Morgan Mwelwa v the People (Appeal No. 112/2021) [2022] ZMCA 192 (19 May 2022)

,, IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 112/2021 BETWEEN: MORGAN MWELW . AND THE PEOPLE OF ZAMBIA ·Of APPE_.,( , ~ '(,\t>,~ 1011 11111~/-l RE I • BOX 500 APPELLANT ·' _.,RESPONDENT CORAM: Mchenga DJP, Makungu ~nd Muzenga ~A On 22"d March, 2022 and_}•!Jth May, 2022 / For the Appellant: For the Respondent: ; Miss E. I. Banda, Legal Aid Counsel- Legal Aid Board Ms. F. !fyirenda Tembo, State Advo,c:ate - National Prosecution Authority . ' / , JUDGMENT Makungu,,JA delivered the Judgment of the Court. / Cases . Referred to: / ' / 1. John Lubozha v The People SZC Appeal No. 485 of 2013 (unreported} 2. Abedinegal Kapesh and Best Kanyakula v The People SCZ No. 35 of2017 3. David Zulu Vs. The People (1_977) ZR 151 4. Yokoniya Mwale v The People SCZApp No. 285 of2014 Jl 5. flung a Kabala and John Mase Ju v The People ( 1981) ZR 1 02 6. Ezious Munkombwe and Others v The People CAZ Appeal No. 7,8,9of2017 Legislation Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia ,, 1.0 INTRODUCTION 1. 1 On 31st March, 2021, the appellant was coavicted of one count / of murder contrary to Section 200 oj"the Penal Code 1 by K. Lim bani J. and sentenced to deatli. This appeal is against the sentence only. J / 1.2 The particulars of thf 'offence were that the appellant, on 2 nd September 2020, at Serenje in the Serenje District of Central Province of the Republic of Zambia, did murder Elita Musonda (hereafter referred to as the deceased). / / / 2.0 EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was premised on the evidence of five witnesses, the first being Dinaless Mambwe (PWl) who recounted that sometime in June 2020, the appellant, who is J2 her brother, requested her to look for K150 or K200 to be used to hire someone to kill their mother, now deceased. Nevertheless, she refused. She then brought it to the Chiefs attention, who rebuked the appellant. 2.2 PWl testified further that two months later, she learnt that the / deceased was burnt in her house. She then reported to the Community Crime Prevention Unit (CCPU)J who went and ,; apprehended the appellant at the Chiefs palace and handed / / him over to the Police. When the ~olf~e asked the appellant if he was the one who started .the fire, he admitted and also demonstrated at the scene. how he torched the deceased's two / roomed thatched house. / 2.3 Later, she took t9e'deceased to the hospital, where she died five days later from the burns that she had sustained. 2.4 In cross~examination, PWl stated that although she did not see / the/appellant burn the deceased's house, she was convinced / that he was responsible for the crime. The reason she gave for her belief was that when he asked her to find money to have the deceased killed, he told her that he wanted her dead as she had J3 been killing his children and he admitted to the Police that he was the one responsible for burning the house. 2.5 PW2 was Maurine Kunda, also the appellant's sister. Her testimony was that on 27th August, 2020 as she was in her house, she heard the deceased, shouting. She rushed f~ the deceased's house and found that it was burning while she was inside. She eventually escaped the burning hpiise with bums. ·' 2.6 According to PW2, it was the appellant who torched the house / because he had indicated having s-qc6 plans on suspicion that the deceased had killed his children. That he had in fact stated that he would either burn the deceased or axe her. 2.7 PW2 stated that the Chief had also been made aware of the / appellant's inte:gti~ns, and he was summoned in this regard. She reiterated this evidence in cross-examination. 2.8 Regina Musonda was PW3, the deceased's granddaughter. Her / tes,timony was similar to that of PW 1 in relation to how she / witnessed the deceased burning in her house and observed wounds on her body after she eventually escaped the inferno. She also testified as to the appellant's intention to kill the J4 deceased on suspicion of being the witch who caused the death of his children . . 