Mayila Kandolowe v The People [2022] ZMCA 199 (23 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: Appeal No. 116/2021 MAYILA KANDOLOWE / APPELLANT AND THE PEOPLE 3 AUG 2022 ! u GI S Ry 2 2sOO67, RESPONDENT CORAM: Mchenga DJP, Makungu and Muzenga JJA On 22nd March, 2022 and 23rd August, 2022. For the Appellant: Mrs. M. Makai, Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. S. Phiri, State Advocate, National Prosecution Authority JUDGMENT MUZENGA, JA delivered the Judgment of the Court. Cases referred to: 1. Joseph Mutaba Tobo v The People (1990 - 1992) ZR 140 (SC) 2. Kwezekani Chitalo v The People - SCZ Judgment No. 43 of 3. Khupe Kafunda v The People (2005) ZR 31 4. Jackson Kamanga and 4 Others v The People - SCZ Appeal No. 30, 31, 32, 34/2020 S. Robson Chizike v The People - CAZ Appeal No. 94 of 2020 J2 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. 3. Legal Aid (Amendment) Act No. 1 of 2021. 1.0 INTRODUCTION 1.1 The appellant was convicted of murder contrary to Section 200 of the Penal Code'. He was subsequently sentenced to death by the High Court (before Mrs. Justice S. Newa). 1.2 The particulars of offence alleged that the appellant on 8th March, 2016, at Kanyau Village in Shangombo District of Western Province of the Republic of Zambia, did murder Mupanda Mulabuka. 1.3 When the matter came up for hearing on 13th August, 2017, defence counsel Mr. Yambwa made an application pursuant to section 17 of the Criminal Procedure Code to have the appellant sent for medical examination to determine his state of mind at the time of the commission of the offence, and whether he was fit to take plea and to follow proceedings in court. The application was granted and a medical report was later issued. The medical report indicated inter- J3 a/ia that the appellant was fit to take a plea, stand trial and follow proceedings of the court. 2.0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was secured by the evidence of three prosecution witnesses. A summary of the evidence of PW1 Malibela Kandolowe, the elder sister to the deceased, was that on 6th March, 2016 a meeting took place where the appellant was charged money for assaulting the deceased with an axe handle. She stated that on 8th March, 2016 as she was on her way from the clinic, she noticed spots of blood on the road. She proceeded to the field where she found her mother with the appellant. 2.2(cid:9) She inquired from her if she had seen the spots of blood dotted all over the road. Her mother's response was to the effect that the appellant had murdered the deceased. The appellant was present when her mother accused him of killing the deceased and he was in a normal state. She told the trial court that the police later arrested the appellant. 2.3 In cross-examination, she told the trial court that the appellant was married with five children and would occasionally appear normal while J4 in other instances he would not. She stated that he once sought for medication for his demonic behaviour when he spent a week in the bush. She further stated that she did not know why the appellant killed the deceased and that the appellant did not settle the debt owed to the deceased. 2.4 A summary of the evidence of PW2 is that the appellant and the deceased had differences and that the appellant did attack and wound the deceased with an axe. When the deceased recovered, he sued the appellant and the matter was settled ex-curia and the appellant was fined K750.00. The appellant then indicated that he did not have the money and asked if he could pay the deceased as soon as he sold his cow. PW2 told the trial court that on 8th March, 2016 he followed PW1 at the clinic. On his way, he noticed a pool of blood on the road. He also identified the appellant's footprints. 2.5(cid:9) PW2 later saw the body of the deceased lying on a path, with a cut at the back near the neck. He went to report to the police and by the time the police arrived at the village, the deceased's body was in a bad state and they buried as soon as the police finished their examination. J5 2.6 In cross-examination, he stated that he was the appellant's brother, and the deceased was their cousin. He stated that when the accused was young he fell sick and when he recovered, had some abnormalities and appeared to have mental disabilities. 2.7 Chushi Christopher, the Arresting Officer testified as PW3. He told the trial court that on 9th March, 2016 at about 09:00 hours, he received a report from a person who did not want to be identified that a person had been murdered at Katwi Village. The informer told him that the murder weapon was a machet and that the deceased had sustained two cuts on the neck. He told the trial court that the informer also told him that the suspect was the appellant. Armed with the information, PW3 followed up on the report and he found the deceased's body lying near a sorghum field in the village. He inspected it and found that the head had been completely chopped off, and was facing upward. Further, he found the upper part of the body torn and eaten up. When he turned the body, he saw two cuts on the back near the shoulder blade. He searched for the head which he found a few metres from the trunk, it had no flesh only the skull bones. J6 2.8 It was his further testimony that the local people told him that the area is infested with foxes which could have mutilated the body parts. He stated that the body was in a semi-decomposed state. He then left in search of the appellant whom he apprehended in his sorghum field behind his house. The appellant led PW3 to where the murder weapon was and he recovered a white work suit which was stained with blood. 