Simonga v People (Appeal 9 of 2006) [2007] ZMSC 186 (7 June 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) APPEAL NO 9/2006 BETWEEN: SILVER SIMONGA APPELLANT VS. THE PEOPLE RESPONDENT Coram: Sakala, CJ, Mumba, JS, Kaba lata, AJS 4th April, 2006 and 7th June, 2007 For the Appellant: Mr. E. M. Sikazwe, Deputy Director of Legal Aid For the Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions, Lusaka JUDGMENT Mumba, JS., delivered the Judgment of the court. List of Authorities referred to: Mutale and Phiri vs. the People [1995] ZR 227 SC. 2. 3. Regina vs. Ndhlovu [5 N. R. L. R. 298] Tembo vs. The People [1972] ZR 220 Regina vs Cabbage Mwialuka [L. R. NR Vol. l-iv.297] Legislation referred to: Section 205: of CAP 287, the Penal Code. This is an appeal against conviction and sentence. The appellant was convicted on one count of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws. The -J2- particulars were that appellant on 21st day of January, 2005 at Kabwe in the Kabwe District of the Central Province of the Republic of Zambia, did murder one Holly Hoare. He was given the death penalty. The facts were that the appellant and the deceased were separated having been married under customary law in 1996. They last co-habited in March 2004. The appellant had taken back some of the property he had paid to the family of the deceased in form of dowry. There was one surviving child between them, three others having died previous to the material date. Since separation, the deceased lived at Luanshimba farm, her parent’s home in Kapiri Mposhi, while the matrimonial home was in Ndola. The evidence relevant to the charge is as follows: On 21st January, 2005, PW2, Peter Simukoko saw the deceased at Mangala Guest House in Kapiri Mposhi early in the morning at about 07:30 hours. He had a conversation with her, she had told him that she was returning to the farm at 08:30 hours. PW2, who was working at the guest house returned to his work place and later he met the appellant who asked why PW2 had allowed the deceased to spend a night at the guest house. According to PW2, they checked in the registration bodk at the reception and found that she had booked room No. 7. The appellant entered the room. Later, PW2 saw them walking out of the room together going towards the Tazara yard. After a short time, the witness saw the Charalambous truck which the appellant used to drive, pass by, the truck was heading towards Kabwe, that was the last time PW2 saw the deceased alive. -J3- PW3, Winston Musonda, testified that on 21st January, 2005 whilst at Kakulu stream, in Kashikishi area, he was cooking nshima. He saw a Charalambous truck stop near the stream and the driver came out of the truck without a shirt, the driver was identified as the appellant. The appellant took a 20 litre container and drew water from the stream. He cleaned the truck thereafter the appellant called the witness and asked him to draw water and assist him to wash, the witness poured water over the appellant’s body. PW3 checked the cabin as the driver’s door was open, he saw a lot of water there. The appellant asked PW3 to draw water again and the appellant put the container inside the cabin. PW3 later went back to cooking nshima, the appellant left, returning towards Kapiri Mposhi where he had come from. After 30 minutes, PW3 saw the appellant driving back to Kabwe. According to PW3, he had spent about 15 minutes with the appellant though it took about 45 minutes for the appellant to leave. PW3 said that although it was the first time to see the appellant, he was able to identify him at the identification parade at Kapiri Mposhi Police station. PW4, Charles Ndasile, a charcoal burner, was shown a dead body by some children who were collecting mushrooms in the bush on 21st Januaiy, 2005 around 15:00 hours. The place where the body was lying was very close to the road, about five metres away. There were blood stains at the scene. The Police were later -J4- informed, they collected the body on the same day. The body was later identified as that of the deceased, Holly Hoare. PW5, D/Sub. Inspector Boniface Nchimunya of Kapiri Mposhi Police station, received a report of murder from PW4. He went to the scene with PW4 and collected the body which was later identified as that of the deceased. PW5 noticed 3 head injuries and an injury on the thumb. On the following day, 22nd January, 2005, PW5 accosted the appellant who was about to drive off in his truck. He apprehended him and asked him to drive his truck to the Police station. Appellant tried to run away but he was apprehended with the help of members of the public and later the truck was taken to the Police station. PW5 was present when another Police officer was searching the truck. Some photographs of the deceased were found, blood stains were also found inside the cabin on the sunflap. According to PW5, the appellant explained that he and the deceased had been fighting and that he had left her in the bush. PW6, Rosemary Hoare, a step-sister to the deceased, testified that the appellant and the deceased were married but later their marriage came to an end, the lobola was also returned. She said that the two had had differences for sometime over their son and it came to a stage that she, PW6 had to warn the deceased, as the appellant had written to the deceased saying that he was watching her movements, she advised the deceased to be careful. PW6 advised the deceased to get a restraining order. She said that the matter was in court for a restraining order when on 22nd January, -J5- 2005 she was informed by the Police about the death of the deceased. She went to the mortuary in the company of the Police and identified the body of the deceased. She noticed the injuries, one of which was at the back of the head, she saw that the brains were out. She also noticed a deep cut on the thumb and some small cuts on the thighs and legs. Later, she went to the Police station where she found the appellant. From the Police station, they all went back with the appellant to the scene. The appellant