Jackson Phiri and Anor v The People (APPEAL NO:39/2023; APPEAL NO:40/2023) (26 February 2025) – ZambiaLII

I N THE COURT OF APPEAL OF ZAMBIA APPEAL NO:39,40/2023 HOLDEN AT NDOLA (CRIMINAL JURISDICTION) BETWEEN: JACKSON PHIRI 1 APPELLANT ST FELESIYA TEMBO 2ND APPELLANT AND THE PEOPLE RESPONDENT Coram: Mchenga, DJP, Ngulube and Chembe, JJA On 18th February 2025 and 26th February 2025 For The Appellant: C. Banda-Kainga, Legal Aid Counsel, Legal Aid Board For The Respondent: S. Siafwa, State Advocate, National Prosecution Authority J U D G M E N T Mchenga DJP, delivered the judgment of the court Cases referred to: 1. Mbomena v. The People (1967] Z.R. 89 2. R. V. Byrne 44 Cr .App.R. 246 3. R. V . Seers (1984] 79 Cr.App.R. 261 4 .The People V. Mwaba [1973] Z.R. 271 5. Khupe Kafunda V . The People [2005] Z.R. 31 Legislation Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia J2 1. 0 INTRODUCTION 1 .1 The appellants appeared before the High Court (Mweemba, J.), jointly charged wi th the offence of murder contrary t o Section 200 Of the Penal Code. 1 .2 They denied the charge and the matter proceeded to trial . At the end of t he trial, t hey were found guilty of committing t he offence and both sentenced to l ife imprisonment . 1 . 3 The have appealed against t heir convi ctions. 2 .0 CASE BEFORE THE HIGH COURT 2 .1 Before the commencement of t he trial, in line with Section 16 0 of the Criminal Procedure Code, the appellants were subjected to medical examination to determine whether t hey could defend themselves . 2 . 2 The psychiatrist who examined t hem found that they both suffered from epilepsy, a neurological condition. Since epilepsy was not a mental illness , he concluded they could s t and trial as they were able to defend themsel ves. 2 . 3 On 28th March 2022, around 12 : 00 hours, Lackson Phi ri , J3 of Nkundye Village in the Kalindawalo Chiefdom, of Petauke, was visited by the appellants who are his grandchildren. 2 . 4 The 1st appellant was armed with an axe, while the 2nd appellant was armed with a hoe. The 1st appellant broke the door to their grandfather's house, and the two appellants got into his house and hacked him with the implements they were carrying. 2 . 5 When he was dead, the 1st appellant pulled his body out of the house, and declared that he had killed a wizard. It is common cause that the appellants had previously accused t heir grandfather of bewitching them. 2 . 6 In his defence, the 1st appellant told the trial Judge that in the year 2021, he was diagnosed with a medical condition which resulted in him experiencing blackouts. With the blackouts, he would become violent and lose consciousness. 2.7 After regaining his consciousness, he would find himself tied up and he would not recall what had happened. J4 2 . 8 He recalled that on 28th March 2022, he headed towards his grandfather's house in the company of the 2nd appellant. He had no recollection of what happened thereafter. He denied having ever accused his grandfather of having bewitched him. 2. 9 The 2~ appellant's evidence was that on 27~ March 2022, she went to church. Later that afternoon, she started feeling weak and she decided to sleep. When she woke up, it was the following day, and she found herself at Petauke Police Station. 2. lOShe denied killing her grandfather and said she had no recollection of what happened. 2 .llThe trial Judge accepted the psychiatrist's opinion that the appellants suffered from epilepsy, a neurological condition. He concluded that the defence of insanity was not available to them because they did not suffer from a mental illness. 3.0 GROUND OF APPEAL AND ARGUMENTS BY COUNSEL 3.1 The sole ground of appeal is that a proper assessment of the evidence before him, would have led the trial Judge to find that the defence of diminished responsibility, was available to the appellants. JS 3 .2 Mrs. Banda-Kainga referred to the case of Mbomena v. The People1 and submitted that although the , appellants did not raise the defence of diminished responsibility, the trial Judge was obliged to consider its availability because of the evidence that was before him. 3 .3 She submitted that in the face of the psychiatrist's evidence that the appellants suffered from epilepsy, which may have been responsible for their aggressive behaviour, the trial Judge should have invoked Section 12A of the Penal Code, and found them guil ty of the offence of manslaughter on the basis of diminished responsibility. 3 .4 Opposing the appeal, Mr. Siafwa referred to the cases of R. v. Byrne2 and R. v. Seers3 and submitted that epilepsy was not a disease of the mind and as a such, the defence of diminished responsibility as set out in Section 12A of the Penal Code, is not available to the appellants. 4 .0 CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT 4 .1 The defence of diminished responsibility is set out in Section 12A (1) of the Penal Code. It reads as follows: J6 Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or is i nduced by disease or injury) which has substantially impaired his mental responsibility for his acts or omissions in doing or being party to the killing. 4 .2 To successfully rai se this defence, evidence must be placed bef ore t he trial court, proving that the accused person suffers from an abnormality of t he mind which impair s his ment al abi lities . 4 .3 In t he case of The People v. Mwaba4 Scott, J. , , dealing wi th a case where the defence of insanit y was being canvased, expressed the vi ew t hat where t he state of t he mind of an accused person i s in i ssue , i t is desirable t hat t he persons who t estify in the accused person' s f avour , include a qual ified medical practitioner who examined him. 4 .4 Since dimi nished r esponsibility is concerned with t he state of t he mi nd of an accused per son , i t i s our vi ew t hat whenever it comes up for consideration, there must be medical evidence to support it. A cour t cannot wholly rely on evidence from laymen, as Mrs. Banda-Kainga seems to suggest , when she submitted J7 that the appellants gave evidence that the epilepsy they were suffering from, triggered their violent conduct and that they had no control of it . • 5 In this case, the psychiatrist who examined the appellants did not indicate that their violent conduct could have been triggered by the epilepsy that they suffered from. 4 .6 In the case of Khupe Kafunda v. The People5 the , Supreme Court held that the onus of establishing unsoundness of mind at the time of the commission of an offence, is on the accused person. It follows, that an accused person who is canvasing the defence of diminished responsibility, has the onus of placing before the court, evidence that supports the defence. 4 .7 In this case, no such evidence was placed before the trial J udge. The consultant psychiatrist, through a report tendered into evidence at the commencement of the trial, found that the epilepsy the appellants suffered from was a neurological condition that was not associated with any mental condition. J8 4 .8 He went on to say that the most probable cause of the appellants attacking their grandfather, was their belief that he was responsible for their condition through witchcraft . . 0 VERDICT .1 We find no merit in the appeal as there was no evidence before t he trial Judge, that warranted his considering the availability of the defence of diminished responsi bility. 5 .2 We dismiss the appeal and uphold the decision of the High Court. DEPUTY JUDGE NT .....................~ mk. ............... P.C.M. Ngulube Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE