Proby Munyati and 3 Ors v the People (SCZ APPEAL NO. 9/03/2020) (13 January 2021) – ZambiaLII

IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO. HOLDEN AT LUSAKA 9/03/2020 (Criminal Jurisdiction) BETWEEN: PROBY MUNYATI 1 3 JAN 2021 1 APPELLANT ST PHILIP SINYANGWE 2ND APPELLANT RABSON CHIPETA 3RD APPELLANT EUSTUS MWANSA APPELLANT 4TH AND THE PEOPLE RESPONDENT Coram: J. Chinyama JS in Chambers on 9th October, 2020 and on the 13th January, 2021. For the Appellant: Mr. K. Mzenga, Director, Legal Aid Board. For the Respondent: Mrs. M. Hakasenke-Simuchimba Senior State Advocate, National Prosecutions Authority RULING Cases referred to: 1. Ernest Mwaba v The People (1987) ZR 19 Rl This is the four applicants' application for leave to appeal to the Supreme Court pursuant to section 17(1)(b) and Rule 18(1) of the Supreme Court Act, Chapter 25, Laws of Zambia. The application which is by way of a summons and affidavit in support discloses that the four applicants were convicted of the offence of manslaughter upon their own admission to the charge and the statement of facts read in open court. The statement of facts established that the 1st 2nd and 3rd appellants were Correctional , officers at Serenje Correctional Facility. The 4th appellant was a prisoner designated as captain for a cell of prisoners at the facility. On 25th March, 2019 the deceased moved away from a party of other prisoners who were doing some work at Serenje Urban Clinic. He was picked up later by the 3rd appellant who found him in a drunken state and who took him to the Correctional Facility where upon arrival a fellow prisoner hit him on the nose and he started bleeding. The deceased became violent upon which the 1st and 2nd appellants kicked him in the legs. He fell down and hit the back of his head on the concrete floor and sustained a deep cut at the back of his head. The 1st and 2nd appellants then threw him into an office R2 where they took turns beating and kicking the deceased. Later the 3rd appellant beat up the deceased all over the body. The deceased was taken to the cell where the 4th appellant was superintending as captain. The 4th appellant whipped the deceased on the back. From these assaults the deceased sustained a bruised body, chest pains and head injuries after being beaten and he became weak and restless. In the early morning on 26th March, 2019 the deceased became unconscious. He was rushed to Serenje Urban Clinic where he was pronounced dead on arrival. On 30th March, 2019 a post-mortem examination of the deceased's body was conducted by Dr. Paulo Lermontor at Serenje District Hospital. The cause of death was found to be acute respiratory failure due to multiple blunt force head injuries, brain contusion, brain edema and lung edema. The post-mortem report was produced in support of the statement of facts and apart from confirming the stated cause of death, it was also found to contain a statement attributing the cause of death to beating/ poisoning and that blood and liver samples had been collected for confirmation or exclusion of poisoning. R3 Dissatisfied with the judgment of the High Court, the applicant appealed to the Court of Appeal on two grounds namely, that ( 1) the statement of facts, on which they were convicted, did not disclose any offence; and (2) that the sentence of 12 years imprisonment was excessive. The Court of Appeal held, in relation to the first ground, that the unlawful assaults by the appellants led to the death of the deceased and that it was immaterial that the appellants assaulted the deceased at different times or that other persons also beat the deceased as long as the cumulative effect of the assaults was his death. The case of Ernest Mwaba and 4 Others v The People1 in relation to the culpability of persons who participate in assaulting the deceased which results in death which cannot be attributed to only one of the assailants. The court also held, 1n relation to the cause of death, that although the pathologist indicated in his post-mortem report that "blood and liver samples" were collected for confirmation or exclusion of poisoning, his conclusion ultimately was that it was the assault that caused the deceased's death. R4 Turning to the 2nd ground of appeal, the court below considered that the offence involved a violent assault by Correctional facility Officers on a prisoner who was under their charge, that it was not clear, as I understood the court, why the 4th applicant assaulted the deceased. The court was of the view that the sentence imposed was deterrent. It concluded that the sentence did not come to it with a sense of shock as being excessive noting that the appellants were actually treated with a fairly high level of leniency. The Court of Appeal consequently found the appeal to be unsuccessful and dismissed it altogether. The appellants' application for leave to appeal against the judgment was refused by the court. It is against the foregoing holding that the applicants seek leave to appeal and have proposed four grounds of appeal as follows: 1. The learned Court below erred in law and fact when it held that the appellants were joint adventurers in the assault by relying on the case of Ernest Mwaba and 4 Others v the People (1987) ZR 19 when the facts are not on all fours. 2. The learned Court below misdirected itself in law and in fact when it relied heavily on the causes of death indicated in the statement of facts thereby glossing over the causes of death in the post-mortem report which stated as 'he was beaten, poisoning'. RS 3. The learned court below erred in law and fact when it ignored the fact that evidence of conclusive cause of death which was only available to the State was not presented before the trial court, thereby raising a presumption in favour of the appellants. 