Kunda v People (Appeal 81 of 2017) [2018] ZMSC 45 (6 June 2018)

Y e IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APPEAL NO. 81/2017 BETWEEN: ------" . RODGERS KUNDA ... AND THE PEOPLE ~ APPELLANT I t _,r-.v \ RESPONDENT Coram: Phiri, Muyovwe and Chinyama, JJS, on 10th April, 2018 and 6th June , 2018 For th e Appellant: Mr. C. Siatwinda, Legal Aid Counsel For the Respondent: Mrs. M. Kapambwe-Chitundu, D e puty Chief State Advocate JUDGMENT MUYOVWE, JS, delivered the Judgment o.f the Court Cases referred to: 1. Edward Sinyama vs. The People (1993-1994) Z. R . 16 2. Esther Mwiimbe vs. The P e ople (1986) Z. R. 15 3. James Kape vs. The People (1977) Z . R. 19 4. ~oondo vs. The P~ople (1981) Z. R.1 302 5 . Whiteson Simusokwe vs. The People (2002) Z. R. 63 6. Liyumbi v s . The People (1978) Z. R. 25 7. Fumbelo vs. The People SCZ Appeal No. 476 of 2013 This appeal is against conviction and senten ce . The appellant, a h eadman of. Kachepeshi Village was conviGted by the High Court J1 sitting at Mansa of the offence of murder contrary to Section 200 of the Penal Code . It was alleged that on the 3 rd Septemb er , 20 12 at Mansa the app ellant murdered Peter Bwanga (hereinaft er called "the d eceased"). The facts established by the trial court wer e that on the 3rd September, 2 012 , the d eceased left home after 1900 hours to look for relish. Not long thereafter, h e was brought back in a vehicle driven by one Musen ge Musonda in a bad state as h e was bleeding profusely from head injuries. The deceased told his brother PW2 that the appellant hit him with a bamboo stick. Sadly, the d eceas ed passed a way on the 10th September, 2012. It was established that shortly after the incident, the appellant left for Congo only to return in April, 2013. On the 25th April, 2013 he approached Chief Kasomalwela with a request to meet the deceased ' s family to discuss the killing of the deceased. The Chief ' declined as tli.e matter was in the hands of the police and he • • • handed over the appellant to the police. According to the arresting officer, the appellant' told him that he had gone to. Congo because he was afraid t h a t the deceased's relatives would beat him. J2 The learn ed judge rejected the a ppellant's defence that the deceased went to his house around 03hours in a drunken state wh ere h e insulted him and threatened to burn his house . The learned Judge found that the a ppellant' s evidence was inconsistent and classified him as an untruthful witness because of the contra dictions in his evidence. The learned judge accepted that the statement made by the d eceased to PW2 that the app ellant assaulted him qualified as res gestae in terms of the case of Edward Sinyama vs. The People. 1 The learned judge found that malice aforethought had b een established as the a ppellant ought to have known that hitting the deceased with a bamboo stick on the h ead was likely to cause grievous bodily harm. The appellant was found guilty and sentenced to d eath. On behalf of the appellant, learn ed Counsel Mr. Siatwinda filed two grounds of appeal. In the first ground, Counsel a ttacked the learn ed trial judge for rejecting the appellant's defence of provoca tion . In the second ground, Counsel accused the trial court of failure to find a failed d efence of provocation as an extenua ting ' circumstance. J3 Rely ing on the case of Esther Mwiimbe vs . The People2 Counsel's a rgument in ground one 1s that the defen ce of provocation was available to the appellant. It was conte nde d that the appellant's evidence that the deceased wen t to his house around 03hours in a drunken state; that h e insulted him and threatened to burn his house; whe n the a ppellant came out of his house the d eceased attacked him forcing him to repel the a ttack by pushing him to the ground - all this amounted to provocation. It was s ubmitted that the trial court convicted the appellant on the ground tha t his evidence was inconsistent and untruthful yet we have guided in James Kape vs. The People3 and Soondo vs. The People4 that in certain cases accused p ersons would lie to save themselves and tha t it is necessary to consider whether the explanation given to the police by the accu sed could r easonably b e true. It was s ubmitted that the story given by the appellant to the police was essentially the same as tha t given to the court. Counsel • argued that sihce the appellant voluntarily gave an explan~tion to the police soon after appreh ension, we should accept his version as . being · reasonably true and fault the lower court for failing to consider and accept his vers10n . According