Natasha Nawa v People (Appeal 169 of 2017) [2018] ZMSC 568 (26 June 2018)

L) IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 169 OF 2017 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: NATASHA NAWA APPELLANT RESPONDENT CORAM: Makungu, Chashi and Sichinga, JJA ON: 14th November 2017 and 26th june 2018 For the Appellant: K. Muzenga, Deputy Director, Legal Aid Board For the Respondent: M. K. Chitundu (Mrs.) Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT CHASHI JA, delivered the Judgment of the Court Cases referred to: 1. The Minister of Home Affairs and The Attorney General v Lee Habasonda Suing on his own behalf and on behalf of The Southern African Centre for the Constructive Resolution of Disputes (2007) ZR 207 2. Muyunda Muziba and Situna v The People - SCZ No. 29 Of 2012 3. Muvuma Kambanja Situna v The People (1982) ZR 115 4. Director of Public Prosecutions v Risbey (1977) ZR 28 - Reprint 5. Yokoniya Mwale v The People - SCZ Appeal No. 285 of 2014 6. R v Blaue (1975) 3 All ER 446 -J2- 7. Patson Simbaiula v The People (1991 -1992) ZR 136 8. Mushanga v The People SCJ No. 18 of 1983 9. R v Turner (1975) 2 WLR 56 10. Palmer v R (1971) 1 All ER 1088 11. Abraham Mwanza & Two Others v The People (1977) ZR 221 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia Other works referred to: 1. Smith & Hogan Criminal law, 11th edition, Oxford Press 2005 This is an appeal against conviction. The Appellant appeared before the High Court sitting at Lusaka charged with the offence of murder, contrary to section 200 of The Penal Code1. It was alleged that the Appellant, on 10th July, 2015 at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia did murder William Njobvu (the deceased). After trial, in the Judgment delivered on 29th September 2016, the Appellant was convicted of the offence of manslaughter and sentenced to one (1) year imprisonment with effect from 10th July, 2015. At the trial, the prosecution in support of their case, called seven witnesses. -J 3- PW1, Charles Mwale, the deceased’s friend, testified that he was with the deceased on the material day, when they left home to visit a drugstore and, on their way, they stopped at a bottle store called “ten ten” to buy some meat to braai. Whilst waiting for their meat, PW1 and the deceased stood beside a wall fence opposite the said bottle store. When the Appellant found them, she informed them that they were not allowed to stand at her wall fence. After an argument, PW1 and the deceased moved. It was his testimony that the Appellant later came out of the house and attacked them with knives. They managed to escape and they proceeded to the police station where they found the Appellant. It was his testimony that whilst at the police station, the deceased informed PW1 that the Appellant had kicked him in the stomach and he was unable to stand. PW2, Bertha Njobvu, the wife to the deceased, testified that, on 10th July 2015, around 18:30 hrs, when she got home, PWl’s wife informed her that she had received a phone call from the police requesting for her (PW2) to rush to the police station because her husband had been injured. -J 4- It was her testimony that when she arrived at the police station, she found the deceased lying on the ground, complaining of stomach pains and he was unable to stand. The deceased told her that the Appellant had kicked him in the stOomach. She took the deceased to chelston clinic but they did not find a doctor. His condition worsened in the wee hours of Sunday and the deceased was rushed to Levy Mwanawasa Hospital where the doctor examined him and pronounced him dead. PW3, Constable Titanenji Phiri, testified that on the material day while on duty, the Appellant arrived at the police station inquiring on whether two men had been to make a report against her. When the two men eventually arrived, they started quarrelling with the Appellant. The Appellant was subsequently detained by PW5, Chief Inspector Ngoma for her unruly behaviour at the police station. PW3 further informed the court that the deceased complained of stomach pains, claiming that the Appellant had kicked him in the stomach. The evidence of PW4, Constable Phillip Lundovu, was in all material respects similar to that of PW3. -J 5- PW5, Chief Inspector Ngoma testified that on the material day he heard some noise coming from the inquiries office. Upon inquiry on what was happening, he found the Appellant with two men. It was his testimony that he also observed that the Appellant had two knives in her hands. PW5 informed the court that he made an attempt to reprimand the Appellant for her behaviour but it proved futile and consequently the Appellant had to be detained for her disruptive behaviour. He further testified that he saw the Appellant kick the deceased in the stomach. PW6, Musakhanov Tadjimurat, the state forensic pathologist testified that he conducted a postmortem on the body of the deceased and his findings as contained in the postmortem report were to the effect that the