4. In the alternative to the three (3) grounds above, the learned court below erred in law and in fact when it found that the sentence of twelve (12) years imprisonment was not excessive in the light of the facts herein. The ground in support of the application before me disclosed in the summons is that the court below dismissed the applicants' application for leave to appeal without considering other grounds of appeal when looking at the prospects of the appeal succeeding. The learned Director of the Legal Aid Board, Mr. Mzenga, submitted that the proposed appeal has high prospects of success based on his view to the effect, as I understood him, that there is need for the Supreme Court to clarify whether a post-mortem report is part of a statement of facts when submitted in the manner done in this case. Further that, there is need for the Supreme Court to clarify whether isolated assaults on the deceased by the accused persons would make them joint adventurers executing a common unlawful purpose in the manner determined in the case of Ernest Mwaba and 4 Others v The People. Mr. Mzenga urged that I grant the applicants leave to RG appeal so that they may articulate these issues 1n the intended appeal. The application is opposed and Mrs. Hakasenke-Simuchimba argued orally against the application. The essence of the opposition is that the applicants have not demonstrated the prospects of their intended appeal succeeding in this case. She noted that the applicants had pleaded guilty to the charge and agreed to the statement of facts read to them in court. They did not raise any objection to any of what was read. The Senior State Advocate noted that the cause of death according to the post-mortem report was acute respiratory failure due to multiple blunt force head injuries, brain contusion, brain edema as well as lung edema. She stated that the report merely indicated that blood and liver sample were collected for confirmation or exclusion of poisoning. That even though the results were not brought back the pathologist still concluded as to what caused death in this case. In relation to the argument regarding separate assaults and whether the appellants were joint adventurers with a common unlawful purpose, Mrs. Hakasenke-Simuchimba, relying on the case R7 of Ernest Mwaba and 4 Others v The People1 submitted that although the applicants assaulted the deceased at different times, the cumulative effect was that the injuries sustained still led to his death. She seemed to be of the obvious view that there was no need to clarify the issues raised by Mr. Mzenga. In his reply to the learned Senior State Advocate, the learned Director pointed out that even though an accused does not raise anything in respect of a statement of facts, the law requires that the statement of facts must disclose the offence or the ingredients of the offence without which a plea of not guilty or an acquittal must be entered. With regard to the culpability of the appellants Mr. Mzenga insisted to the effect that this case is distinguishable from that in the Ernest Mwaba and 4 Others v The People1 case. He stated that the assaults were isolated by different people at different times, the last one being by the 4th appellant. The statement of facts and the post-mortem report were availed for my use in this application. I have considered the application and the arguments by Mr. Mzenga on one hand and Mrs. Hakasenke-Simuchimba on the other RS hand. The issue in the application is whether it has satisfied the criteria in section 13(3) of the Court of Appeal Act upon which leave to appeal to the Supreme Court may be grounded viz that: a) The appeal raises a point of law of public importance; b) It is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; c) The appeal would have a reasonable prospect of success; or d) There is some other compelling reason for the appeal to be heard. The issues in contention in this case are whether the offence of manslaughter had been proved in the light of the indications in the post-mortem report that death was by "beating/poisoning"; "respiratory failure due to multiple blunt head force injuries. Brain confusion, brain edema, lung edema." The pathologist had also indicated in the report that he had taken blood and liver samples to confirm or exclude poisoning. The impression I get from these observations is that the pathologist entertained the possibility that the deceased may have died as a result of poisoning. As Mr. Mzenga appears to suggest if the post-mortem report was part of the statement of facts, then there was uncertainty as to the cause of death. The issue is not so much in my view that of clarifying whether the postmortem report was part of the statement of facts. R9 There can be little or no question that it was. The issue is whether the offence of manslaughter was established given the manner in which the cause of death was indicated bearing in mind the basic principal of criminal liability which requires that the proof of the guilt of an accused person must be beyond doubt. On that basis, I am of the considered view that there is a compelling reason for the appeal to be heard and determined by the Supreme Court. I find that there is no merit in the argument that assaults on the deceased person were isolated such that culpability cannot be imputed on the individual perpetrators of the assaults if death was to be found to have been caused by the assault. The case of Ernest Mwaba and 4 Others v The People1 adequately addresses the issue raised by Mr. Mzenga. Ngulube DCJ, as he then was in that case explained the matter in the following terms: "Mr Luywa argued that, if the appellants did assault the deceased, then because several other individuals who have either not been prosecuted or convicted with them also participated, and in any event, there was no common intention to cause the death of the deceased. That being the case, then each participant, including the appellants, individually only committed an offence of common assault and that this would be the proper verdict in such a case, so the argument went. We have considered this submission and find RlO that it cannot stand. The deceased died as a result of the unlawful assaults and the offence cannot be a common assault simply because it is not known whose blow or blows proved fatal. Where joint adventurers attack the same person, then unless one of them suddenly does something which is out of line with the common scheme and to which alone the resulting death is attributable, they will all be liable. But where, as here, the assaults were of a similar nature involving the use of hands and whips only, so that it is impossible to attribute the death to the blows of any particular individual, then each adventurer has caused the death of the deceased within the statutory definitions contained in section 207(d) and (e) of the Penal Code." As I have said there is no merit in that argument. I, however, grant leave to appeal to the Supreme Court based on the reason earlier given. Delivered at Lusaka this 13th day of January, 2021. J. CHIN AMA SUPREME COURT JUDGE Rll