to Counsel, the J4 appellant' s version satisfied all the ingredients of the defence of provocation and h e should, ther efore, have been convicted of the offence of manslaughter ins tead of murder. We were urged to quash the conviction of murder. In ground two, it was submitted, inter alia, t h at the defence of provocation having failed, the trial court s hould have found that this was an extenuating circumstance in line with the case of Whiteson Simuso kwe vs. The People .5 On the basis of this argument, we were urged in the alternative to find the appellant guilty of extenuated murder and quash the d eath sentence and impose an appropriate sentence . Mrs . Chitundu the learned Deputy Chief State Advocate filed h eads · of argument in r esponse which she relied on. In h e r written re sponse, learned Counsel submitted , inter alia, that there w as unchallen ged evidence that the appellant voluntarily approached ' the Chief with' the request to' have a m eeting with the deceased's I I family . Looking a t the evidence in the court below, Counsel took the view that the issue for determination is whether the appellant was provoked by the d eceased . Counsel cited numerous a uthoritie s JS in which we laid down the guiding principles on the defence of p rovoca tion which included the case of Liyumbi vs. The People. 6 Counsel pointed out that the post mortem report reveals that the cause of death was cardiac arrest due to intracranial hemorrhage which confirms that the appellant used excessive force. In ground two, it was submitted that there are no extenuating circumstances in this case. Counsel contended that the defence of provocation was not available to the a ppellant and, therefore, there are no circumstances affording extenuation to the appellant. It was submitted that the appellant h ad malice aforethought when h e injured the deceased in that h e ought to h ave known that hitting t he deceased with a bamboo stick four times (according to his warn and caution statement) could cause grievous h arm or death ~ We will deal with both grounds together as they are interrelated . • From the outset, we agree with learned Counsel for the partie s that the main issue for d etermination in this appeal is whether the d efence of provocation was available to the a ppellant. If we agree with Mr. Siatwinda that the appellant was provoked, in line with the ·. ·. . . J6 case of Simusokwe vs. The People5 then it follows tha t the failed d efence of provocation will afford extenuation in favour of the appellant. On the other hand, if we agree with the learned trial judge that provocation as a defence was non-existent, then the question of a faile d defence of provocation as an extenuating circumstance laid down in Simusokwe 5 case cannot arise. Having cons ide red the evidence in the court b elow, we take the view that the defence of provocation was not available to the appellant. This is in view of the fact that the learned trial judge accepted the evidence of PW2 that the deceased told him that it was the app ellant who hit the deceased with a bamboo stick on the h ead. The statement made by the deceased to PW2 properly qualified as res g estae as the d eceased was ·still in the thro'es of the event such that there was no opportunity for concoction or distortion of what had happen e d to him. The learned judge accept~d the evidencE1 of the Chiefs retainer who re.vealed tha t the' appellant approached the Chief to convene a meeting for him to discuss the k;illing of the dec,eased. In fact, a proper reading of the evidence points to the fact that the appellant admitted that h e killed J7 t h e d eceased and was re questing for a m eeting to discuss the matte r with the d ecea sed 's family . However, th e matter was in police hands h en ce the repor t by the Chief to the police . In rejecting the appellant's defence of provocation the le arned judge c onsider ed the a ppellant' s w arn and caution s tatem ent which wa s admitted in eviden ce at the instance of his own d e fence counse l in which he admitted hitting the deceased four times on the head with a bamboo stick. He claimed that this was after the deceased threatened to burn his house. He stated further that he ran away to Congo in fear of the deceased' s family though he ended up s eeking medical treatment. In fact before fleeing from the village , he claimed that h e could not visit the deceased b ecause h e was not r esponsible for his plight. The appellant even claimed that the decea s ed was alright as he had information that the following day he h a d gone to FRA to sell maize . The learned judge