2.9 PW3 also told the trial court that due to the bad state of the body, and the distance to Shangombo Hospital for mortuary services, he allowed the family members to bury the body however the grave was marked for exhumation and post-mortem purposes. 2.11) He told the trial court that he recorded a warn and caution statement with the assistance of other police officers and the appellant admitted to having murdered the deceased, stating that the deceased was bewitching him and wanted to kill him. PW3 went on to state that the appellant informed him that the other reason he killed the deceased was to avoid paying the K750.00 he was fined for having assaulted him. J7 2.11 On 18th March, 2016 PW3 made up his mind to charge and arrest the appellant for murder. He identified the post-mortem report, the machet and the work suit and produced them in evidence. 2.12 Under cross-examination, PW3 told the trial court that he was informed that the appellant appeared to have a mental disability as at times he would appear to be well and at certain times his behaviour would be abnormal. 2.13 This marked the end of the prosecution case. The appellant was found with a case to answer and placed on his defence. 3.0 THE DEFENCE 3.1 In his defence, the appellant elected to remain silent and he called no witnesses. 4.0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 The trial court considered the evidence and written submissions presented before it by both parties. The trial court found that the deceased died on 8th March, 2016 after he sustained chop wounds on the head and his head was decapitated. The trial court also found that it was not in dispute that the deceased and the appellant had a history of misunderstandings. J8 4.2 The trial court stated that in order for the appellant to be found guilty of murder, the state had to prove beyond all reasonable doubt that he killed the deceased with malice aforethought. The trial court considered the provisions of Sections 12 and 12A of the Penal Code which provide for the defence of insanity and also considered the medical report which was produced after the appellant was taken to the hospital for examination. The medical report indicated that the appellant had developed a severe depression state following threats on his life and a strong belief in witchcraft. 4.3 The court reasoned that the fact that the appellant was found hiding in the sorghum fields and went to great lengths to wash the worksuit that had blood stains showed that, the appellant knew what he was doing wrong. 4.4 The trial court found that the evidence on record revealed that, the appellant killed the deceased because he had been threatening his life and, because he wanted to avoid paying the money that he was fined for assaulting the deceased. That the prosecution had proved their case beyond all reasonable doubt. Thus he was convicted and sentenced him to death. J9 5.0 GROUNDS OF APPEAL 5.1 Disconsolate with the conviction and sentence imposed by the High Court, the appellant filed one ground of appeal as follows: The learned trial court erred in law and fact in convicting the appellant of murder in the light of overwhelming evidence showing that the appellant was suffering from a disease of mind at the time he committed the offence. 6.0 APPELLANT'S ARGUMENTS 6.1 Learned Counsel for the appellant filed heads of argument in support of the sole ground of appeal. It was submitted that there is enough evidence from the prosecution witnesses to the effect that the appellant suffered from a mental condition which was corroborated by the medical report. That the medical report indicates that the appellant had a dysphoric mood which was coupled with a strong belief in witchcraft at the time he committed the offence. We were referred to the case of Joseph Mutaba Tobo v the People' where it was held that: "In the case of Mushanga v The People this Court had the opportunity of doctors evidence in relation to the defence of insanity. We said in that case: "On an issue of mental disability, the medical evidence presented to the trial court may or may not be conclusive. However the Court is bound to J10 consider the medical evidence together with all other relevant evidence. Its quality and weight will be assessed in light of all the other facts and circumstances of the case. But, as the cases which we have already mentioned indicate, medical evidence will usually be considered to be more reliable than the assertions by or on behalf of an accused. In this regard we are satisfied that the submissions, to the effect that the doctor's opinion in this case should be overturned, hold no attraction for us." In the instant appeal the finding that the opinion of the doctor was vacant was not supported by the evidence, particularly noting that the prosecution did not challenge his opinion. We agree with the submissions on behalf of the appellant that on the balance of probabilities the defence had proved that the appellant was suffering from a disease of the mind at the time of the commission of the offence. We are satisfied on the other hand that, even if the confession was excluded, the evidence adequately connected the appellant to the commission of the offence. 