2.9 Chunga Joseph, a member of the CCPU, testified as PW5. He recounted that PW 1 had instructed him to apprehend the appellant on suspicion that he had burnt the deceased'.s house. r He acted as instructed in the company of other members of the CCPU and when he questioned the appellant oh the allegation, / the appellant denied being responsible fol' the criminal act. He / / was then taken to the Chief, where' members of his family, ·' including PW 1 and PW3, repeated that he had previously expressed intentions of killing the deceased. The appellant initially denied the al~ygations but when the Police were involved / and they questi~nied him, he admitted having set fire to the deceased's house, and demonstrated in the presence of the . I Police how he did it . . I 2.10 PW:5 was the investigating officer, who confirmed having /recorded a warn and caution statement from the appellant in the presence of his nephew, wherein the appellant confessed to setting fire to the deceased's house. The record shows that at this point, defence counsel objected to the admission of the JS confession on the premise that it was not given freely and . voluntarily, and the prosecution stated that they would not rely on the confession statement. The record shows further that following an objection from defence counsel, the prosecution desisted from soliciting evidence relating to how the appellant / ' allegedly demonstrated how he burnt the subje<;:t house, as such evidence emanated from the alleged conf~s~ion, which was not to be relied on. 2.11 PW5 recounted having come acrqss a photographic album / showing the burnt house and the deceased's injuries, as well as ; a post-mortem report, which were admitted into evidence. 2.12 In cross-examination:, PW5 / re-iterated his evidence 1n / examination in ,,chief, save to add that the appellant was suspected by•his relatives to have killed the deceased . . / / / 3.0 THE DEFENCE 3.1 1n his defence, the appellant (DWI) gave sworn evidence and did not call any witness. He testified that on the material day, he went to do some work at the Chiefs palace when he was apprehended by CCPU members on allegations by his sisters J6 that he had burnt his mother alive, which he denied. That the police were then called and they beat him up, and that is why he admitted to the allegations. 3.1 When asked to respond to the testimonies by his sisters regarding his intentions to kill the deceased as he believed she I ., was a witch, DWl stated that they concocted the story because they were not happy with his wife and had wanted him to marry ,/' another woman and as such, he was not in good terms with his / / sisters but he related well with his mother. ✓ . 3.2 In cross examination, he stated. that he was beaten by the police / and not CCPU members. , That he told his mother about his sisters' suggestion to divorce his wife but she advised him / / against it. / 4.0 Decision of the Trial Court 4. 1 The learned trial Judge considered the evidence led by both the / / prosecution and defence and made the following findings: / i) Based on the evidence of prosecution witnesses 1 to 3, the appellant had the intention to kill the deceased due to his suspicion that she was a witch and had killed his children. These intentions had been reported to the Chief. J7 ii) The appellant's assertion that his sisters implicated him because of their hatred for his wife was an afterthought meant to cover up his evil intentions. iii) The evidence of PW4 relating to the appellant's confession to the police was clear- that he confessed to setting the ~ house ablaze. iv) It is strange that when his mother wa,s set ablaze, the appellant was nowhere to be seen and, according to PWl, he had fled to the Chiefs palace. ,Although flight is not an / indication of guilt, when it i,s considered together with other pieces of evidence in this case it is possible to secure ✓ a conviction on this /basis. The judge looked at the ., appellant's suspici0n that his mother was a witch, the alleged confessi0n and "the strange but odd coincidences" and found !h,~ the appellant fled to escape his evil action of settin_g his mother ablaze. / v) The trial court ruled out the possibility of the deceased . I / having accidentally set her house on fire as PW2 and PW3 stated that the deceased did not go into her house with a brazier. vi) That the circumstantial evidence is strong enough to draw an inference of guilt. t 4.2 On the basis of the foregoing findings, the trial Court concluded that the prosecution had proved its case beyond all reasonable doubt and proceeded to convict the appellant as charged. The court found no extenuating circumstances. 5.0 THE APPEAL 5.1 The appellant has advanced one ground of appeaj. as follows: The learned trial court e"ed in law and fact by sentencing the appellant to death when there were / extenuating circumstances in the matter. / ,' 6.0 APPELLANT'S HEADS OF ARGUMENT 6.1 Miss Banda relied on written heads of argument filed into Court / on 11 th March, 2022 submitting that according to section 201(2) of the. Penal Code1, extenuating circumstances can reduce moral culpability to warrant a custodial sentence, , / rather than death. Miss Banda disagreed with the trial court's / / position that there were no extenuating circumstances. She submitted that a belief in witchcraft could amount to extenuation but such belief must be evidence-based, established as a matter of fact and must reach the threshold of J9 provocation. John Lubozha v The People 1 and Abedinegal Kapesh and Best Kanyakula v The People2 were cited in this regard. 