Precious Longwe v People (Appeal No. 182/2017) [2018] ZMCA 605 (23 August 2018)

' IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Crimi nal Jurisdiction) Appeal No . 182/2017 BETWEEN: PRECIOUS LONGWE AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Mulongoti and Sichinga , JJA On 20 th February 2018, 21 st February 2018 and 22 nd August For the Appellant : 0 . Ngorna, Lungu , Sirnwanza and Company For the Respondent : R . L . Masernpela , Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga, DJP, delivered the judgment of the court . Cases referred to : 1. Bwanausi v The People [1976] Z . R. 103 2 . The People v Austin Chisangu Liato, SCZ Appeal No . 291 of 2014 3 . The People v Robert Phiri and Tenson Siagutu [1980] Z. R. 246 . 4. Mwewa Murono v The People [2004] Z. R. 2006 5. Kalaluka Muscle v The People [1963-1964] Z . and N. R. L. R. (Reprint) 206 ' J2 6. Tembo v The People [1972] Z. R. (Reprint) 220 7. Sheldrake v OPP [2004] UKHL 43 8 . John Lubhozha v The People, SCZ Appeal No 485/2013 9. Katundu v The People [1967] Z. R . (Reprint) 233 10 . 11. 12. 13 . Simutenda v The People [1975] Z. R . 294 The People v Pelete Banda [1977] Z. R. 304 Rosemary Chibwe v Austin Chibwe [2001] Z. R . 1 Mudewa v The People [1973] Z. R. 147 14 . Mulenga v The People [1966] Z . R . 118 15 . 16. 17 . 18. R v Bird [1985] 1 WLR 816 Rosalyn Thandiwe Zulu v The People [1981] Z . R . R v Ahluwalia 96 . Cr App . R. 64 Jack Chanda and Kennedy Chanda v The People [2001] Z. R. 124 19 . Jose Antonio Golliadi v The People, SCZ Appeal No. 26 of 2017 Legislation r eferred to : 1 . The Penal Code, Chapter 87 of the Laws of Zambia The appellant , appeared before the High Court on an information containing one count of the offence of murder contrary to section 200 of the Penal Code. The particulars of the offence alleged that on 26 th May 2016 , she murdered J3 Akakanda Lubinda Litebele , who was her husband. She den ied the charge and the matter proceeded to trial . According to the prosecution evidence , on 2 4 th May 2016 , around 23 : 00 hours , the appellant ' s husband and his brother , Lipimile Litebele , left Times Cafe at Lusaka ' s Arcades Mall, heading home. On their way , they passed through Chez Ntemba Night Club in Kabulonga , where they met the appel lan t , as they had earlier agreed . After a short interaction with her , the two brothers drove off to Woodlands , where they lived. When they got home , they sat in the sitting room for a while . After midnight , around 01 : 30 hours (on 25 th May 2016) , Lipimile Litebele retired to bed . He left his brother in the sitting room , but not long thereafter , he heard him scream , he also heard three or four gunshots. He got up and as h e rushed out of the bedroom , he met the appellant who was carrying a gun. She told him that she had shot his brother and would shoot him as well. They wrestled over the gun and ended up in the kitchen , where he disarmed her . Upon noti cing J4 that his brother was dead , he rushed to Woodlands Police Station where he reported the matter. A postmortem was subsequently conducted on t he body o f Akakanda Lubinda Litebele by Dr . Maswahu , a forensic pathologist . He found the cause of death to be hemorrhag ic shock as a result of gunshot injuries . He found that h e was shot 3 times at point blank range . Two of the shots hit h i m in the chest (from the front) , while the third hit him i n the back . In her defence , the appellant told the court that on 24 t h May 2016 , after knocking off from work , she informed her husband that she was going to join friends for a drink at O' haga n ' s Pub in Woodlands; he did not disapprove of it . That evening , she took alcoholic drinks from various places and through SMSs , she continually updated him of her whereabouts. At some point , she informed him that they had moved to Che z Ntemba Night Club and in turn , he informed her t hat h e wou l d join her there . JS He joined her at about 23 : 00 hours, but he did not stay long . He left and sent her an SMS informing her that she had to find her own way home . Thereafter, he sent her a numbe r o f SMSs that were in bad taste . One of them informed her that he would call her father . She sent him an SMS advising him not to do so , but not long thereafter , she received a phone call from her mother advising her to go home . She followed her mother's advice and went home. When she got home , she found her husband lying on a couch in the sitting room . He had also placed a gun on the table . She said she was apprehensive because he had a history of being violent . When she saw him go for the gun , she went for it as well and they ended up struggling for it . As they struggled , she heard a gunshot , the gun had discharged and shot him accidentally. She then saw him put his hand on the chest and start to advance towards her . He charged at her and they ended up struggling for the gun again. She was in fear and in the confusion , the gun J6 discharg ed again . She said she did not intentionally pul l the trigger. Her husband fell to the floor and she rus hed to inform his brother . She de n ied planning to kill him or threatening to shoot his brother. The brother attempted to disarm her and they ended up in a struggle becaus e she re fused to hand over the gun to him . It was because she feared that he would shoot her and she only handed over the , gun to h i m when she heard her son crying. The appellant ' s parents also gave evidence of the cal l t h ey received from thei r son-in- law and the cal l made by t he appellant after the shooting . The trial judge found that it was not in dispute that the appellant shot her husband in the early hours of 25 th May 2016 and that he died as a result of gunshot injuries that he suffered . She considered whether the appellant was provoked by any of the SMS ' s her husband sent her or the phone call he made to her father , she found that there was nothing wrongful with the call and that no reasonable person J7 would be unsettled by the possibility of being exposed through such a call . Consequently , she found that the de fence of provo c ation was not availab le to her . The trial judge also considered whether the defence o f intoxicat i on was available to the appellant . Though there was evidence that she had been drinking from 18 : 00 hours up to 01 : 00 hours the following morning , she found that t here was no evidence of how much alcohol she had taken or t h a t she became incapacitated as a result of the drinking . The trial judge noted that there was evidence that the appel lan t was abl e to respond to her husband ' s SMSs , communicate with her mother , call the maid , check on the baby and so o n . As a resu l t , she concluded that the appellant knew what she was doing and the defence of intoxication was no t availab l e t o her . The trial judge also ru l ed out the possib i lity that the appellant acted in self-defence when she shot her husband . She noted that there was no evi dence of any disturbance in J8 the room where the body was found and this ruled o ut t he possibility that there was a threat of being shot , whi ch was followed by a struggle that resulted in the shooti n g . She accepted the pathologist ' s evidence that the appe l lant ' s husband was shot when he was in motion . Having rejected the appellant ' s version of what happened in the house before the shooting , the trial judge found t ha t she intentionally shot her husband three times and t h at she had malice aforethought when she shot him . She f o und t he appellant guilty of committing the offence of murder , without extenuating circumstances and imposed the d e a th penalty . The appeal has raised three points of law . The firs t , i s that the trial judge wrongly placed the burden o f p rovi n g the defen c es of self-defence , intoxi c ation and provoca t ion , on the appellant. The second , is that the trial judge s h oul d have found that the defences of accident , provocat i on , se l f defence and in t oxication were available to the appel l an t . J9 The third, which is an alternative argument to the first and second , is that following the appellant ' s conviction , the trial judge should not have imposed the death penalty becaus e there were e x tenuating ci r cumstances anchored on the failed defences of provocat i on and intoxication . Before we deal wi t h these issues , we will address Mr. Ngoma ' s submissions that the trial judge should not have placed any reliance on the appellant ' s parents ' testimony because it was hearsay and that the trial judge made findings that were speculative . Mr . Ngoma ' s submitted that the trial judge erred when she re li ed on the testimony of the appellant's parents because ' it was hearsay . Mr. Masempela ' s response was that it was no t hearsay . We agree with Mr. Masempela ' s observation that the testimony of the appellant ' s parents was not hearsay evidence in so far as the duo told the court what their daught er told them . JlO Scrutiny of the judgment actually confirms tha t t he t r ia l judge considered their testimony in that cont e x t . Fu rther , other than finding that she made the calls , the tr i al j udge did not rely on what her paren ts said the appellan t told them in the phone calls . As r egards Mr. Ngoma ' s submission that the trial judge ' s finding that there was no struggle between the appe ll an t and her husband because the items on the table did n ot fa ll ; the couch did not move ; and the tiles bore no scratch ma rks , being speculative , in the case of Bwanausi v The People1 , it was held , inter alia , that : "Where a conclusion is based purely on inference that inference may be drawn only if i t is the only reasonable inference on the evidence; an examination of alternatives and a consideration of whether they or any of them may be said to be reasonably possible cannot be condemned as speculation . " It is common cause that the case against the appell a nt was anchored on circumstantial evidence because there was n o eye witness to the shooting . Examination of the judgment in the court below , indicates that there was a conflict between the Jll prosecution and defence witnesses , on the circumstances surrounding the shooting . To arrive at what could have happened , the trial judge was entitled to consider the veracity of the testimony of each of the witnesses on the basis of the other evidence before her . We find that such consideration and the conclusions she arrived at , thereafter , cannot be labelled and condemned as b eing speculative . Reverting to the lega l issues raised by the appeal , Mr . Ngoma submitted that the trial judge wrongly placed the burden o f proving the possib le defences on the appellant . He referred to