R v Chibabe Hangumba ((1963 - 1964) Z and NRLR 54) [1964] ZMHCNR 15 (5 March 1964)

R v CHIBABE HANGUMBA (1963 - 1964) Z and NRLR 54 1963 - 1964 Z and NRLR p54 [Before the Honourable Mr. Jus�ce CHARLES on the 5th March, 1964.] Flynote Murder and manslaughter - defences open to accused - when homicide is lawful. Headnote Hangumba was charged with murder. He raised the plea of self-defence. This defence in its applicability to homicide, and other defences to such a charge were considered by the learned judge. Held: The Crown had not sa�sfied the court that the accused did not kill the deceased in self-defence and the accused was acquited. Cases cited: (1) R v Rose (1884) 15 Cox 540. (2) Zabroni v R [1956] R & N. 195. (3) Chan Kau v Reginam [1955] 1 All ER 266. (4) R v Lobell [1957] 1 All ER 734. A B Mitchell - Heggs, Assistant Crown Counsel for the Crown F Chuula for the accused Judgment Charles J: The accused is charged with murder contrary to sec�on 177 of the Penal Code in that, on the 1st January, 1964, in the Mazabuka District, he murdered Eson Habanyama. [The judgment summarised the evidence and continued:] On the evidence I have no doubt that the accused on the 1st January, 1964, in the Mazabuka District, caused the death of Eson Habanyama by striking him with a knife and that the fatal blow was inflicted voluntarily by the accused, that is, consciously and in exercise of voli�on. If the evidence of the two principal witnesses for the prosecu�on as to the circumstances of the stabbing of the deceased by the accused is true, there can be no doubt that the accused is guilty of murder, as obviously he stabbed the deceased without legal jus�fica�on or excuse, with intent at least to cause grievous harm and without such provoca�on from the deceased as reduced the crime to manslaughter. The defence, however, is that, having regard to the accused's statements to the police, the evidence does not establish beyond reasonable doubt that the killing was not done in self-defence, and that, accordingly, the accused is en�tled to a complete acquital. A homicide is lawful if it is commited in preven�ng or resis�ng the commission of certain crimes in circumstances which render it either jus�fiable or excusable. When so commited the homicide is said to have been commited in self-defence, or more accurately by way either of public or of private defence. Jus�fiable homicide is homicide commited in the course of preven�ng or resis�ng the commission of treason or of a forcible and violent felony. Excusable homicide is homicide commited in the course of preven�ng or resis�ng the commission of an assault 1963 - 1964 Z and NRLR p55 CHARLES J or trespass which was not a forcible and violent felony. The other cons�tuent elements of each form of homicide are iden�cal, namely, that the accused did the act which caused the homicide in the honest belief that it was necessary in order to prevent or resist the commission of the crime in the course of which it was done, and the doing of the causa�ve act was reasonably necessary to prevent or resist the commission of the crime. Although the dis�nc�on between jus�fiable homicide and excusable homicide is based on an historical difference in their consequences which no longer exist, there is s�ll a theore�cal difference between them in the approach to the ques�on whether the causa�ve act was reasonably necessary. A person present at the commission of a treason or of a forcible and violent felony is not bound to retreat from the scene: on the contrary, his duty is to assist in the arrest of the offender (cf. Criminal Procedure Code, sec�on 27). On the other hand, the prospec�ve vic�m of an assault or trespass which is not a forcible and violent felony is under a duty to retreat, if that is reasonably possible, in order to avoid the commission of the assault or trespass upon him and is only en�tled to resort to force for that purpose when he is unable to retreat or to retreat further. Consequently, the availability of retreat is not a factor in determining whether the causa�ve act was reasonably necessary in order to prevent or resist the commission of a crime when the crime was a treason or a forcible and violent felony, but it is a factor in determining that ques�on when the crime was an assault or trespass which was not a forcible and violent felony. That difference between the two forms of homicide can s�ll be of prac�cal importance, perhaps. (See and compare as to the English law on the subject generally: Halsbury 3rd edi�on, Vol. 10 pages 721, 722; Turner's Kenny: Outline of Criminal Law, pages 111 - 114; Stephen: Digest of Criminal Law, 9th edi�on, pages 251 - 254 Archbold: Criminal Prac�ce, etc. 35th edi�on, pages 991, 999, 1000 paragraphs 2496, 2512, 2513; R v Rose (1884) 15 Cox 540; Zabroni v R 1956 R & N. 195 (FSC). As to the applica�on of the English law on the subject under the Penal Code, see sec�on 18 thereof). As both jus�fiable and excusable homicide are now lawful, and as a cons�tuent element of both murder and manslaughter is that the homicide was unlawful, the onus of proof in respect of a charge of either crime is upon the prosecu�on to prove beyond reasonable doubt that the homicide was not jus�fiable or excusable. (Chan Kau v Reginam [1955] 1 All ER 266 (P. C.).) The onus does not arise in the abstract, however. Its effect is that, when, but only when, there is evidence before the court indica�ng or sugges�ng as a reasonable possibility that the homicide was jus�fiable or excusable, the accused is en�tled to an acquital on that account unless the tribunal of fact is sa�sfied beyond reasonable doubt by the relevant evidence before it, considered as a whole and regardless of whether such evidence came from prosecu�on or defence witnesses that the homicide was not such. (R v Lobell [1957] 1 All ER 734 (CCA).) That means for prac�cal purposes that, whenever self- defence is set up on a proper basis in answer to a charge of murder or manslaughter it is sufficient for the prosecu�on's case if the relevant evidence establishes beyond reasonable doubt any of the following nega�ves, as that means 1963 - 1964 Z and NRLR p56 CHARLES J that one of the three posi�ve elements, all of which are necessary to cons�tute jus�fiable or excusable homicide, did not exist: (a) That the homicide did not occur in the course of the commission of a crime which was either treason, a forcible and violent felony or an assault or trespass which was not a felony of the kind last men�oned; (b) That the accused did not do the act which caused the homicide in an honest belief that it was necessary to prevent the commission of the crime in the course of which it was done; (c) That the doing of the causa�ve act was not reasonably necessary in order to prevent the commission of the crime in the course of which it was done, having regard to - the nature of the crime, the circumstances atending its atempted commission, and the nature of the causa�ve act itself, and, when the crime in the course of preven�ng which the causa�ve act was done, was an assault or trespass not amoun�ng to a forcible and violent felony, the opportuni�es, if any, which the prospec�ve vic�m had to discharge his duty to retreat out of danger, if possible, instead of doing the causa�ve act. The accused's second statement to the police, which was in amplifica�on of his first statement, indicates that all three condi�ons for rendering the killing jus�fiable or excusable existed here. Consequently, unless I am sa�sfied beyond reasonable doubt that it was false, and conversely that the evidence of the two principal witnesses for the Crown is true, the accused must be acquited completely, since the existence of any one of the three condi�ons has not been nega�ved. In weighing the credibility of the two principal witnesses for the Crown, I am en�tled to take into account that the accused has elected not to give evidence before this court, and has thereby rendered himself immune from cross - examina�on. The adop�on of that course is not evidence against the accused but it does add weight to the evidence of the two principal Crown witnesses by adding to the probability of its truth if that evidence is apparently credible. However, I am unable to regard that evidence as being apparently credible. [The judgment criticised aspects of the witnesses' evidence and concluded:] It follows that I am not sa�sfied that the accused did not stab the deceased in self-defence, and he will accordingly be found not guilty of both murder and manslaughter on the charge.