People v Kambilumbilu [1966] ZMHC 14 (2 August 1966)

THE PEOPLE v KAMBILUMBILU (1966) ZR 88 (HC) HIGH COURT EVANS J 2nd AUGUST 1966 Flynote and Headnote [1] Evidence - Burden of proof - Provocation - State must negative the defence. The State must negative by proof beyond reasonable doubt a defence of provocation raised by a person accused of murder. [2] Criminal law - Provocation - Burden of Proof on State. See [1] above. [3] Criminal law - Provocation - Intention to kill or cause grievous bodily harm does not negate the defence - Section 183 of Penal Code construed. An accused does not lose the benefit of the defence of provocation merely because he intended to kill or seriously hurt the deceased. [4] Criminal law - Self-defence - Obligation to retreat before using deadly force. An accused cannot successfully claim self-defence (in a case involving death caused by the intentional infliction of 'serious hurt') where he could have retreated 'with ease'. Case cited: (1) Lee Chun - Chuen v R [1963] AC 220; [1963] 1 All ER 73. Statute construed: Penal Code (1965, Cap. 6), ss. 18, 183. Cave, State Advocate for the people Smallwood, for the accused Judgment Evans J: The accused, who is a forty - five - year - old villager, is charged under s. 177 of the Penal Code with murdering Margaret Malupenga (hereinafter called 'the deceased') on or about the 7th May, 1966, at Anderson Village in the Solwezi District. The onus rests throughout upon the State to prove, upon the evidence and beyond reasonable doubt, that the accused caused the deceased's death by an unlawful act and of malice aforethought, which is deemed to be established by proof of any of the circumstances specified in s.180 of the Penal Code. The accused admits that he caused the deceased's death by stabbing her with a knife. There was no prosecution eye - witness to the killing, the only evidence of which is that of the accused, whose counsel submitted that he was so provoked that he is guilty not of murder, but of manslaughter. The State's case is based principally 1966 ZR p89 EVANS J upon the injuries inflicted on the deceased and subsequent statements made by the accused. Undisputed facts are that the deceased suffered three wounds - one on the right side of the chest, passing through the right lung and cutting upon the right auricle of the heart, one on the left side of the chest, penetrating the liver and stomach, and another on the left arm. The cause of death was the wound to the heart, and the wound to the stomach and liver would not necessarily have been fatal per se if medically treated. The deceased died within minutes of being stabbed. The said statements alleged to have been made by the accused were: (1) When, in the early hours of the 8th May, he gave himself up to the Messenger or Kapasu Molwe (P. W.5) and said, 'I have killed a person' and further stated in effect that he had killed a woman because she had been worrying him and had seven men apart from him, he being her eighth, and that he had stabbed her with a Congomade knife. (2) When he was handed over by Molwe to Detective Sergeant Munkinyi on the morning of the 8th May at Solwezi, he said that he had stabbed someone because she had many 'boy - friends'. He was then charged and cautioned and voluntarily stated: ' I admit the charge of killing Margret Malupenga because her relatives gave her to me, and the gun, so that I might kill game for them, but there were many boy - friends for this woman.' (3) When formally charged and cautioned by Detective Constable Kaipinji on the 9th May, he voluntarily stated: ' I admit the charge. I killed her because I was very angry when I found another man inside her hut.' (4)There is also evidence, the reliability of which I doubt, to the effect that, shortly after the deceased's death, the accused was heard to shout from the bush: 'I, Hunter Kambilumbilu, I am the one who has killed her.' The principal prosecution witnesses maintain that the accused was not married to the deceased and was in fact a virtual stranger in Anderson Village. The accused gave evidence in his defence and called no witnesses, and he was subjected to prolonged and detailed examination and cross - examination. Basically, his account of material events is as follows. He came to Anderson Village on the 8th January this year, met and fell in love with the deceased and, not knowing she was married to Muke Tembwa (who was away), he obtained her parents' consent to his marrying her, paid £5 cash dowry the next day and subsequently lived with her, being employed by her father, Malupenga Nanga (P. W.1) to cultivate cassava and subsequently to kill game for food. They lived happily until April, when the deceased's conduct deteriorated - she went about drinking and staying nights 1966 ZR p90 EVANS J at neighbouring villages while he was out hunting - and he subsequently discovered that she was a whore of some repute. On the 7th May, he returned to her house at 11 p.m., from a hunting trip, and had to knock on the door four times before she opened it (it being barred on the inside). She stood in the doorway and he asked her to light a match so that he could see (he was carrying a gun and a bundle of game meat). She said she had no matches, so he handed her some and she lit a lamp and told him to enter. He put down what he was carrying and was then knocked down by the loose door which someone threw at him. He recovered his breath and asked the deceased who had knocked him down, demanding his name, but she said, 'I'm not going to tell you his name. Never mind if I'm committing adultery, this is Zambia.' Then followed a mutually abusive conversation between them, including allegations or suggestions of incestuous relationships, whereupon the deceased picked up and hit the accused over the eye with her soft shoe, and then picked up an axe with which she attempted to strike him but he disarmed her. She then obtained a knife and tried to stab him, and he was by then so angry that he again disarmed her and stabbed her in the arm and chest. As they struggled, he put his foot in a pot and fell and she fell on top of him, landing on the knife in his hand and thus suffering the wound to the liver and stomach. He left her and went off to report to the Chief's court, reporting later to the before-mentioned Kapasu. The accused admitted in evidence that, when he first stabbed the deceased, he wanted to 'hurt her seriously', and he said in effect that he did so because of his great anger caused cumulatively by the deceased's parents' conduct in giving him important hunting work and not driving away intruders to his home, by his reasonable assumption that the deceased had a man with her when he returned home that night, by his being felled by the door, which he thought that man had thrown at him, by the deceased's refusal to name the man and by her attack upon him with a shoe, axe and knife. Having seen and heard all the witnesses and the accused, and having scrutinised the evidence, I conclude that the principal State witnesses, namely Malupenga Nanga, Eni Malipenga, Musaka Lona and Edina Muke (to all of whom the deceased was related) gave totally unreliable evidence concerning the relationship between the accused and the deceased, except when Musaka Lona, the deceased's mother, eventually testified in cross - examination that they were sleeping together and committing adultery and that that was a matter of common knowledge and that the accused regarded the deceased as his wife. As not infrequently happens in this type of case, these unsophisticated witnesses have, in my view, given much false evidence, and probably suppressed material facts, in a foolish endeavour to enhance the case against the accused and to whiten the character and preserve the reputation of the deceased. By so doing, they merely weaken the State's case by tainting the whole of their biased testimony. Upon the whole of the evidence, I accept that the accused had a close and adulterous relationship with the deceased, and, whilst I am not entirely certain that they were married in fact and in law, 1966 ZR p91 EVANS J I find that they lived together as man and wife and that the accused regarded her as his wife. Generally, the accused testified in a more convincing manner than the above - named prosecution witnesses and in the main he stood up well to a testing time in the witness box. In the absence of other evidence of the circumstances in which the deceased was killed, I am satisfied that the accused's version is probably largely true. It is not much inconsistent with the above - mentioned statements (1), (2) and (3), which I find he made, although I observe that in none of them did he mention the deceased's attack on him, and it is roughly consistent with the deceased's injuries, and it is to be noted that he gave himself up soon after the killing. Certainly, the evidence as a whole does not enable me to disbelieve the accused's version, which I therefore accept. [1] [2] The State has not negatived beyond reasonable doubt (as it must to warrant a conviction for murder) the defence of provocation. Indeed, I am satisfied that the deceased's conduct on the night of the 7th May constituted provocation as defined by s. 183 of the Penal Code, that the accused unlawfully killed her in the heat of passion caused by sudden and continuing provocation, and before there was time for his passion to cool, and that his act or acts which caused the death bore a reasonable relationship to the provocation. [3] He does not lose the benefit of the defence of provocation because, as he admitted, he intended serious hurt to the deceased - Lee Chun - Chuen v R [1] in which the Privy Council re-affirmed the law as stated by Lord Goddard in Attorney-General for Ceylon v Perera [1953] AC 200 in these words (at 77): 'The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self - control by reason of provocation. [4] There was a suggestion by the accused, but not pursued by his counsel, that he killed in self­ defence. I have considered this and am satisfied that it has been disproved beyond reasonable doubt. Not only did the powerfully - built accused disarm the deceased each time she armed herself with a lethal weapon, but he could have retreated from the hut with ease. I find the accused not guilty of murder but guilty of manslaughter contrary to s. 176 of the Penal Code, and I convict him accordingly. Accused convicted of manslaughter