Mwewa Murono v The People (SCZ JUDGMENT NO. 23 OF 2004) [2004] ZMSC 153 (3 November 2004)

SCZ JUDGMENT NO. 23 OF 2004 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL NO. 54/2004 (Criminal Jurisdiction) BETWEEN: MWEWA MURONO Appellant And THE PEOPLE Respondent Coram: Sakala, C. J., Chitengi, JS, and Munthali, Ag. JS, on 1st June 2004 and 3rct November 2004. For the Appellant: Captain F. B. Nanguzgambo, Director of For the Respondent: Mr. C. F. R. Mchenga, Chief State Advocate. Legal Aid. JUDGMENT Munthali, Ag. JS, delivered the judgment of the court i I ' ,,I ''I II I, ,I /i ji I ,, ' ,: !, i I CASES REFERRED TO: (1) ABBOTT V. REGINA (1955) 39 CR APP. R 141 (2) PRACTICE NOTE [1962] 1 ALL E. R 448 (3) REGINA V. GALBRAITH (1981) 1 W. L. R. 1039 (4) HAHUTI V. THE PEOPLE (1974)Z. R. 154 (5) EDWARD SINYAMA V. THE PEOPLE (1993/1994) Z. R 16 LEGISLATION REFERRED TO 1. CRIMINAL PROCEDURE CODE CAP 88 SS. 206 AND 291. The appellant MWEWA MURONO was convicted of murder ' contrary- to section 200 of the Penal Code,Cap 87. He was sentenced to suffer the supreme penalty of death. The particulars of offence alleged that, the appellant, on 19h July, 2003 at Mansa, in the Mansa District of the Luapula Province of the Republic of Zambia, murdered FRANCIS MWEWA. The prosecution case was anchored on the evidence of PW 1, PW2, PW3 and PW4. PWI testified that on 18th July 2003 she was asleep in the house of PW2 in Donald village, when. she heard a bang on the door. The time was around 01.00 hours. The two of them opened the door and found FRANCIS MWEWA ( deceased) lying in the veranda crying. The deceased told them · that his brother, MWEWA MURQNO, killed him. She observed that FRANCIS MWEWA had three wounds, 2 in the stomach and one in the armpit and that the blood had dried. FRANCIS MWEWA was taken to Mansa Hospital where he died on 19th July - 2 - 0 2003 at 16.30 hours. PW2 gave more or less the same evidence. She went to bed together with PW1 on the night of 18=h July 2003. At around 01. 00 hours she heard a bang on the door. She went out and found FRANCIS MWEWA on the veranda who told him that the appellant had stabbed him with a spear, She observed that FRANCIS MWEWA had wounds on the head, stomach, armpit and leg. Later FRANCIS . MWEWA was taken to Mansa hospital where he died on 19th July 2003 at 16.30 hours. PW3, a neighbour of PW1' and PW2 in Donald village, testified that on the night of 18th July 2003 he was awakened by some no1Se. He heard the voice of FRANCIS MWEWA as he was heading for PW2's house. He found him by the door side of PW2's house. FRANCIS MWEWA told him that he was injured by . . MWEWA MURONO his brother who used a spear. He observed wounds on the head, stomach and near the armpit. FRANCIS MWEWA was later taken to hospital where he died on 19th July, 2003 at 16.00 hours. PW6 narra~ed that on 19th July 2003 he was given a docket of unlawful wounding to investigate in which FRANCIS MWEWA was alleged to have been wounded - 3 - by MWEWA· MURONO, the appellant. On 21 st July 2003 he received a report that FRANCIS MWEWA had died. He arranged for a postmortem report. He interviewed the appellant and recorded a warn and caution statement. In the statement, the appellant made a confession explaining how he killed the deceased. On arrest the appellant admitted the charge. The two statements were not produced. At the close of the case for the prosecution the learned trial Judge found that a prima facie case had been made out and put the appell::mt on his defence. The appellant gave evidence on oath. He narrated that at midnight on 19th July 2003 the deceased, FRANCIS MWEWA, went to his house. He started insulting the womanhood of his· mother and his own manhood. The deceased forced the door open while holding a hoe and threatened to kill him. As the deceased lifted the hoe so that he could hit him, the appellant stabbed him with a spear. He did this in self-defence because the appellant feared the deceased would kill him. It was on this evidence that the appellant was convicted. The appellant has appealed against both conviction and - 4 - sentence. Captain Nanguzgambo the learned Director of Legal· Aid advanced one ground of appeal, namely, that the learned trial Judge erred• in law by rejecting the defence of self-defence. He submitted that the deceased went to the appellant's home where he threatened to kill him with a hoe. He also argued that since the court rejected the appellant's evidence there is no other evidence to rely on to support the convict{on. On sentence Captain Nanguzgambo submitted that the , court should consider imposing any other sentence apart from the death sentence since there were extenuating circumstances. Mr. Mchenga, learned Chief State Advocate did not support the conviction. He submitted that the court having rejected the evidence of the appellant, there was no other evidence to support the conviction. He further submitted that at the close of the case · for the prosecution there was only the evidence of PW2 who narrated what he was told by the deceased long after the incident'. We have .considered the submissions made by both learned counsel for the appellant and the respondent. - 5 - The issue at the centre of this appeal is whether the learned trial Judge properly found the appellant with a case to answer. At common law, a number of cases have dealt with the proper approach to adopt in considering the issue of whether a case has been made out at the close of the prosecution case. In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused, lies from beginning to end, on the prosecution. The standard of proof is high. The case must be proved beyond all reasonable doubt. The accused bears the burden of adducing evidence in support of any defence that would be open to him when he is put on his defence after he has been found with a case to answer. In the case of ABBOTT V. REGINA (1), this issue was Q considered by the court of Criminal Appeal in England. The brief facts of the case were that the appellant was indicted with his secretary, a Mrs. Wales, for forgery. By the close of the case for the prosecution the case against the appellant had collapsed and a submission of no case to go to the jury was made. The judge allowed the case against the appellant to proceed. The co- - 6 - ------------ - - - accused gave evidence against the appellant and both of them were convicted. The court of appeal allowed the appeal and quashed the conviction. Lord Chief Justice Goddard said this at page 150:- , " There is no question about the proviso arising in this case. Here we have a· question whether or not there was a right decision in point of law by the judge. In our opinion, the learned trial judge ought to have said at the end of the case for the prosecution that there was no evidence against the appellant, and therefore he was wrong in law in giving that deci'sion." In this case the co-defendant filled the gap for the prosecution. In our view, we see little difference if it was the appellant who gave evidence which led to his conviction. In the PRACTICE NOTE (2) Lord Parker, C. J, stated that a submission of no case to answer may properly be made and upheld:- (a) When there has been no evidence to prove the essential element of the alleged offence; (b) when evidence adduced bythe prosecution has been so discredited that no reasonable tribunal could safely convict on it. We agree that these are considerations judges should take into account at the close of the case for the prosecution. We - 7 - - - --------- - wish to add that the use of the word " could " does not mean that the case has to be proved beyond reasonable doubt at that stage. ' If a reasonable tribunal might convict on the evidence so far laid before it, there is a·case to answer. In the case of REGINA V. GALBRAITH (3), the Court of Appeal c;liscussed the approach judges should take when there is a submission of no case. The facts of this case were these. The applicant GALBRAITH was convicted on an indictment charging that he fought and made an affray. He was convicted and sentenced to four years imprisonment. He applied for leave to appeal against conviction on the ground that the judge wrongly rejected a submission at the end of the prosecution case that the case against him should be withdrawn from the jury. The applicant made a self-exculpatory statement at the police to the effect that at the material time when the affray was in progress he had not been in the bar at all but downstairs in the lavatory. There were two witnesses who testified that the applicant was in the bar together with two others standing by the fight watching with knives out in a threatening way. Lord Lane, C. J. had this to say at pcge 1043 (B-D) - 8 - " (1) If there ,is no evidence that the crime has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence:- (a) Where the judge comes to the conclusion that the prosecution evidence taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (c) Where however the prosecution evidence is such that its ' strength or weakness depends on the view to be taken of the witnesses' reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge shoul~ allow the matte: to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred." The second school of thought referred to by Lord Lane, is that which advocates that a judge should stop a case only if there is no ev~dence upon which a jury properly directed could properly convict. The application to appeal to the Court of Appeal was refused on the ground that the judge would not have been justified that the prosecution evidence taken at its highest was - 9 - such that the jury properly directed could not properly convict upon it. In Zambia, we do not have the jury system. Questions of fact and law are decided by the judge. Whether a submission of NO CAS;E is made or not, it is incumbent on the court of its own motion to make a determination whether a prima facie case against the c1.ccused is made out. O· The position in Zambia as regards what happens at the close of the prosecution case is go.verned by statute. Section 206 of the Criminal Procedure Code Cap 88 provides:- S. 206" If at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case, and shall forthwith acquit him." This section was construed by the then Chief Justice DOYLE in the case of HAHUTI V. THE PEOPLE (4). The facts of the case were, briefly, that the appellant was convicted of stock theft. The ox was stolen some time in October 19'72. It was next seen being sold by the appellant in May 1973. Recent possession . could not support such a case. A period of eight months could - 10 - not be said to be recent possession as the ox could have changed . hands during that period. The appellant was put on his defence and he gave evidence stating when he was in possession of the ox - thus filling the gap in the prosecution evidence. After reviewing a number of cases, including ABBOTT V REGINA. cited above DOYLE C. J. had this to say at page 156 (lines 18 - 24):- " A man against whom there is no prima facie case at the close of the case for the prosecution is entitled to an acquittal. An error on the part of the trial court in thinking that there is a prima facie case cannot alter that position. In my opinion-section 206 of the C P C is mandatory, and means that if it appears to a court properly directed that the case 'is not made out, the accused is entitled to an acquittal. The appellant in this case should have been acquitted at the close of the prosecution case." Section 206 should be read together with section 291 ( 1) of the Criminal Procedure Code Section 291 (1) provides:- 291 ( 1) " When evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding. - 11 - ~ - - - ------------------ - The finding that a judge has to record under section 291 (1) in our view is the same as that under section 206. Section 206 relates to trials before Subordinate Courts while section .291 relates to trials in the High Court .. The judge on considering that there is no evidence that the accused or any one of several accused committed the offence must acquit the accused. The finding must show that there is no evidence that the accused committed the offence followed by an order acquitting the accused. Unlike at common law, the application of these two sections does not depend on the defence making a NO CASE to answer submission. As indicated earlier the court has of its own motion to consider whether a prima facie case has been made out. Both sections are mandatory. If the accused person is convicted as a result of an error of the trial court in thinking that there is a prima facie case, the conviction cannot stand. It must be quashed. An appellate court has no ·discretion. In this case the evidence of PWl, PW2 and PW3 is hearsay in so far as they assert that what the deceased told them is the truth. Their evidence is inadmissible. There has been no - 12 ·- suggestion that the statement by the deceased can be received as part of res gastea. ' In the case of EDWARD SINYAMA V. THE PEOPLE (5) we discussed, like in other cases before it, res gastea. The facts were these. The appellant collected his wife, the deceased, from .her uncle's house in Kalingalinga ,Compound where she lived and went with her to his house. After an argument the appellant doused the deceased with paraffin and set her ablaze: She fled to her uncle's house from where she had a short while ago been collected and in answer to a question told her relatives PW2, and PW3 that it was the appellant who had set her ablaze, after losing ' his temper over a pair of shoes she had lost. At page 19 this court said:- " If the statement has otherwise been made in conditions of approximate, though not exact,, contemporaneity by a person so intensely involved and so in the throes of the event that there is no opportunity for concoction or distortion to the disad,antage of the defendant or advantage of the maker, then the true test and the primary concern of the court must be whether the possibility of concoction or distortion should actually be disregarded in the particular case. The possibility has to be considered against the circumstances .in which the statement was made." - 13 - In this case, we found that the statement qualified to be treated as res gastea. The circumstances were that witnesses for the prosecution testified that they saw the 'deceased being collected by the appellant and she returned shortly afterwards in a terrible condition. These witnesses told the court what the deceased told them. The facts in this appeal are different. There is no single witness who saw the appellant and the deceased together that night. There is no evidence as to the time and place where the deceased was assaulted. PWI told the court that at the time she saw the wounds on the body of the deceaS:!d, blood had dried. This evidence indicates that quite a considerable time passe4 ' between the assault and the making of the statement. We agree with the learned Chief State Advocate that the statements made by the deceased were not contemporaneous or .spontaneous with the event. The. possibility of concoction or distortion was very high in the circumstances of this case. The other prosecution evidence is that of PW6, the arresting officer. It was to the effect that he obtained a warn and caution - 14 - 0 statement from the accused in which he confessed to killing the _deceased. He also gave a free an~ voluntary reply on arrest admitting the charge. The warn and caution statement and the statement the appellant made on arrest were not produ::ed. Why the two statements were not produced can only be left to speculation. Had the statements been produced they would have formed part of the prosecution evidence at the close of the case . . ' 0 for the prosec11tion. No search of the appellant's house was made and no murder weapon or blood stains connecting the appellant were found~ There was neither direct nor circumstantial evidence at that stage. The learned trial judge found the appellant with a case to answer and put him on his defence. The appella:it gave evidence on oath explaining how the deceased threatened to kill him at his house. fn self-defence he stabbed the deceased with a spear .. The learned trial judge dismissed the appellant's story. Instead, he relied on the statement which the appellant made to police to disprove the defence. This is the same statement which the prosecution, for inexplicable reasqns, did not produce. He also relied on the hearsay evidence of PW2. - 15 - The learned Chief State Advocate very properly dil not support the conviction. We also agree with learned counsel for the appellant that the learned trial judge having rejected the _appellant's story there was no other evidence to support the ' conviction. From the evidence on record we find that at the close of the evidence for the prosecution there was no evidence that the appellant committed the offence. It was an error on the part of the learned trial judge in thinking that there was a prima fade case. In addition, the appellant's defence having been rejected there was no other evidence to support the conviction. For the reasons given the appeal is allowed, the conviction is quashed and the sentence is set aside. The appellant stands acquitted. -------~---- E. L .. SAKALA CHIEF JUSTICE ,.. ----- ------------------------ S. S. K. MUNTHALI AG. SUPREME COURT JUDGE - 16 - 0