showed them where he had parked his truck and where he was beating the deceased. PW6 said that the appellant narrated how the deceased had jumped out of the truck he was driving. According to PW6, the appellant explained that after the deceased had jumped out of the truck she ran into the bush. He showed them where the grass was flat that that was the place where he had killed her and explained that after killing her he had dragged her body to the roadside. He showed them a stone which had blood stains with some hair and said that that was the stone he had used to kill her. The appellant led them to the stream where he had washed himself as well as the truck. The stone was identified in court by PW6. Later they all went back to the Police station. PW7, D/Sub. Inspector Gilbert Menda, testified that he conducted an identification parade on 25th of January, 2005 at I Kapiri Mposhi Police station. PW3 identified the appellant at the parade as the person he had assisted to wash at Kakulu stream on 21st January, 2005. -J6- PW8, D/Chief Inspector Sarmon Muleya, testified that he observed the body of the deceased and recorded the injuries. He later interviewed the appellant and inspected the truck. The appellant had explained to him that whilst he was fighting with the deceased she jumped out of the truck. This witness had also gone to the scene with the appellant where he was shown blood stains. The appellant ha.d told him that he had used a wheel spanner on the head of the deceased. He later arrested the appellant and detained him. PW8 picked up a homemade knife which had traces of blood stains,: a half pair of shoes and a stone which also had blood stains. He produced these items in the court below together with the post mortem examination report on the deceased by Dr. Tshimpanga. The postmortem examination report listed several injuries, a deep cut on the head with a broken skull, 3 other cuts on the head, a deep cut on the left cheek, an open fracture of the big thumb caused by a sharp instrument and a mouth full of blood. i • In his sworn evidence the appellant, a truck driver employed by Charalambous company, told the court that on 21st January, 2005, whilst in Kapiri Mpbshi in the course of his duties, he received a report from somebody he did not know that his wife was promiscuous and that she was at Mangala Guest House committing adultery. The report annoyed the appellant because according to him he was still supporting her financially. He proceeded to Mangala Guest House where he made enquiries from PW2, when he was shown the room, he went there and opened the door, a man came out and kicked him such that he fell down whilst the man ran away. Inside the room, he found the deceased naked, he was very annoyed. She got out of bed and got dressed. When he asked what she was doing, she never responded. The appellant stated that the man who had ran out of the room was dressed. Thereafter, the appellant and the deceased agreed to go home and discuss the matter with their parents. Later, they got into a truck and started off for Lusaka. In the truck, a quarrel erupted between the two leading to a fight. During the fight, the deceased held the appellant by his private parts whilst the vehicle was moving. He, in turn, slapped her intending to stop her from injuring him then he saw her open the door and jump out. He stopped the truck and followed her where she had jumped out but found her dead. He became scared, he removed her from the tarmac and put her by the side of the road. He then got back into the truck and drove in the direction of Lusaka. He noticed that the truck was overheating he packed his vehicle at Kakulu stream where he found PW3. The appellant asked PW3 to help him draw water which he used to cool the radiator. Later, appellant asked PW3 to clean the whole truck, afterwards he drove towards Kabwe. The appellant d,id not report the matter to the Police because he was afraid and confused. The learned trial Judge in the court below dismissed the testimony of the appellant as a pack of lies. He found that the appellant and the deceased were divorced in 2002. The learned trial Judge rejected the defence of provocation, he also rejected the evidence of a fall by the deceased as the injuries described in the post mortem examination report were not consistent with a fall. -J8- The learned trial Judge accepted the evidence of the prosecution, in particular that of PW6 and PW8, that the appellant had followed the deceased in the bush where he beat her using a stone. He found the appellant guilty of murder. There is one ground of appeal to the effect that the learned trial Judge in the court below fell into error when he convicted and sentenced the appellant to death for the offence of murder regard being had to all the attendant circumstances of the case. Mr. Sikazwe, appearing for the appellant, relied on the filed heads of argument and did not make any oral submissions. ( The gist of the appellant’s submission is that the circumstances of the case were such that the appellant was sufficiently provoked by the deceased and that the learned trial Judge in the court below should have accepted his explanation and should have found him guilty of manslaughter and not murder. Counsel relied on Section 205 of the Penal Code in advancing this ground of appeal and contended that the defence of provocation should have been accepted by the learned trial Judge because the circumstances in which the deceased met with her death were such that they fell within the provisions of this section. To buttress the submissions, the cases of Mutale and Phiri (1), Regina vs Ndhknm (2), Tembo vs. the People (3) and Regina vs. Cabbage Mwialuka (4) were cited. -J9- The Director of Public Prosecutions submitted that the conviction is supported on the evidence on record; it is not in dispute that the deceased died at the hands of the appellant, what was in issue were the circumstances. The learned Director of Public Prosecutions submitted that in his defence the appellant admitted beating the deceased when they