cause of death was cardio respiratory arrest due to generalised suppurative peritonitis and hemorrhagic necrosis with perforation of the small intestines due to a surgical operation the deceased had about 5 to 6 years ago in the interior abdomen. He further testified that other than the post-surgical scar, the external examination did not reveal any trauma injuries. -J 6- PW7, Mubita Hamoya, detective inspector, testified that on 13th July 2015, while on duty, he was allocated a case of murder. He interviewed the Appellant who was already in custody and charged her with the offence of murder. On the other hand, the Appellant in her defence testified on oath that on the material day around 18:00hrs, while on her way home from the clinic, she found six men standing and drinking at her gate. When she asked them to move, four moved and the two who remained started insulting her. Whilst inside her house, she heard people banging at her gate and insulting her parents. It is at this point that she confronted them. It was her testimony that PW1 grabbed the knife she had in her hands, twisted her arm and slit her thigh with it and they both ran away. It was her testimony that she decided to go to the police station and informed the police officers that she had been attacked by two men. She further stated that when the two men arrived, they quarreled and PW5 asked her to stop shouting as she was a police officer and she was later detained. She denied having kicked the deceased in the stomach. -J 7- Upon reviewing the evidence before her, the trial court found as a fact that on 10th July 2015, the deceased, PW1 and persons unknown were standing by the Appellant’s gate and an argument ensued, which led them to the police station. The court was of the view that even though there was conflicting evidence of what had transpired at the police station, she was inclined to accept the evidence of PW5 to the effect that the Appellant kicked the deceased in the stomach. She further relied on the evidence of PW2 who testified that she found the deceased complaining of stomach pains at the police station. In addition the court relied on the postmortem report and the fact that the deceased met his demise within 48 hrs of having been kicked in the stomach by the Appellant. She opined that though the Appellant’s act was not the sole cause, it hastened the death of the deceased. However, the trial Judge was of the view that the prosecution had not satisfied her on one essential ingredient of the offence of murder being the malice aforethought. According to her, the murder was not pre-meditated and as a result she found the Appellant guilty of manslaughter. -J 8- Dissatisfied with the Judgment of the lower court, the Appellant has appealed to this Court advancing two grounds of appeal couched as follows: 1. The learned trial judge misdirected herself in law when she delivered a judgment which fell short of the standard as it did not consider the evidence of PW6 and PW7 thereby depriving the Appellant of an opportunity to properly appeal against it. 2. Even if it were to be found that the Appellant kicked the deceased once in the stomach, we contend that the offence which the Appellant was convicted of equally requires the prosecution to establish that the assault caused the death of the deceased. The Appellant had initially filed three grounds of appeal, however when the matter came up for hearing, Mr. Muzenga Counsel for the Appellant filed an additional ground of appeal and abandoned grounds two and three remaining with two grounds as stated above. -19­ In support of ground one, Counsel submitted that the trial court in reviewing the evidence adduced before her, did not consider the evidence of PW6, the pathologist who conducted the postmortem and PW7 the arresting officer. It is contended that at the time the trial court was writing her judgment, she did not have the evidence of the two witnesses and only considered the evidence of PW1 to PW5 as seen at page J6 of her Judgment. According to Counsel, if the lower court had considered the said missing evidence, it would not have arrived at the same decision and would not have relied on the evidence of PW5. Counsel submitted that the learned trial court arrived at its decision without considering all the evidence in its entirety and consequently the Judgment was defective. Counsel referred us to the case of The Minister of Home Affairs and The Attorney General v Lee Habasonda Suing on his own behalf and on behalf of The Southern African Centre for the Constructive Resolution of Disputes1 where the Supreme Court held inter alia that: “Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if -J 10- made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts. ” Counsel further relied on the case of Muyunda Muziba and Another v The People2 where the Supreme Court held as follows: "We must add, from the outset, that the judgment of the trial court must always be an important part of any record of appeal. There are a