6.2 Counsel contended that the defence laid down a proper foundation of the defence of insanity coupled with the medical report showing that the appellant at the time he committed the offence was suffering from a disease of the mind. 6.3 In summation, it was submitted that the trial judge should have found that the appellant was suffering from a disease of the mind at the time he committed the offence, made a finding of not guilty by reason of ill insanity and ordered him to be detained during the president's pleasure. 7.0 RESPONDENT'S ARGUMENT 7.1 In response, the state argued that in order for the appellant to succeed with the plea of insanity as his defence, it must be shown through evidence, on the balance of probabilities that the appellant did not understand what he was doing, or that he did not know that he ought not to do the act, which in this case is hacking the deceased with a machet to death. 7.2 According to counsel, the appellant did not raise the defence of insanity during the trial and therefore the said defence cannot be availed to him. Counsel contended that pleading of the defence of insanity is a pre-condition to proving it which is a requirement for the defence to succeed. To this end, we were referred to the case of Kwezekani Chitalo v The People where it was held that: "Insanity is a defence which must be pleaded and proved on a balance of probabilities by the defence. It is our view that the said defence was not pleaded by the appellant during his trial and if it was pleaded the same was not established hence there being no evidence of insanity. In light of the foregoing, our answer to the first question in this appeal is that there was no evidence of insanity in this case." J12 7.3 Counsel contended that where insanity is pleaded, evidence proving it may be adduced through the witnesses' testimonies or medical report. It was submitted that the witnesses' evidence on record shows that even if the appellant would behave abnormally at times, at the time he committed the offence, he appeared to be normal. It was contended that the fact that the appellant appeared normal when the incident was being narrated in his presence, does not, in itself, mean that he was not normal but that he was satisfied with his actions of killing the deceased after several attempts. 7.4(cid:9) According to counsel, the dysphoric mood the appellant was diagnosed with cannot be said to be a disease of the mind within the meaning of Section 12 of the Penal Code. It was submitted that for the defence of insanity to succeed, it must satisfy the M'Naghten rules which state that for the defence of insanity to succeed, it must be proved that the accused was, at the time of committing the act, labouring under the defect of reason from the disease of the mind not to know the nature and quality of the act he was doing or if he did know it, that he did not know that what he was doing was wrong. That the mood J13 disorder, as opposed to a mental disorder, fails the test provided in the M'Naghten rules. 7.5(cid:9) In the alternative, counsel argued that should it be considered that the dysphoric mood is a disease of the mind, the same should be considered as a disease that cannot produce the kind of act, which in the present case, is the hacking of the deceased with an axe to death. 7.6 In summation, counsel submitted that the appellant failed to prove on a balance of probabilities that he was insane at the time of the commission of the offence. We were thus urged to uphold the conviction and sentence. 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Mrs. Makai and learned counsel for the respondent, Mr. Phiri placed full reliance on their respective arguments. We are grateful for their submissions. 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 of the trial court. I J14 9.2 The issue in this appeal is whether the appellant had successfully raised the defence of insanity. 9.3 When the appellant appeared for trial in the court below, learned counsel for the appellant applied for an order to have him examined as to his fitness to stand trial and also his possible state of mind at the time that the offence was committed. We must state that this was the correct procedure where an accused person appears to have a disability or any condition that may make it difficult for them to follow proceedings. The trial court must immediately inquire into the issue as soon as it arises (See Sections 17 and 160 of the Criminal Procedure Code). 9.4 The application was granted and a report was sent back to the court which certified the appellant fit to stand trial. It was also the Doctor's opinion that the appellant had a dysphoric mood coupled with strong belief in witchcraft at the time of commission of the offence. 9.5 It is trite that the onus of proving the defence of insanity lies on an accused and the standard is on the balance of probabilities. We wish to make it clear that even in instances where a medical report finds that an accused was labouring under a disease of the mind at the time J15 of commission of the offence, it is up to the accused to raise the defence at trial or choose to defend the case on its merits (See the case of Khupe Kafunda v The People 3). This defence can thus not be forced on an accused person. 