took the vie w, and we a gree with him, that if the deceased had attacked him and threatened him, he would have summoned him or reported the c ase t I to the chief and he would not have run away from the village. We . do not b elieve tha t h e was a victim as h e claimed in his tesdmony. J8 The b ottom line is that the a ppellant ga ve different versions of wh at h a ppe ned. In h is testim ony h e stated tha t h e never laid a finger on the deceased and th a t h e did not run away from t h e village in fe ar of the d eceased 's relatives . Clearly, the a ppellant chose to d e part from the d efen ce laid by his legal counsel who based his d efen ce and cross-examination on the warn and caution sta tement voluntarily given by the appellant. As we have observed, and the r ecord speaks for itself, that the appellant's counsel in the court below went to great lengths to ensure that the warn and caution stateme nt was admitted into evidence. Surprisingly, the appellant disowned the warn and caution state m ent when he took the stand claiming the police recorded it in English, a language h e did not understand. The learned trial judge rightly concluded that the appellant was an inconsistent and, therefore, an untruthful witness. In Donald Fumbelo vs. The People 7 we stated that: In trying to ascertain what weight should be attached to the testimony of a witness on a particular issue, an important factor that shopld be considered is the consistency of the testimony. Hence a lot of weight will be attached to the testimony if the witness starts showing at the earliest opportunity his version on J9 the issue. In the case of a witness who is an accused person, it is indeed very important that he must cross examine witnesses whose testimony contradicts his version on a particular issue . When an accused person raises his own version for the first time only during his defence, it raises a very strong presumption that his version is an afterthought and, therefore , less weight will be attached to such a version. Therefore, in a contest of credibility against other witnesses, the accused is likely to be disbelieved. The learned judge believed the testimony of PW2 and PW3 that the appellant had assaulted the deceased seriously and also that h e approached the chief with a view to amicably resolve issues relating to the death of the deceased with the deceased's family. As a village headman, his actions left much to be desired. He had the authority to summon the deceased to answer charges the foil owing day since he stated that the deceased went to his home and threatened to burri his house but instead he fled from the village which spoke volumes that he was not as innocent as he claimed. His own testimony before the trial court could not be believed and as an appellate couf"t w e have s tated in a plethora• of cases that we cannot fault a trial court which has had an opportunity to observe the demeanour of the witnesses before it. ' . JlO As we stated earlier, we h ave examin ed the evidence and the learned trial judge cannot be faulted for reaching the inescapable conclusion, after taking into account the circumstances of this case , that the a ppellant could not benefit from the defen ce of provocation as there was no provocation to talk about. In the same vein, once provocation is non-existent the holding in the case of Simusokwe vs. The People 5 does not apply. Before we end, Mr. Siatwinda also alluded to the cases of Soondo vs. The People4 and Kape vs. The People3 both on the principle tha t an accused person may t ell lies to save himself and that the court should not always conclude that he/she committed the offence . In the case of Kape vs. The People3 we held that: The lie told by the accused, where it is reasonably possible that he is lying for a motive which is consistent with his innocence, does not lead inevitably to an inference of guilt, and does not remove the necessity to consider whether the explanation he gave to the police could reasonably be true. I I In this case, the learned trial judge considered the evidence holtstically and rightly arrived at 'the only infere'nce which is that the appellant was guilty as charged. Jll . . The net result is that both grounds of appeal must fail and the appeal is dismissed accordingly. f 0 I!//' ' I ...,, .. , . . · · · · · · · · · · · · · · · · a:s ·il~~Ri · · · · · · · · · · · · · · · · A >........ \.., , . >-.. , ·· - ~"- ,· SUPREME COURT . JUDGE ...... ~·· ·-··· .. - -/' --- ~ E. N. C. MUYOVWE SUPREME COURT JUDGE I ! n i, i ' / \ \..) ' ...............•.••..• ··~ ·················· SUPREME COURT JUDGE AMA J12