Simwatachela and Ors v People (Appeal 21 of 1988) [1991] ZMSC 37 (31 May 1991)

IN HE SURR3C CORT OF ZAMBIA Appeals nos, 21 & 27/83 HOLDEM AT LUSAKA (Criminal jurisdiction) HUI YA MUTA8ALI SIMHATACHELA 1st Appellant PATRICK MUSIBA FELIX SIAMUTETE 2nd Appellant 3rd Appellant -V- THE PEOPLE Respondent CORAH: Hgulube, D. C. J/, Gardner* AJ. S. and Chaila, J.5. On 5th February and 31st May* 1991 For the appellant, Mr. C. M. Mudenda, Legal Aid Counsel For the respondent, Hr, G. S. Phlrt, Director of Public Prosecutions ’ ' V- JUDGMENT r 4 ->? ■ Ngulube, D. C. J. delivered the judgment of the court Case referred to:- 1) Patrick Kunda -v- The People (1930) ZR 105 The appellants were sentenced to undergo the extreme penalty in consequence of their conviction of a charge of murder. The particulars alleged that, they, on a date unknown, but between 4th and 11th November, 1985 at Chonga village in the Kalomo district, jointly and whilst acting together, murdered Peter Hwankenga. On 5th February, 1991 when we heard the appeal we allowed the appeals of the second and third appellants who were acquitted and set at liberty in respect of this matter. We said we would give our reasons later and this we now do. We also reserved the decision Ln respect of the first appellant whose appeal we deal with also. The prosecution case showed that the deceased and his father, PW4, were cattle buyers who had gone around the villages making purchases. They bought some animals from several people 2/,..including including the first appellant and at the material time PH4 sent his son, the deceased, to collect the animals purchased from the first appellant. The deceased never came back. His skeleton was found in the bush a few days later and he was identified by the clothing and his notebook in which he had recorded the names of persons who owed them animals which they had purchased. The postmortem report showed that the deceased had suffered six-inch long fractures of the left side, a fractured left upper jaw and fractured skull. The bicycle which the deceased had borrowed from PHI was nowhere to be seen but it was later recovered when the first appellant led the police to a stream where he had thrown it in the water. The only evidence against the second and third appellants who were implicated by the first appellant was that they were alleged to have made confession statements to the police and also that* when the police took them to the scene in the bush, they each had made a verbal confession when each picked up a stick and identified it as the stick he had used to beat up the deceased. The warn and caution statements to the police were the subject of a trial within the trial and, in a ruling which is uncharacteristic of this particular trial judge, they were admitted more or less summarily. The ruling consists of two sentences which read;- freely "Statements recorded /and voluntarily. Allegations of torture and improper conduct not proved." Mr. Mudenda in his challenge to the admission of these confession statements submits that the absence of a reasoned ruling has unfairly deprived the appellants of the opportunity to appeal against the ruling. Since this court is not in a position to resolve the matters of fact raised among other things, on the basis of credibility, Mr. Mudenda submits that the appeals should proceed on the basis that the confession statements must be excluded. He relies on our decision in Patrick Kunda -v- The People (1). Mr. Mudenda argued that without the confesssions, there is no other evidence upon which to convict. Mr. Mudenda was on firm ground and we agree with him. Indeed the learned director conceded these arguments. We have said many times before that a ruling on a disputed confession which has been the subject of voire dire should be adequate and should address the objections raised and all the allegations given 3/.....in evidence - 3 - in evidence* together with an indication of the decision reached by the trial court and the reasons for such decision. With regard to the alleged verbal admissions at the scene* these were deposed to without affording an opportunity to the accused persons to object and* as they were hotly disputed, they are intrinsically unreliable in the absence of a proper Inquiry at the trial. Of course, the fact that the first appellant implicated them was only evidence against him and not the co-appellants. It was for these reasons that we acquitted the second and third appellants, quashed their convictions and set aside the death penalty In relation to them. With regard to the first appellant, the prosecution had brought up a cireamstancial case which included the fact that his name was in the deceased's notebook and PH4 ^d sent the deceased specifi­ cally to see him; he led the police to/scene; but more Importantly he also led them to the stream where he had thrown the deceased's bicycle. There was also a warn and caution statement which was excluded in the judgment. Even more conclusively, there was his own evidence where he admitted that he was with the deceased In the bush and that they fought. In a nutshell, the first appellant does not seek to deny the responsibility for killing the deceased but argued that he acted in self defence or under provocation. According to the first appellant, when the deceased came to collect the animal he had bought, they went to look for It among the first appellant's cattle. Not finding it there, the deceased demanded a replacment or a refund. A fight erupted which according to the first appellant was started by the deceased who kicked him and struck him with a stick. The first appe­ llant fought back and felled the deceased to the ground. He left the deceased in the bush and went home. Later when he heard the deceased had died in the bush where he had left him, he went there with other villagers, and then panicked and went to throw the bicycle into the stream. Since no one else witnessed the fight, the question in this appeal was whether there was anything to disprove the defences. It is obvious that self-defence could not stand even having regard to the first appellant's own account; the two of them fought and he became annoyed after being attacked and hit back. It is apparent that the first appellant, on his own story, reacted to alleged provocation and not to any need for self-preservation. With regard to the defence of 4/* provocation 4 - provocation the learned Director of Public Prosecutions, argued that it could not avail because the first appellant was inconsistent in his explanation to the police and to the court and that the surrounding circumstances did not support him. It was pointed out that while the first appellant testified that he was alone when fighting the deceased, it was he who implicated the second and third appellants. Furthermore, according to the Director of Public Prosecutions, the fractures found on the skeleton indicated that the first appellant used excessive force and disproved his claim that he had only used his fists. The learned trial judge rejected the defence basically because be upheld the prosecution case that all the three appellants attacked the deceased with a view to robbing him of his money. That story only emerged from the confessions of the co-accused now excluded and which were, in any event, not evidence against the first appellant. The position, there­ fore, is that there is only the first appellant's eye-witness account and the question is whether, because the Injuries found showed that the the deceased received a vicious battering, provocation was not available. We bear in mind that the deceased allegedly himself first used a stick. The appellant most certainly used a stick or similar weapon in order to inflict the type of fractures found, However, what is not disputable is that the deceased died as a result of serious injuries inflicted by the first appellant. Since the first appellant may have used a stick of similar weapon to retaliate for a similar attack by the deceased, we entertain a doubt whether this response was disproportionate. Me resolve this doubt by upholding Mr, Wundenda's submission based on provocation, We mention in passing that if provocation had failed merely for excessiv e retaliation the present state of the law as recently amended would probably have resulted In a finding nonetheless that there were extenuating circumstances surrounding the murder. We allot/ the first appellant’s appeal against conviction, we quash the capital charge and set aside the sentence of death. In their place, we subsititute a conviction for manslaughter and Impose a sentence of seven years imprisonment with hard labour with effect from 13th November, 1986 when the first appellant was apprehended. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE 5/.......... B. T. Garden - 5 ■ ■ i 0. T. Gardner, ACTING SUPREME COURT JUDGE M. S. Chai la SUPREME SPURT JUDGE