were together in the truck, that after slapping her she jumped out of the vehicle, that as a result of the fall she died. The learned trial Judge did consider this evidence in the light of the postmortem report which showed that some of the injuries were caused by sharp instruments. The learned trial Judge found that the deceased died of injuries inflicted by the appellant. On sentence, the learned Director of Public Prosecutions submitted that there were no extenuating circumstances; the defence was that the deceased jumped out of the vehicle hence her death; it could not be argued that there were extenuating circumstances as there was no evidence of provocation which failed; the only evidence of provocation could have been that the deceased booked a room at Mangala Guest House; mere booking of a room cannot be a basis for provocation. The learned Director of Public Prosecutions submitted further that, in any case, PW2 did not talk of another man being present in the room, there was, therefore, no evidence for any basis for extenuating circumstances. -J10- We are grateful to both counsel for their submissions. We have read the appellants submissions and we have considered the authorities cited. We have looked at the legislation cited, we are of the view that, even if the explanation of the appellant were to be accepted, it would amount to stretching the defence of provocation outside the legal limits. Section 205 of the Penal Code, Chapter 87 of the Laws reads as follows: (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion, caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only. (2) The provisions of this section shall not apply unless the court is satisfied that the act which causes death bears a reasonable relationship to the provocation. The wording of Section Section 205 (2) is that there has to be a reasonable relationship between the provocation and the act which causes death. In this appeal, the appellant advanced the defence of provocation, he testified that he was insulted by the deceased, then he slapped, her, she squeezed his private parts. These events might have been essential features of provocation, unfortunately, this was not put to prosecution witnesses, in particular, PW6 and PW8, whether or not the appellant had told them that the insults and the squeezing of the appellant’s private parts were the incidents that led to the appellant’s provocation. Such an -J11- omission only leads to the conclusion that the defence put forward was an afterthought. PW6 gave details of the explanations of the appellant at the scene, her evidence was not challenged on material details hence the defence of provocation could not be sustained. The evidence of PW8 was also detailed, in fact this witness did say that the appellant had told him that he used a wheel spanner to hit the deceased on the head. Whether the deceased’s head was crushed with a stone or a wheel spanner is neither here nor there. What is clear is that what the appellant did bore no reasonable relationship to the provocation he alleged. The trial Judge was, therefore, entitled to reject the explanation of the appellant. On the cases cited by the appellant, it is also clear that none of them are similar in material particulars to the case of the appellant. The case of Mutale (1), cited in support of the submission on the correct approach when drawing inferences against or in favour of the accused person, can be distinguished from the case on appeal, in that the Mutale case involved mob assaults at two different places on the same day when the deceased was found dead after the second incident at a different place from where the first assault had taken place. In that case, the evidence was not clear whether the deceased was the same person who was beaten in the first incident albeit at a different location. In this appeal, the evidence that the deceased was in the company of the appellant up to the time of death is watertight. There was no basis, therefore, for drawing any inferences either way. As for the other cases of Regina vs. Ndhlovu(2), Tembo vs the -J12- People (3) and Regina vs Cabbage Mwialuka(4), the material difference is that the evidence of the actual provocation on the accused persons was accepted whereas in this appeal, appellant’s explanation of the conduct of the deceased or,on insults allegedly uttered by the deceased,was- an afterthought which was correctly rejected by the learned trial Judge. The learned trial Judge in the court below found that the deceased was in the company of the appellant immediately before her death. The evidence of the appellant also placed him on the scene of crime. » * We also note that the activities of the appellant soon after the death of the deceased amount to evidence in support of guilt. No explanation was given by the appellant for bathing and washing his truck at Kakulu stream. These activities at the material time were not part of habit on his part during that period. To crown it all, the evidence of PW3 was not challenged. The appellant admits fighting the deceased and handling the dead body thereafter. The severe injuries on the postmortem examination report are not consistent with 3. fall. In all, appellant’s conduct after the crime is consistent with guilt. From the evidence of injuries found on the deceased, it is clear that the appellant attacked and killed the deceased with malice aforethought. The learned trial Judge in the court below properly convicted the appellant. The appeal against conviction is dismissed. -J13- On sentence, there is no evidence available to us to allow us to disturb the sentence by the court below. The severity of the injuries demonstrate malice aforethought which the learned trial Judge in the court below found. We agree with the learned Director of Public Prosecutions that there were no extenuating circumstances. The appeal against sentence fails and it is dismissed. We uphold the conviction and sentence in the court below. E. L. SAKALA CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE ACTINGSUPREME COURT JUDGE