the cases of The People v Austin Chisangu Liato2 and The People v Robert Phiri and Tenson Siagutu3 , and submi tted that in criminal cases , the burden of proof , on all issues , rests on the prosecution. They must be proved beyond all reason able doubt . He also submitted that even in the case of defences available to an accused person , the burden still res t s o n the prosecution to negat i ve t h em , it is never the du ty o f an accused person to prove them . J12 In response , Mr . Masempela referred to the case of Mwewa Murono v The People 4 and submitted that while the burden o f proof lies on the prosecution , the burden of adduc i n g evidence in support of any defe nce , rests on the accu s e d person . In the case of Kalaluka Muscle v The People5 , commenting on the onus once a de fenc e has been raised , Blagden JA , at page 214 , observed as follows : "there is no onus on an accused person to prove or establish any of these defences. The onus remains on the prosecution throughout to prove the accused's guilt as charged beyond reasonable doubt ; and it is for the prosecution to negative these defences when they arise . But naturally there is no onus on the prosecution to negative something that is not there . The defence must be raised . ............... " What is essential is that there should be produced , either from as much of the accused ' s evidence as is acceptable , or from the evidence of other witnesses , or from a reasonable combination of both , a credible narrative of events disclosing material that suggested provocation in law. If no such narrative is obtainable from the evidence , the jury cannot be invited to construct one. " Ordinarily , these special defences are specifically raised by or on behalf of the accused . But a defence may arise by J13 itself as a result of the evidence adduced before the court . In either event i t becomes an issue which the court must decide and the burden of proof in regard to i t is upon the prosecution to satisfy the court beyond reasonable doubt that the defence so raised cannot be maintained . " Further , in the case of Tembo v The People 6 , commenting on when a court can consider the availab ility of a defen ce , Baron JP , at page 290 , observed as follows : "To constitute 'evidence fit to be left to a jury ' for the purposes of section 13 (4) there must be evidence that the accused person ' s capacities may have been affected to the extent that he may not have been able to f orm the necessary intent , only if the evidence goes as far as this goes the question whether the accused did in fact have the intent fall to be considered , and i t is then for the prosecution to negative the possibility that he may not have had such intent ." In the case of Shel drake V opp7 ' Lord Bingham had the following to say on the evidential burden in relati on to defe n ces in criminal cases : " an evidential burden is not a burden of proof . It is the burden of raising , on the evidence in the case , an issue as to the matter in question fit for consideration by the tribunal of fact. If the issue is properly raised , i t is for the prosecutor to prove beyond all reasonable doubt , J14 that ground for exoneration does not avail to the defendant" It follows , that the prosecution ' s duty t o negative a def ence only arises , in cases where evidence suggesting that the defence may be available to an accused person , has been led . Such evidence does not need to prove the defence . All it needs to do , is to simply raise t he possibility of the defence being available . We will now consider whe t h er t he evidence before the trial judge could have established any of the defences. The first defence that Mr . Ngoma submitted on was the de fence of intoxication. He argued that there was misdirection when the trial judge found that the defence of intoxication was , not available to the appe l lant because she did not lead evidence of the extent to which she was drunk . In response , Mr . Masempela referred to the case of John Lubhozha v The People8 and submitted that in that case , composure and alertness , led the court to conc l ude tha t the defence of intoxication was not available . Having considered JlS the conduct of t h e appel l ant that e ven ing , the trial judge rightly rejected the defence of i ntoxication . The defence of in to xi cation , is set ou t in section 13 of the Penal Code. It provides t h at : "(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge. (2) Intoxication shall be a defence to any criminal charge if, by reason thereof, the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and- (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was by reason of intoxication insane , temporarily or otherwi se , at the time of such act or omission . (3) Where the defence under subsection (2) is established , then in a case falling under paragraph (a) thereof the accused person shall be discharged , and in a case falling under paragraph (b) the provisions of section one hundred and sixty-seven of the Criminal Procedure Code relating to insanity shall apply . (4) Intoxication shall be taken into account for the p u rpose of determining whether the person charged had formed any intention , specific or otherwise, in the absence of which he would not be guilty of the offence . (5) For the purposes of this section, " intoxication " shall be deemed to include a state produced by narcotics or drugs. " J1 6 In the case of Katundu v The People 9 , delivering the judgmen t of the Court of Appeal , Blagden CJ , at page 235 , stated that for t he defe n ce of intox ication to s ucceed , the court mus t be satisfied of two negatives : (1) that the accused was not so affected by intoxication that he did not know what he was doing or that he did not know it was wrong to do it .................. , ( 2) that the accused was not so affected by intoxication that he was incapable of forming any intention necessary to commit the offence ........ . He went o n to s ay that if the cou r t is not satisfied of both these ne g atives , then the defence of intoxication fails . Further , in the case o f Simutenda v The People10 , it was held , inter alia , that : "Evidence of drinking, even heavy drinking is not sufficient for intoxication to provide a defence under section 13 (4) of the Penal Code ; the evidence as a whole , including that of intoxication , must be such as to leave the court in doubt as to whether the accused actually had the necessary intent , namely in this case the intent to kill or to do grievous harm." J17 In this case , the trial judge concluded that the d efen ce 0£ intoxication was not available to the appel lant , though there was evidence that she had been drinking from 18 : 00 h ours up to 01: 00 h ours t he follo wing mo r ning . Th is is because there was no evidence that she became incapac itated as a result o f the drinking , so as not to know what she was doing . There was evidence befo r e her that the appellant was able to respond to her husba n d ' s SMSs , communicate with her mother , call the maid , check on the baby and s o on . Having considered the conduct of the appellant that night , we find that the trial judge rightly found t h at the de fe nce of intoxication was not available to the appellant . As was held in the cases of Simutenda v The People1 0 and John Lubhozha v The People8 , the d efence of i n to x ication c anno t merely be anchored on evidence that the appellant h ad been drinking the whole day . The evidence should have shown that she was too drunk that she did not know what she was do ing or that what s h e was doing wa s wrong a n d could not have formed the intention to kill her husband . J18 Coming to the defence of self - defence , Mr . Ngoma referred to section 17 of the Penal Code and the case of The People v Pelete Banda11 and submitted that the appel l ant ' s conduct should have been judged on the basis of the conduct o f a drunk person of her class . The trial judge did not do so . He then referred to the case of Rosemary Chibwe v Austin Chibwe12 and submitted that the finding that there was no struggle in the seating room should be set aside becaus e it was speculative and not supported by the evidence . Mr. Masempela referred to the case of Mudewa v The People13 and submitted that the appellant failed to lay evidence to successfully raise the defence of se lf -defence . The appellant did not meet the objective test of how a reasonable person would have reacted to the situation she found hersel f in. She used excessive force and the threat to her husband' s brother shows that she actually had malice aforethough t . On the duty on the prosecution to negative the defence of se lf- J19 defence , he submitted that it was negatived and the tria l judge did not come to conclusions that were specu lative . The defence of self - defence , is set out in section 17 of the Penal Code. It reads as follows : "Subject to any other provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property , or the person or property of any other person, if the means he uses and the degree of force he employs in doing so are no more than is necessary in the circumstances to repel the unlawful attack." In the case of The People v Pelete Banda11 , it was held tha t an act of self - defence consists of an attack by the accus ed person , who , on reasonable grounds , believes , that she wa s in imminent danger of death or serious bodily harm . In addition , the force used in that attack should be no more than is necessary to repel the threat she faces ; see the case of Mulenga v The People14 • In the case of R v Bird15 , it was held that in determining whether it was necessary to use force or whether the force that was used was reasonable , the J20 court will consider whether the accused person had the opportunity to retreat . We find that the trial judge was correct when she found that the defence of self defence was not available to the appellant. She found that contrary to the appellant ' s claim , there was no evidence of any struggle in the living room . That discredited the claim that the appellant and her husband struggled for the gun. As earlier indicated , the appellant was the only eye witness to the shooting and her evidence was that she found that her husband had placed a gun on the table . When she saw him attempt to pick it , she decided to pick it as well . They ended up struggling for it and it discharged accidentally, fatally wounding him . The trial judge did not find this explanation to be credi ble . In the light of the pathologist ' s finding that of the 3 gunshot wounds Akakanda Lubinda Li tebele suffered , one was J21 in the back, we find that the trial judge cannot be faulted for not accepting the appellant's