number of previous decisions that this court has made which clearly show how important a judgment of a trial court is to the entire life of a criminal case.” Further the case of Muvuma Kambanja Situna v The People3 was cited where the Supreme Court held that: "Judgment of the trial Court must show on its face that adequate consideration has been given to all relevant material that has been placed before it, otherwise an acquittal may result where it is not merited. ” It was Counsel’s submission that the lower court in arriving at her decision that the Appellant kicked the deceased, relied heavily on the evidence of PW5 and the postmortem report -J 11- without considering the evidence of PW6 and PW7. It was Counsel’s contention that PW6 elucidated the findings set out in the postmortem report and testified that after examining the body, he did not find any evidence of trauma and the deceased died as a result of other causes. Counsel opined that in the absence of the medical evidence proffered by PW6; the evidence of PW5 and that of the Appellant regarding what happened to the deceased becomes a credibility issue which can only be resolved by the trial court. Counsel further submitted that since the Appellant has already served the sentence imposed by the lower court, this would not be an appropriate case to order a retrial but an acquittal. In support of ground two, Counsel submitted that even in the event that the Appellant did kick the deceased in the stomach, the Prosecution did not adduce any evidence to prove that the assault on the deceased caused his demise. It was Counsel’s contention that in considering the issue of causation at page J10 of her judgment, the lower court did so in the absence of the evidence of PW6, who found no evidence of trauma on the body of the deceased and that it was not the cause -J12- of death. According to Counsel, the finding by the lower court that the act of the accused caused the death of the deceased cannot stand in light of the evidence of PW6 and such a conviction is not tenable. Lastly, Counsel prayed that the appeal be allowed and the conviction and sentence be set aside. On behalf of the State, the learned Deputy Chief State Advocate Mrs. Chitundu supported the conviction and sentence. In response to ground one, Counsel placed reliance on the cases of The Minister of Home Affairs and The Attorney General v Lee Habasonda Suing on his own behalf and on behalf of The Southern African Centre for the Constructive Resolution of Disputes1 and Muvuma Kambanja Situna v The People3 and submitted that even though the evidence of PW6 and PW7 did not form part of the lower court’s Judgment, she did make reference to the postmortem report at page 81 of the record of appeal (hereinafter called record) which was essentially the basis of PW6’s evidence. That the lower court addressed its mind to the evidence of PW6 at page 80 line 23 and page 81 line 21 of the record. -J 13- Counsel further submitted that the learned trial court analysed all the evidence before it including that of PW6 and PW7. Counsel drew our attention to the case of the Director of Public Prosecution v Risbey4 where it was held that: "There is no prejudice to an appellant where a judgment of the lower court is available.” It was Counsel’s contention that since there is a well-reasoned judgment on record, there is no prejudice occasioned to the Appellant. It was further submitted in the alternative, that even though the evidence of PW6 and PW7 was left out of the Judgment, it could be found at pages 33 to 47 of the record and the said evidence does not raise any issues of credibility. In support thereof, the case of Muziba and Another v the People2 was cited where the Supreme Court held inter alia as follows: “Where there is no question of credibility of witnesses but the question is the proper inference to be drawn from specific facts, an appellate court is in a good position to evaluate the facts of a trial judge and should form its own independent opinion” -J 14- According to Counsel, the only parties involved in the scuffle were the Appellant, the deceased and PW1. PW5 only intervened in order to put an end to it and it was at that point that PW5 witnessed the Appellant kick the deceased in the stomach. Counsel opined that PW5 could not have been mistaken that the Appellant kicked the deceased. In the case of Yokoniya Mwale v The People5, Mumba Malila JS stated as follows; “The consistent position of this court has been that in criminal proceedings, relatives and friends of the deceased or victim, may well be witnesses with an interest to serve, or may be merely biased. ” The court further stated at Pl7: “The point in all these authorities is that this category of witnesses may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the Accused. Once this is discernible, and only in these circumstances, should the court treat those witnesses in the manner we have suggested in the Kambarange case” -J 15- It was submitted further that PW5 was a co-worker and supervisor to the Appellant, he had not previously known the deceased and no such evidence was adduced to show that he had any reason to fabricate the fact that it was the Appellant who kicked the deceased in the stomach. The lower court correctly relied on the evidence of PW5 as he had no reason to falsely implicate the Appellant. Counsel further submitted that even though the evidence of PW6 and PW2 reveals that the deceased had a previous operation and that he had suffered from strangulation hernia, he was still able bodied and had a normal life. The deceased began experiencing excruciating pain only when he was injured by the Appellant. In urging the Court to apply the principles of causation and the “but for” test, Counsel relied on section 207(d) of The Penal Code1 which provides as follows: “207. A person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases: -J 16- ((d) If by any act or omission he hastens the death of a person suffering under any disease or injury which apart from such act or omission would have caused death... “ Counsel further cited the case of R v Blaue6 where the court held: “It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man... ” She also cited the case of Patson Simbaiula v The People7 where the Supreme Court held: “Where a person inflicts an injury and the injured person later dies of a cause not directly created by the original injury, but caused by it, the requirement of causation is satisfied. Where the cause of death can be traced back in a clear chain to the actions of the person causing the injury, it is not always necessary for direct evidence to be lead that the injured person received proper medical treatment. ” According to Counsel, the Appellant hastened the death of the deceased and that even though the deceased had a previous -J 17- operation, the Appellant must take the victim as she found him. It was submitted that PW6 having found no evidence of trauma, the only inference that could be drawn from the circumstances surrounding the case, is that the assault led to the death of the deceased. In making the point that medical evidence as to cause of death is not always conclusive, Counsel relied on the case of Mushanga v The People8 where it was held that: “Medical evidence presented to the trial court may or may not be conclusive. However, the court is bound to consider the medical evidence together with all other relevant evidence. Its quality and weight will be assessed in light of other facts and circumstances of the case.” Counsel also cited the case of R v Turner9, where Lawton LJ stated at page 40 as follows: “An expert’s opinion is admissible to furnish the court with information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary. ” -j 18­ In light of the aforementioned authorities, Counsel submitted that in considering the circumstances of the case, the only reasonable explanation is that the assault led to the death of the deceased as rightly found by the lower court. The Appellant proffered no reasonable explanation for her actions and her act could not be considered as self defence as it happened while at the police station in the presence of her fellow officers and not at her premises. The Appellant did not face any imminent danger to warrant her attack on the deceased. It was submitted that her actions were fuelled by revenge for the alleged insults. The case of Palmer v R10 was cited. We were urged to uphold the conviction of the lower court and to possibly interfere with the sentence. We have carefully considered the evidence on record, the Judgment of the trial court and the submissions by both learned Counsel. We wish to state from the outset that we acknowledge the Appellant’s grievance regarding the lower court’s analysis of the evidence. We however note that the evidence of PW6 and PW7 -J 19- was properly received by the lower court and this evidence is found at pages 33 to 47 of the record. The trial court at page J2 of the Judgment correctly stated that the Prosecution’s evidence was anchored on 7 witnesses but in analysing their evidence, left out the evidence of PW6 and PW7, which evidence in our view was cardinal to this case. PW6 who is the pathologist went into great detail elucidating his findings and the cause of the deceased’s death which was the main issue for determination in the lower court. The trial Judge in arriving at her decision had this to say at page J10 of the Judgment: “I am inclined to believe the testimony of PW5 that the deceased was kicked in the stomach. This is because PW2, the deceased’s wife testified that she found the deceased agonizing in pain while holding his stomach when she found him at the police station. In addition the postmortem report revealed that the cause of death was: a) Cardio Respiratory Arrest due to b) Generalised Suppurative Peritonitis due to -J 20- c) Haemorrhagic Necrosis with Perforation of the small intestine Having scrutinized the postmortem report and indeed taking into consideration the