6.2 Counsel submitted further that although the appellant did not raise belief in witchcraft and totally denied having killed his , mother, and since the lower Court believed the evidence of the prosecution witnesses that the appellant killed'his mother, this / Court must also accept that he did so because he believed that / she had killed his children througq,w:itchcraft. ' / 6.3 On this basis, it was subm.itted that the evidence of the prosecution witnesses to t;he effect that the appellant killed the / deceased due to his belief in witchcraft shows that the , appellant went ,bfyond mere belief and suspicion and took steps by asking his sister for money to hire someone to kill their . I mother/. This shows that he was worried about her continued ex,istence as he believed she was a witch. Thus, the threshold / of provocation had been met. Counsel submitted further that, since the trial Court believed the evidence of PW4 that the appellant confessed to having killed the deceased, the Court no should have accepted the reason why he killed the deceased and found that there existed extenuating circumstances. 7.0 RESPONDENT'S HEADS OF ARGUMENT 7.1 In response to the appeal, the respondent caused to be filed heads of argument dated 16th March, 2022 submitting that for the belief in witchcraft to be relied upon as ,ful extenuating / circumstance, there must be evidence supporting that belief, which must be established as a matter of fact. That in the 11?-atter in casu, there is no way of telling that the appellant believed in witchcraft as. 'he distanced himself from the , allegation. She reitera{ed Miss Banda's submission that evidence of belief. An witchcraft must reach the threshold of provocation µ/it is to serve as an extenuating factor to an accused JSerson facing the charge of murder. The case of / Abedinagal Kapesh and Another v The People2 was cited to / ,this effect. 7.2 Ms. Tembo drew our attention to the case of John Lubozha 1 where the Supreme Court guided that evidence to prove a belief in witchcraft could include; 'a visit to a witchdoctor, a visit to a Jll witch finder or advice from either of the two, a visit to or advice from a traditional healer or consultation about witchcraft or some other reasonably suspicious event or admission believed to have been uttered by the deceased in the murder case; or indeed a demonstration of strong belief in a local ritual ordinarily I' ,, associated with witchcraft.' On this basis, the state· submitted ., that there is no evidence that can clearly est~blish the basis of the appellant's belief that his mother was.a witch. / 8.0 OUR DECISION / ./ 8.1 Having considered the jµdgment appealed against, , the arguments in support and in opposition to the appeal, we are of the view that other . .than the question raised by the appellant of / the existence 9f~xtenuation to warrant the appellant's exclusion from the death penalty and even though this appeal is not / against conviction, we deem it prudent to examine the cogency / ,' of the circumstantial evidence that the lower Court relied on when it arrived at an inference of guilt. Seeing as the question of cogency of circumstantial evidence goes to the propriety of the conviction, we will determine it first. Jl2 8.2 Principles relating to the nature and application of circumstantial evidence have long been established and emphasized in this jurisdiction. One of the celebrated cases is David Zulu v The People3 in which the Supreme Court gave sound guidance as to what circumstances would w~ant a , conviction on the basis of circumstantial evidence as follows; "The judge must be satisfied that the /circumstantial / evidence has taken the case out_,, of the realm of conjecture so that it attains sue!? ~ degree of cogency · which can permit only an inference of guilt." ; 8.3 In light of the foregoing, th~,question we ought to ask ourselves / is; what facts led the lower court to infer that indeed the / appellant caused Jhe death of the deceased by setting her house on fire? This question may best be answered in reference to what . I appears,to be a summary of the evidence that the trial Court / reli~d on, at page J12, where the Judge stated that: / "In this case, the appellant's suspicions as narrated by PW1, PW2 and PW3, the alleged confession and the strange but odd coincidences augment his flight, such that he fled to escape his evil action of setting his Jl3 mother on fl.re due to his alleged belief that she was a witch who killed his children." 