explanation. It i s inconceivable that he would have been shot in the back if her husband was attacking her. The forensic evidence poin ts at the fact that he had his back to her when one of the shots was fired. As regards the defence of provocation , Mr . Ngoma referred to the case of Rosalyn Thandiwe Zulu v The People16 and submitted that in the face of evidence that her husband had previously acted violently towards her, the court shou ld have considered how a reasonable person , in her situat ion , would have reacted. Had she done so, the trial judge wou l d have found that the appellant was justified in believing that he was going to attack her and draw the gun . Instead of taking that approach, the trial judge speculated and ruled out the defence . He outlined observations by the trial judge that he considered speculative . There was also misdirection when the trial judge relied on the evidence g i ven by t h e J22 appellant ' s parents in assessing the appel lant ' s conduct because it was hearsay evidence . On the defence of provocation , Mr . Masempela submitted tha t the appellant failed to meet the test to successfull y set up that defence as set out in the case of The People v Pelete Banda11 ; the act of provocation and loss of self-control . She did not attack her husband immediately after the offens i ve SMS was sent and she had time to cool off. Fina lly , he submitted that the defence of accident is not availab le in the face of evidence that the appellant de lib erately pulled the trigger . Section 206 of the Penal Code, defines provocation , as follows: (1) The term "provocation " means and includes , except as hereinafter stated, any wrongful act or insult of such a nature as to be likely , when done or offered to an ordinary person , or in the presence of an ordinary person to another person who is under his immediate care , or to whom he stands in a conjugal , parental, filial, or fraternal relation, or in the relation of master or servant , to deprive him of the power of self-control and to induce him J2 3 to assault the person by whom the act or insult is done or offered. For the purposes of this section , "an ordinary person" shall mean an ordinary person of the community to which the accused belongs . (2) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give the latter provocation for an assault. (3) A lawful act is not provocation to any person for an assault . (4) An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault . (5) An arrest which is unlawful is not necessarily provocation for an assault , but i t may be evidence of provocation to a person who knows of the illegality . In the case of Simutenda v The People1 0 , it was held that t he defence of provocation consists of t h ree main elements ; t h e act of provocation , the lo ss of self- control both actual and reasonable , and retaliation that is proportionate to the provocation . These three elements must all be present fo r one to successfully raise the defence . The defence wil l not be ruled out merely because the provocative conduct h a s J24 extended over a p eriod of time or there was a delayed reaction to it ; see R v Ahluwalia1 7 • The appellant's evidence was that when she got home , she found that her husband had placed a gun on the table . They ended up struggling for it and it discharged accidenta lly . From this evidence, it is clea r that the shooting was not triggered by the SMSs sent by her husband or the phone call he made to her parents . We agree with the trial judge 's finding that the defence of provocation was not availab le to the appellant because her evidence was that the firearm accidentally discharged as they struggled for it. Corning to the defence of accident , Mr. Ngorna submitted that the state failed to negate the defence of accident by leading evidence establishing that it was intentional . It was wrong for the trial judge to find that the appellant intentiona ll y pulled the trigger and he referred to Section 9 of the Penal Code, urging us to find that t he killing was accidental . J25 The defence of accident , is set out in section 9 of the Penal Code. It provides as follows : "(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will , or for an event which occurs by accident . (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted , in whole or part, by an act or omission , the result intended to be caused by an act or omission is immaterial . (3) Unless otherwise expressly declared , the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility ." As earl ier indicated , the appellant was the only eye witn ess to t h e shooting and her evidence was that she found that her husband had placed a gun on the table . When she saw him attempt to pick it , she decided to pick it as well . They ended up struggling for it and it discharged accidenta ll y , fatally wounding him . The trial judge did not f ind t h is explanation to be credible . J26 In the light of the pathologist ' s finding that of the 3 gunshot wounds Akakanda Lubi nda Litebele suffered , one was in the bac k, we find that the trial judge cannot be fau l t e d for not accepting the appe l lant ' s explanation. I t i s inconceivable that he would have been shot in the bac k i f they were struggling for the gun in the manner described b y the appellan t. The forensic evi d ence points at the fac t t h a t he had his back to her when one of the shots was f ired . Consequently , we find that the d e fence of acciden t i s n ot available to t he appel l ant because they could not have be e n struggling f or the g un at the t ime she shot him . The t ri a l judge , cannot , i n the circumstances , be fau l ted for drawi ng t h e inference tha t she i n tentionally shot him . Al l in all , we find that the appeal against conviction fa il s . We find that the trial judge rightly found t h at the defen ce s of intox ication , provocation or self-defence were no t available to the appel l ant. We simil arly find that even if t he defence of accident had been raised , is was not available to her. J27 We will now deal with Mr. Ngoma ' s alternati ve argument which relates to the sentence. He argued that the trial judge e rr ed when she failed to find that the failed defences o f provocation and intoxication amounted to extenuating circumstances warranting the imposition o f a sentenc e o ther than the death penalty. He referred to Section 201 (1) (b) of the Penal Code and the case of Jack Chanda and Kennedy Chanda v The People19 . In res ponse , Mr. Masempela submitted t hat the case of Jack Chanda and Kennedy Chanda v The People1 8 , only held that in some cases , evidence of drinking can amount to an extenuat in g circumstance. In this case , the trial judge rightly found that it was not . He referred to the case of Jose Antonio Golliadi v The People19 and pointed out that in that cas e , it was held that the mere fact that one has been drinking does not automatically lead to a finding that there were extenuating circumstances ; there must be evidence t o supp ort the finding. J28 In the case of Jack Chanda and Kennedy Chanda v The People18 , it was held , inter alia , t h at a "failed defence of provocation ; evidence of witchcraft accusation ; and evidence of drinking can amount to extenuating circumstances . " It is our view , that a failed defence of self-defence , can e q ually amount to an extenuating circumstance . The ques t ion t h at then fol l ows , is , whe n can it be said that t here i s an extenuating circumstance because of the fail e d d ef ence o f provocation , self - defence or where there was evide nc e o f drinking? As indicated earlier on , the defence of provocation con s ists of three main elements ; the act of provocation , the l o ss o f sel f - control bot h actual and reasonable , and ret aliation that is proportionate to the provocation ; see Simutenda v The People10 . These three el e ments must all be pr e s e n t for one to successfully raise the defence . In our vi e w, a f a iled d e fence o f provocat i on b e comes an extenuating c i rcums t ance in cases whe re there is a provocative act and loss o f self - J29 control but the retaliation is not proportionate to the provocation . In this case , the trial judge did not find any provoca tive act that could have triggered the loss of self - control by the appellant and rightly so in our view . This being the case , there was no failed defence of provocation that could have been an e x tenuating circumstance. Coming to the failed defence of self - defence, in the cas e s of The People v Pelete Banda1 and Mulenga v The People14 it was held that an act of self- defence consists of t wo elements , the belief by the accused person she was in imminent danger of death or se ri ous bodily harm and the use of reasonable force to repel such an attack. The defence fails where there is reasonable cause to believe that t here is eminent da n ger of death or serious injury from an at t a c k but t h e force u sed to repel the attack is more t h a n reasonably necessary to do so . J30 In this case , the trial judge rejected the appellant ' s evidence that she was under attack. No t being under attack , the question of the de fence of self - defence and i ndeed a failed defence of self - defence , does not arise . We find that there could not have been extenuating ci r cumstances on the basis of a fai l ed defence of self - defence. In the case of Jose Antonio Golliadi v The People19 , Mu y ovwe , JS , delivering the judgment of the cour t , at page J13 , observed as fo l lows ; "we must emphasise that trial courts mus t be wary of finding drunkenness as an extenuating circumstance in every case where the offence is committed at a drinking place or where the accused claims he was drinking or drunk. i t is important to consider the peculiar facts instead of apply ing drunkenness as an extenuating circumstance in every single case which would lead to injustice" The starting po i nt when considering intoxication as an extenuating circumstance , is that an a c cused person mus t have been drunk . It is not enough t hat she was s een drinking o r spent a long time in a dr i nking p l ace . In this case, other than evidence that she was drinking , there was no eviden ce \ Bl that she was drunk at the time she shot her husband. We find that the trial judge rightly found that the re were n o extenuating circumstances on accoun t of the consumption o f intox i cating liquor . The appeal against conviction and the alternative appea l against senten ce , having failed , the appellant ' s conviction and the sentence imposed by the trial court , are upheld. DEPUTY JUDGE P ······~ ··············· ......... -\ .......... D. L. . ............. . COURT OF APPEAL JUDGE COURT 0