9.6 The Supreme Court in the case of Kwezekani Chitalo supra stated as follows at Jil to J12: "We found no evidence establishing that the appellant was insane at any material time and we disagree with Counsel's argument on this point. It is our view that the receipts showing that the appellant receives treatment from Chainama Hills Hospital do not constitute conclusive evidence that the appellant is insane. What may have constituted evidence of insanity include the report of medical examination to the effect that the appellant was insane and testimonies of relatives or members of the community within which the appellant lived showing that the appellant's behaviour was like that of an insane person among others." 9.7 It is clear from the evidence of the two prosecution witnesses that the appellant, on days prior to the day of the murder, exhibited traits or behaviour of a person who is of unsound mind. However, none of the witnesses stated that the appellant had, at the time of committing the offence or on the day when the offence was committed, exhibited any abnormal behaviour. 9.8 Learned counsel for the appellant argued that there was sufficient evidence from the prosecution witnesses to support the assertion that the appellant was of unsound mind and also the medical evidence to the effect that he suffered a dysphoric state. Reliance was placed on the case of Joseph Mutaba Tobo supra. 9.9 In the Joseph Mutaba Tobo case, the appellant opted to remain silent and called the medical doctor who gave evidence in support of his defence. This is what transpired as can be seen at page 141: "The appellant did not himself give evidence on oath in his defence, a course he was entitled to take. He, however, called a medical doctor in his defence. The doctor's evidence was briefly that he was a consultant psychiatrist at Chainama Hills Hospital. On 6th November, 1981 he examined the appellant as ordered by Court. The doctor explained that at the time of admission the appellant had a flattening effect on him. His look was vacant and he was not sure about the dates, months and years. According to the doctor, the appellant complained of hearing some voices which he did experience while in Kasama in 1979. According to the doctor, one of the appellant's brothers suffered from mental illness. The doctor also explained that, apart from him, other doctors and clinical psychiatrists conducted some speed tests and that at the time the appellant was found to smile or giggle on his own without cause. The doctor further stated that a Mr. Mulenga also found the flat effect and retardation of mental effect on the appellant who was taking too long to think." I' I. J17 9.10 In casu, the appellant too, opted to remain silent which he was perfectly entitled to do. He, however, did not call medical Evidence to support his defence. We have already stated that the onus lies on the accused person to establish the defence of insanity. We a so already noted that there was no evidence of strange behaviour cr abnormal conduct on the part of the appellant at the time of commission of the ofence, 9.11 It is probably time that counsel for accused persons shou d, In cases like this one and other deserving cases, consider calling witn esses in aid of their respective defences. We note the challenges that the Legal Aid Board (LAB) may face unlike their sister institutici (National Prosecution Authority) which has a witness fund. It is prbably time to also seek to establish a similar fund for the LAB in order to balance the scales oi justice in relation to poor people. 9.12 :n the meantime, we are alive to the continuation of the Legal Aid iund ir, the Legal Aid (Amendment) ACt3. The Director could apply the moneys in the fund under Section 41(a) to cover expenses for witnesses to give evidence in favour of a leg 311y aided pe -son. This will ensure equal access to justice for all, including the J18 poor and vulnerable members of our society, who have no means to cover witness expenses. 9.13 In the circumstances, we cannot fault the trial court in finding that the behaviour of the appellant was consistent with a person who was normal. This was on account that after killing the deceased, he attempted to wash off blood from the coat that he was wearing and hid both the murder weapon and the coat. This is certainly not conduct of a person suffering from a disease of the mind. 9.14 We have noted that the trial court also relied on the confession recounted by PW3 that he killed the deceased and the reason for doing so. Nevertheless, the trial court did not inquire from the accused person, at the time PW3 was giving evidence, if the confession was voluntary. This was a serious misdirection. The Supreme Court has guided on several occasions and we have reiterated the said guidance on a number of occasions to trial courts. The guidance is that: whenever an officer is giving confession evidence, the trial court should inquire from the accused person if it was voluntary. This is irrespective of whether or not the accused person is represented by counsel (See J19 the cases of Jackson Kamanga and 4 Others v The People and Robson Chizike v The People.5 9.15 We thus expunge the confession statement from the record. Notwithstanding the expunged confession evidence, there is sufficient circumstantial evidence on the record. 10.0 CONCLUSION 10.1 In the light of the foregoing, we dismiss the appeal for want of merit. The conviction and sentence is upheld. • --\- y•1 C. F. R. MCHENGA DEPUTY JUDGE PRESIDENT C. K. MAKUNGU COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE