues were drinking alcohol. The deceased d ecided to go and sleep around 2 0. 00 hours as he was very drunk. After the bar closed around 21.00 hours, they all went back home. According to him, they were all drunk. At some point they parted company at an abandoned house and he took his own route and went home . His attempts to sleep were futile and so he decided to go to a nearby tavern, unfortunately for him the vendor refused to sell him any beer. A lady however, gave him some beer and after drinking he went home . He r eturned to this same drinking spot at 6 a.m. and only left 10 p .m . and therea fter decided to pay his father , Mr. Yona a visit in Chipembi. He was subsequently arrested at Chipembi. Under cross-examination, he d enied living with the deceased. Regarding the re lationship h e had with Isaac and Joseph, h e said h e h a d known them for many years and used to relate well with them. He stated that there was no reason for them to falsely implicate him and that when they parted company, h e told them h e was going to see his father and the two went to sleep at their homes. He went to sleep at his home and later went to another bar to drink. J6 In re-examination, he admitted being with the deceased at his home and left his home to go to the tavern. Findings by the Trial Court After careful consideration of all the evidence, the learned trial Judge found that the deceased was brutally murdered around the night of 7 t h or in the early hours of 8 th July, 2016 at his house in Kapiri village. That the postmortem report attests to the gravity of injuries suffered. The Judge found that the case was anchored on circumstantial evidence as there were no eye witnesses to the crime. He relied on the cases of Taylor & Others vs R 1 , Savour Mukamo vs The People2 and the celebrated case of David Zulu vs The People3 where the principle that circumstantial evidence can be as good as direct evidence has been espoused. Further that where there is circumstantial evidence the court must be satisfied that the evidence is so overwhelming such that it attains such a degree of clarity to take it out of the realm of conjecture. In applying the law to the facts , the court below found that on the night of 7 th July , 2016 the deceased, appellant, Isaac, Joseph and some friends were drinking beer at Sakala Tavern, Kapiri village. The deceased retired to bed early at 20. 00 hours and left Joseph, Isaac and appellant drinking. Isaac and Joseph escorted the appellant to the deceased's house when they were done with their drinking escapade. J7 The trial Judge rejected the appellant's story that he went to lodge at his matrimonial house. He found that the deceased was murdered between 7 th and 8 th July, 2017 and the appellant continued his drinking spree between 6 a.m. and 8 a.m. and later vanished from the village. The court below found that the only inescapable inference that could be drawn is that the appellant killed the deceased. The opportunity was available to the appellant. The trial Judge discounted the conjecture that there was a possibility that the deceased was killed by a third party. In his well considered view this was on account of the fact that the appellant was last seen with the deceased, coupled with appellant's odd behavior of vanishing from the village after the death of the deceased tied with his denial of not lodging with the deceased on the material night drove the Judge to the inescapable conclusion that the only reasonable inference to be drawn is that it was the appellant who murdered the deceased. Grounds of appeal The appellant was convicted of murder and sentenced to death, hence this appeal. The appellant advanced the following grounds of appeal: "1. The learned trial Court misdirected itself in convicting the appellant on the basis of circumstantial evidence which is not sufficient enough to warrant only an inference of guilt. J8 2. The learned trial court misdirected itself in law and in fact when it did not consider the evidence of drinking as extenuating circumstances. " Appellant's Arguments The gist of the arguments in support of ground one is that the lower court misdirected itself in convicting the appellant based on circumstantial evidence which is not sufficient to warrant only an inference of guilt. According to Mr. Katazo, the finding by the trial Judge to the effect that the appellant was the last person to be seen with the deceased was not supported by the evidence on record. He pointed out that according to Margaret Chola (PWlO) the appellant bought beer from h er around 22:00 hours and later returned the next morning around 06:00 hours to continue his drinking. Mr. Katazo spiritedly argued that there was no evidence to show that arou nd 22:00 hours, the appellant was with the deceased. He contended that there was nothing to exclude the inference that the deceased could have been murdered by a third party while the appellant was away drinking beer. Counsel relied on the case of Dorothy Mutale and Another vs The People4 for the principle that where two or more inferences are possible, the court should adopt the one which is more favourable to an accused person. Counsel contended that the trial Court drew the wrong inference since the circumstantial evidence relied u pon did not take t h e case outside the realm of conjecture. J9 In relation to ground two, Mr. Katazo submitted that from the evidence of Oscar Kazunga (PW8) , Isaac Chibebeshe (PW9) and Margaret Chola (PWl0) the learned trial Judge should have considered the fact t h at the appellant had been drinking beer from 15:00 hours to 21:00 hours to be an extenuating circumstance. To support his argument Mr. Katazo sought refuge in the case of Jack Chanda and Another vs The People5 where it was held that a failed defence of provocation, evidence of witchcraft and evidence of drinking can amount to extenuating circumstances. We were accordingly urged to set aside the death penalty and impose an appropriate sentence. Respondent's Arguments In her heads of argument, the respondent's counsel Mrs. Chilufya Kabwela impugned the arguments made on behalf of the appellant. Her position as regards the first ground is that the trial Judge was on firm ground in convicting the appellant as there was strong circumstantial evidence connecting him to the offence. It was argued that the evidence does not suggest multiple inferences but only the one made by the court to the effect that the appellant killed the deceased. Mrs. Chilufya Kabwela stressed that there were key facts which the trial Judge considered before drawing the inference of guilt namely: 1. The appellant was the last person to be seen with the deceased; JlO 2. The appellant vanished from the village by the time the deceased was discovered dead; 3. He had the opportunity to kill the deceased; and 4. The deceased was murdered between the late hours of 7 th July, 2016 and the early hours of 8 th July, 2016. To buttress her argument, she quoted a passage from our holding in the case of Ezious Munkombwe and Others vs The People6 where we said: "When considering a case anchored on circumstantial evidence, the strands of evidence making up the case against the appellant must be looked at in their totality and not individuality. " Regarding the argument by the appellant to the effect that the trial Judge did not give reasons why it did not accept the inference that the deceased was killed by a third party Mrs. Chilufya Kabwela submitted that the trial Judge was on firm ground when it stated that this issue could not be an inference from the facts but rather a discountable conjecture. That this position was supported by the evidence of Joseph Matongo and Isaac Chibebeshe who testified that they left the appellant with the d eceased at the deceased's house a t around 2 1 :00 hours. Turning to the argument by the appellant alleging that the d eceased could have died from accidental fire, Mrs. Chilufya Kabwela forcefully argued that this was not sustainable considering that the evidence from the postmortem report disclosed that the d eceased was axed three time s on the hea d. Counsel accordingly b eseech ed the Jl 1 Court to dismiss this ground of appeal and uphold the conviction by the lower court. Moving to ground two, the learn ed Senior State Advocate submitted that this ground should not b e allowed on the basis that there was no evidence to show that the a ppellant was so drunk that he lost control of his s enses . We, in this regard , were r eferred to the cases of Kazembe Zulu vs The People7 and Mwape vs The People8 where it was held, inter alia, that the law presumes a person who commits an offence to have been of full mental capacity and responsible for the consequences of his actions until the con trary is proved . It was contended that the actions of the appellant after drinking on that night and in the morning that followed did not show that he had a d egree of m ental incompeten ce to entitle him to extenuation. We were accordingly urged to dismiss the appeal and uphold the conviction and senten ce. Verdict On the argument that the trial court misa pplied the doctrine of 'last s een ' as it was not supported by the evidence, our view is this: the la st seen theory espouses the principle that when an accused p erson was the last p erson to be seen with the d eceased, th e trial Judge will have to tak e into consideration the time la pse i.e the time the appellant was last seen with the d eceased and the time that the d eceased was subsequently found dead. The oth er issue to consider J12 1s the explanation that is tendered by an accused regarding what could have transpired after he was last seen in the company of the deceased. The explanation is one that would exonerate the accused as being the perpetrator as it offers a possibility of someone else being the perpetrator. The last seen theory may be a weak kind of evidence by itself and a conviction on it alone cannot be founded. However one has to look at other circumstances which, in this case, the trial judge looked at. He considered the time that the deceased was last seen with the appellant as well as the appellant's odd behavior of vanishing from the village after the deceased's death, and the explanation by the appellant. He found that the appellant had peddled lies when he said that he was not lodging with the deceased on the material night. On the totality of the evidence, he found the appellant's version of events unbelievable and came to one inescapable conclusion that it was the appellant that killed the deceased. The trial Judge was justified in relying on the last seen doctrine on account of the fact that the appellant furnished a wrong or unbelievable explanation which entitled the Judge to use other ·corroborative evidence available forming a chain of circumstances leading to the only inference of guilt of the appellant. We, therefore, see no basis upon which the findings of the trial Judge can be assailed as these were based on incriminating circumstances coupled with the last seen theory which implicated the appellant. J13 On the aspect that the deceased might have been killed by a third party, this was discounted by the trial judge when he stated at page Jl0 that: "I do not consider this to be an inference but rather a discountable conjecture". The court went on to draw a distinction between an inference and conjecture and cited the case of Jones vs Great Western9 • The court went on to articulate why it ruled out other possible inferences at page J 11 which were that the appellant was the last to be seen with the deceased, coupled with the appellant's odd behavior of vanishing from the village after the death of the deceased tied with the appellant's lies that he was not lodging with the deceased on the material night. It was the various strands of evidence that the trial Judge relied upon to base his conviction and not solely on the last seen theory. Regarding the argument of the cause of death being by an accidental fire we are of the considered view that this does not hold water. This is for the simple reason that the postmortem report clearly indicates, at its summary of significant findings , that the deceased was axed three times on the head and burnt to ashes and died as a result thereof. Clearly accidental fire on its own is ruled out as the only ca use of death because there is evidence that the deceased had been axed three times. Turning to the explanation by the appellant regarding his whereabouts following the death of the deceased, this explanation J14 was rejected by the trial Judge and rightly so. He found that it was an odd coincidence that the relationship between the deceased and the appellant was a cordial one and therefore the act of disappearing from the village after the deceased was found dead raised an inference that he was attempting to escape from criminal responsibility. The appellant gave a contradictory story regarding where he slept on the material night. He initially denied spending a night at the deceased's residence and claimed he had slept at his matrimonial home when he said that he had parted company with Isaac and Joseph at an abandoned house. In re-examination, h e admitted having b een with the deceased at his home and thereafter going to the tavern. In light of the contradictory story, the trial court was entitled to disbelieve the appellant. All in all the findings by the trial judge were supported by the circumstantial evidence. We find this ground of appeal to b e bereft of merit. It is accordingly dismissed. We now turn to consider the second ground of appeal in which the appellant is faulting the trial Judge for not considering the evidence of drinking as an extenuating circumstance. The parameters for when drinking can be considered to be an extenuating circumstance were articulated in the case of Kazembe Zulu vs the People 7 where the Supreme Court guided as follows: "It would be absolutely unconscionable to suggest that any person who merely states that he drunk beer must be presumed '• Jl5 to have been either drunk or adversely affected by it, and therefore, morally diminished in responsibility. There is no such presumption acceptable at la~. ~o the contrary, when a person commits an act constituting a cnminal off~nce, the law presumes that he was of full mental capacity and responsible for the consequences of such an act unless the contrary is proved. The onus of such proof lies on him or her to establish that he or she was of such a degree of mental incompetence that he or she suffered diminished culpability. " In our court in the case of John Kunda vs The Peop e l 10 h' t 1s issue was a lso considered after which we said: "It is insufficient to simply prove that one was drinking alcohol, even for many hours. An accused person must show that he or she was impaired by the alcohol and was of such a degree of mental incompetence that he or she suffered diminished culpability." We have looked at the circumstances of this case, in light of the foregoing authorities. There is evidence that the appellant had been drinking together with the deceased and some other people from 15.00 hours to 21.00 hours on the material day. However, even though there was this eviden ce, there was no evidence indicating that h e was impaired by the alcohol and was of such a degree of mental incompetence that he suffered diminished culpability. It is plain to us that the appellant has not met the threshold that h as been set in the aforecited cases of Kazembe Zulu 7 and John Kunda10. It, therefore, behoves us to state that notwithstanding the fact that the trial judge did not address the reasons why he did not J16 find drinking as an extenuating circumstance, he did consider this evidence and dismissed it based on the evidence before him. We could not agree more with the finding by the court below. This ground of appeal equally fails. We accordingly dismiss the appeal and uphold the conviction and the death penalty m eted out by the court below. DEPUTY JUDGE p . . . . . . . . . . . . . . . . ..... D. L. Y. Sic ing PEA COURT OF ..... GE ·········~ ~i~· ·········· ·· COURT OF APPEAL JUDGE