fact that the deceased died within 48 hours of the act of being kicked by the deceased, I am inclined to find although not the sole cause that the act of the accused caused the death or precipitated the death of the deceased.” Having perused the Judgment of the lower court, we find merit in the Appellant’s argument that the trial Judge did not analyse the evidence of PW6 when arriving at her decision, she merely relied on the postmortem report. We are aware that in cases where a postmortem report would suffice on its own, the court is at liberty to place reliance on it, however, there are cases where there is need for the author or the medical doctor to testify in order to elucidate their findings before the trial court can arrive at a decision. In the case of Abraham Mwanza & Two Others v The People11, the Supreme Court held inter alia as follows: “i ) There may be cases in which a medical report will be sufficient to supply this information without it being necessary -J 21- to call the doctor, but medical reports usually require explanation not only of the terms used but also of the conclusions to be drawn from the facts and opinions stated in the report. (i i) It is highly desirable save perhaps in the simplest of cases for the person who carried out the examination in question and prepared the report to give verbal evidence in the court. ” In light of the above case, it is only in the simplest cases that a postmortem report should suffice on its own without the need for any further elucidation. Clearly the present case does not fall within that category. It was therefore necessary for the lower court to analyse the evidence of PW6 to ensure that the cause of death was satisfactorily established. PW6 not only gave an explanation of the terms used but also conclusions to be drawn from the facts and opinions contained in the postmortem report. In the case of The Minister of Home Affairs and The Attorney General v Lee Habasonda Suing on his own behalf and on behalf of The Southern African Centre for the Constructive Resolution of Disputes3 the Supreme Court held inter alia that: -J 22- (1) The trial judge made no findings of fact. He simply reproduced verbatim the notice of motion, the affidavits and the skeleton arguments. (2) Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts. In light of the holding in the above case, it is cardinal that a trial court in its Judgment thoroughly analyses the relevant evidence before it and properly articulates the reasoning behind its Judgment so as to leave no room for doubt. All relevant evidence must be fairly, adequately and comprehensively evaluated in order to avoid such appeals. In the absence of such analysis, Judgments of trial courts become assailable, as is the case here. In the case of Muziba and Another v The People2, the Supreme Court discussed what to consider in cases where there is a poor judgment or no Judgment at all. The brief facts in that case were that the two Appellants were convicted of the offence of aggravated robbery contrary to Section -J 23- 294 (1) (2) of The Penal Code1 by the High Court and they were both sentenced to death. When the record was prepared, the lower court’s Judgment could not be found and what was on the record before the Appellate Court were all the police statements, committal procedure documents and all the evidence given by both the prosecution witnesses and the Appellants, all the notes of the learned trial Judge and the two certificates of sentence of death. The Appellants argued that in the absence of the Judgment, the Appellant was deprived of the opportunity of pursuing the appeal and that in such circumstances the appeal must be allowed. The Prosecution on the other hand, argued that the primary facts were common cause and that the Appellate Court may proceed to hear the appeal based on the record before it. The Supreme Court resolved to hear the parties on the basis of the verbatim record of proceedings. What is of importance to us is the reasoning of the Court in arriving at that decision to hear the appeal based on the verbatim record of proceedings. The Court had this to say: -J 24- “ Where a judgment of the trial court goes missing, technically there will be nothing to show, on its face that the trial court adequately considered all the relevant material that was placed before it. It is this failure which deprives the appellate court from assessing the merits of the case. This, in no way, should be taken to mean that when the judgment of a trial court is poor or goes missing on appeal, the appeal must succeed and the appellant be acquitted. We do recognize that all human records must be bound to err at one time or another and for a variety of reasons... In our considered view, to hold that when a Judgment of the trial court goes missing from the record of appeal in a criminal matter, the appellant be acquitted, would unjustly invite all manner of uncertainties in the criminal justice system; and those with a propensity or habit to break