8.4 As regards the appellant's suspicion that the deceased had bewitched his children, the testimonies of PW 1, PW2 and PW3 r were very consistent. However, because of the category of witnesses within which they fall by virtue of being relatives of the ',,,~ deceased, the trial Judge ought to have applied caution when / , analyzing their evidence in order to elimtnate the danger of false implication. We are guided by Yokopiya v The People4 ,, . / 8.5 However, that omission did n,ot prejudice the interests of the appellant in any materia1 way. We accordingly accept the / position of the lower /c:ourt that the evidence of PW 1, PW2 and / PW3 relating to,,the appellant's suspicion of the deceased as a / , witch does amount to circumstantial evidence, which goes to ./ establish his motive. / 8.6 We do not find fault 1n the lower Court's rejection of the / / appellant's contention that the witnesses falsely implicated him because they did not like his wife and they wanted him to marry another woman as an afterthought as they were not cross J14 examined about it and this was only brought up for the first time in his defence. 8.7 The learned trial Judge further made reference to "odd but strange coincidences" like the evidence by PWl that the app7llant ran away on the day the deceased's house was burnt.,,/However, PW4, who apprehended him did not adduce su~~l'evidence. He instead stated that he found the appellant/working in a field, / which was consistent with the appellant's evidence that he had / been working in a field when PW4 came to apprehend him. One /' would wonder how PWl, who,.\\>'as not part of the search team, concluded that the appellant had run away, perhaps only because he was not a(his home at the material time. / 8.8 In our view, th~,frial Court was too quick to accept this element of PW l's evidence without weighing it against the evidence of the other witnesses who spoke to the whereabouts of the appellant / on the material date. As such, we are of the considered view / that had the trial Court made a proper evaluation of PW l's evidence in this regard, he would not have arrived at that conclusion. We therefore find that the conclusion that the appellant had run away the morning after the deceased's house was set ablaze was a finding which, on a proper view of the evidence, no trial Court acting correctly can reasonably make. We accordingly set aside this finding. 8. 9 In as much as we appreciate that odd coincidences, if I / unexplained may be supporting evidence as espoused in Ilunga ,• Kabala and John Masefu v The People5, o~r'~wn analysis is that it appears odd that the appellant told PW2 that he would / ~'' ' either axe the deceased or bum her,,ru1d her house was set on _,.:/ fire a couple of months thereafter. This, in our view, is an odd coincidence that we are able to decipher from the evidence on record, even though th~ trial Court did not point it out. / / 8.10 We stated in Ezi9rfs Munkombwe and Others v The People6 that; " ... when .considering a case anchored on circumstantial eviden6e, the strands of evidence making up the case / against the appellants must be looked at in their totality /and not individually." Jl6 8.11 In casu, the totality of circumstantial evidence that remains for our consideration is that the appellant threatened to burn or axe the deceased about two months before the deceased got burnt. 8.12 This evidence, when considered in relation to the other pieces of circumstantial evidence is not in our view so overwhelming and r cogent so as to warrant no other inference other than that the appellant was guilty. The two months period b,etween the threat and the burning cannot lend to an inference that only the / / appellant could have set the house op fire. On this premise, we find that the circumstantial evidence relied on by the trial Court did not meet the threshold as,'established by various precedents, ,I / some of which we have alluded to. We therefore find that the / conviction was n9t/properly arrived at and we hereby quash it and set the appellant at liberty. ,/ / 9.0 CONCLUSION 9.1 All being said, the sole ground of appeal is otiose, as there can be no consideration of sentence in the absence of a conviction. r C. F. R. Mcheng DEPUTY JUDGE PRESI / ' / C. K. Makungu COURT OF APPEAL JUDGE ... :: .... ~ ........ . ! K. Muzenga / COURT OF APPEAL JUDGE 118