the law could acquire a hand in some missing judgments in order to achieve technical acquittals. We want to emphasize that there must be the overall consideration of ‘merit’ or lack of it, in the relevant material before the appellate Court, in every case where there is a complete verbatim record of proceedings; but for the Judgment of the trial court.” (emphasis ours) « > -J 25- The facts that obtained in the above case can be distinguished from the present. In that case, the Judgment of the trial court went missing and could not be found and in casu, the Judgment of the lower court is part of the record but certain relevant evidence was not analysed by the lower court. However, we find that the reasons in the above case, apply a fortiori where the court is concerned with a poor Judgment, as is the case here. It will therefore be prudent for us to adopt the same approach the Supreme Court did because, before us, not only is there a complete verbatim record of the proceedings in the lower court but also the Judgment of the lower court which is devoid of the evidence of PW6 and PW7. We shall therefore consider all the relevant evidence before us. That being said, we reject the contention by Counsel for the Appellant that in the absence of the analysis of the evidence of PW6 and PW7, the Judgment is defective and that consequently an acquittal must result. In that regard, ground 1 of the appeal fails. The second ground of appeal is centered on the issue of causation; whether the Appellant’s alleged action of kicking the « -J 26- deceased in the stomach caused the deceased’s death. The lower court after considering the evidence before her was of the view at page 81 of the record that even though the Appellant’s actions were not the sole cause of the deceased’s death, they hastened his death. According to the authors of Smith & Hogan Criminal law1, one of the principles underlying the law of causation is that the Defendant’s action need not be the sole cause of the resulting harm but it must be more than minimal. The Appellant’s action must be a significant factor in the resulting death. We have considered the evidence of PW6 and the postmortem report. PW6 explained in detail that when he conducted the examination, he discovered that the deceased had an operation about 5 to 6 years ago in the interior abdomen. The examination further revealed that the abdominal cavity contained 1.5 litres of blood mixed with pus known as generative suppurative peritonitis and he also found hemorrhagic necrosis with perforation of the small intestines. During his examination in chief and cross examination, PW6 vehemently opposed the proposition that the deceased’s death -J 27- was caused by any physical trauma. According to PW6, the examination did not reveal any trauma in the abdomen neither did it reveal any signs of bruises or hematoma to point to a physical trauma. In the case of Mushanga v The People8 the Supreme Court had considered the evidence of a medical doctor in relation to the defence of insanity. This is what the Court had to say regarding the medical evidence: "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 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." ' * -128- In light of the above authority, we find merit in the Appellant’s argument that the Prosecution have not established a nexus between the Appellant’s act and the death of the deceased neither have they shown that “but for” the actions of the Appellant, the deceased would not have met his demise and would be alive today. We are therefore of the view that the Appellant was not the one who caused the death. However, our finding that the Appellant was not responsible for the deceased’s death, does not completely exonerate the Appellant. The evidence of PW5, who testified that he saw the Appellant kick the deceased in his stomach cannot be ignored. We are aware that PW5 was the only eye witness, but we have examined his evidence and find no motive on his part which could have actuated him to falsely implicate the Appellant and in fact, being the Appellant’s supervisor, he had more reason to come to her aid in this particular instance. We are therefore, satisfied that PW5 was properly held as a credible and truthful witness with no possible interest to serve. We are inclined to believe his testimony that indeed the Appellant kicked the deceased in the stomach. < ” * -J29- That being said, the preponderance of evidence on record suggests at best, that the Appellant is guilty of common assault, contrary to section 247 of The Penal Code1. To sum it up, ground one of the appeal fails and ground two is allowed to the extent that the conviction of manslaughter is set aside and a conviction for common assault substituted. We will not interfere with the sentence of one year imposed by the lower court, which is the maximum sentence for the offence of which the Appellant stands convicted and which the Appellant has already served. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE