Yotamu Phiri v The People (Appeal No. 146/2022) (2 May 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.146/2022 HOLDEN AT LUSAKA and NDOLA (Criminal Jurisdiction) BETWEEN: YOTAMU PHIRI u2 MAY 2024 APPELLANT AL REGIS AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA ON: 17th May 2023 and 2nd May 2024 For the Appellant: D. Kabuka, Legal Aid Counsel, Legal Aid Board For the Respondent: A. Kennedy-Mwanza, Principal State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to : l . Benwa and Another v . The People [1975] Z.R. 1 2 . David Zulu V . The People [1975] Z.R. 13 3.Dorothy Mutale and Another v . The People [1995-1997] Z.R. 107 4.David Zulu v . The People [1977] Z.R. 151 5 . Saidi Banda v . The People, SCZ Appeal No . 144 of 215 J2 6. The People v . Njobvu [1968) Z.R. 132 7 . The DPP v . Lukwosha [1966] Z. R. 14 INTRODUCTION c11 The appellant appeared before the High Court (Makubalo, J . ) , charged with one count of the offence of murder, contrary to Section 200 of the Penal Code. He was also charged with three counts of the offence of attempted murder, contrary to Section 215 of the Penal Code. He denied t he charges in all the four counts and [21 the matter proceeded to trial . At the end of the trial, he was convicted of the (3J offences in all of the four counts . He was condemned to suffer capital punishment for [41 the murder . As for the three charges of attempted murder, he was sentenced to 15 years imprisonment, for each count, and the sentences are to run concurrently. He has appealed against all the convictions . [SJ J3 CASE BEFORE THE TRIAL COURT On 29th December 2017 , Belita Chibale who was in the CGJ company of a child named Julita Mbewe, arrived at her mother' s house in Sangulukani Village, in Vubwi . Her mother, Josphita Shema, was at the time married to the appellant . Later that day, she had supper with the appellant, c11 her mother and some other chil dren who were present . In the night, the appellant and Josphita Shema, ca1 retreated into the house where they were to spend the night . They retired with, Julita Mbewe, Madalesi Chibale and Kondwani Chibale . Just before sleeping, the appellant gave all the [91 children some soaked dry groundnuts to eat . Soon after eating the groundnuts, the children started complaining about stomach pains to the appellant . When the appellant was informed, he was indifferent . The following morning, Beli ta Chibale, who spent c101 the night in a different house within the same compound, went and knocked at the house where the appellant, her mother, Julita Mbewe, Madalesi Chibale and Kondwani Chibale, had spent the night. J4 She received no response but she could hear sounds of children crying in the house . The appellant eventually opened the door, Beli ta c111 Chibale found the three children, who were all weak, lying down . They had all vomited and they had running stomachs . She removed them from the house . She did not see her mother . c121 In the meantime, the appellant collected some water c131 and went to take a bath . On his return, Belita Chibale asked him where her mother was and he informed her that she had died. When she entered the bedroom, she found her mother dead. There wes vomit and faeces around her . The children were taken to a clinic where they were c14J treated for food poisoning, while a post-mortem determined that the cause of Josphita Shema' s death was an organophosphate called monochrotophos . On being questioned by the police, the appellant told c1s1 them that he had laced the groundnuts with poison to kill birds . However, in court he said he bought the groundnuts from a friend in Malawi and that he was not aware that they were laced with poison . JS c1GJ He also testified that after giving the children the groundnuts, he also ate some together with his wife . c1?J He said he suffered abdominal pains as well and had a running stomach . c1a1 The trial Judge rejected the appellants claim t hat he ate some of the groundnuts because he was not aware that they were poisonous . c191 She noted that all those who ate the groundnuts fell sick. She also noted that al though the appellant, who was in the same house with the children, claimed not to have heard them crying, a person who was outside the house did hear them crying . She also noted that the appellant claimed not to have c201 smelled the faeces yet they were all over the room where his wife was found dead. She concluded that the appellant deliberately [21i poisoned the groundnuts because he wanted to murder his wife and children . GROUNDS OF APPEAL The sole ground of appeal is that an inference that [221 the appellant murdered his wife and also attempted to kill the children, is not the only inference that J6 could have been drawn on the evidence that was before the trial Judge . CONSIDERATION OF APPEAL AND COURT'S DECISION Before we consider counsels' arguments on whether [23J the only i nference that could have been drawn on the evidence that was before the trial Judge was that the appellant murdered his wife, and attempted to kill his children, we are going to consider whether the charges of attempted murder were proved . The trial Judge indicated that she had no doubt that [24J the appellant gave groundnuts that were laced with a poison to the children to eat . The appell ant knew or ought to have known that eating such groundnuts, would cause death or grievous bodily harm. In the case of Benwa and Another v. The People1 it [2si , was held that in a case "of attempted murder, the charge is to attempt unlawfully to cause the death of another . There is no question of constructive malice in that case; it is necessary to find the actual intent to kill" It is our view that since actual intent must be [26J J7 proved, intention to kill in a charge of attempted murder cannot be proved through inferred int2nt. In this case, there is no evidence establishing t hat [27J the appellant did actually intend to kill the children . The trial Judge concluded that the appellant intended to cause the death of the children because he gave t hem groundnuts he knew were poisonous . In other words, she drew an inference t hat he [2BJ intended to kill them because he gave them poisonous ground nuts . In the circumstances of this case, that was erroneous . We therefore set aside the appellant' s conviction [29J for the three count s of attempted murder . We will, in due course, consider whether the evidence agai nst the appellant did prove any other offence . Reverting to the submissions in support of the [30J appeal, Ms . Kabuka argued that malice afterthought, an essential ingredient of a charge of murder, was not proved because there was no evidence showing that the appellant had any motive t o harm his wife . She also referred to the case of David Zulu v . The [31J J8 People2 and submitted that in absence of evidence of acrimony between the appellant and his wife, and there being no struggle marks, it is possible that the appellant ' s wife could have committed sui cide . That being the case, and on the basis of the of [32J Dorothy Mutale and Another v. The People2 she , submitted that since Josphita Shema could have committed suicide, the court should have drawn that inference, which was favourable to the appell ant . Finally, Ms . Kabuka argued that the charge of murder [33J was not proved because an inference of guilty is not the only inference that could have been drawn on the evidence that was before the trial Judge . In response to the sole ground of appeal , Mrs . [34J Kennedy- Mwanza submitted that the test set out in the cases of David Zulu v . The People2 and Saidi Banda v. The People4 for a conviction to be anchored , on circumstantial evidence, was met . In addition to the evidence that linked the appellant [3SJ to the commission of the offence, there were odd coincidences and in some cases, something more to warrant the conviction . J9 Mrs. Kennedy- Mwanza pointed out that despite [36J claiming that he also ate the groundnuts, the appellant was the only person who did not fall sick. The appellant also claimed he did not react to the soiled condition of his wife because he did not notice anything odd and yet there was faecal matter where he slept . Further, the appellant claimed that he did not hear [37J the children cry or show any concern when he was informed of their condition; he went on t o take a bath . Final ly, Mrs . Kennedy-Mwanza submitted that malice [3SJ afterthought was proved by the evidence showing that the appellant either intended to cause death or grievous harm, when he gave hi s wife and t he children poisonous groundnuts . The cases of The People v . Njobvu5 and The DPP v. C39J Lukwosha6 where referred to in support of the , proposition . Section 204 of the Penal Code, defines mali ce [40J aforethought in the following terms : JlO "Malice aforethought shall be deemed to be estabL:.shed by evidence proving any one or more of the following circumstances: (a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony." The trial Judge found that the appellant was aware [41J that the groundnuts were poisoned because all the persons who ate them became sick. Despite claiming that he ate some, he did not become sick. In the circumstances of this case, the trial Judge cannot be faulted for rejecting the appellant' s claim that he ate some of the groundnuts . Jll The argument that Josphi ta Shema may have cornrni tted C42J suicide is not plaus ible in the-face of evidence that the children a l so fell ill after eating groundnuts they were given by the appellant, and were treated for poisoning . That concl usion is untenable and consequently the C43J holding in the case of Dorothy Mutale and Another v . The People2 is inapplicable because an inference , that Josphita Shema committed suicide cannot be drawn on the evidence that was before the trial Judge . As indicated earlier on, the trial Judge cannot be C44J faulted for finding that the appellant did not consume any of the poisoned groundnuts . We equally find that she was on point when she found that the fact that he did not consume those groundnuts, was indicati ve t hat he knew that they would kill or cause grievous harm. Section 204 (b) of The Penal Code provides malice C4SJ aforethought can be proved by knowledge that the act will probably cause the death of or grievous harm to some person . This being the case, we find that malice aforethought was proved. J12 Considering all the circumstances of the case, C46J including the apparent indifference of the appellant on the mater ial day, we are satisfied that the trial Judge rightly came to the conclusion that the only inference that could be drawn on the evidence before her, was that the appellant murdered his wife . We find no merit in the appeal against that C47J conviction and we dismiss it . We will now revert to the evidence associated with [4BJ the three counts of attempted murder whose convictions we set aside . There is evidence that the children were treated for [49J poisoning, however there is no evidence of whether it is the same poison that killed their mother . Even if that was the case, the accepted evidence is that the children ate the groundnuts from the same source as those that their mother was given . After eating the groundnuts, like their mother, they C50J vomited and suffered diarrhoea . Fortunately they did not die . C51J Section 231 of the Penal Code sets out the offence J13 of Maliciously administering poison with intent to harm. It provides that : "Any person who unlawfully, and with intent to injure or annoy another, causes any poison or noxious thing to be administered to, or taken by, any person, and thereby endangers his life, or does him some grievous harm, is guilty of a felony and is liable to imprisonment for fourteen years. " In the absence of the actual intent to murder, we [521 still find that the evidence does prove that the appellant intentionally administered a poisonous or noxious substance on the children and they suffered grievous harm. In place of the three counts of attempted murder we [531 convict him of the offences of maliciously administering poison with intent to harm. VERDICT The appeal against conviction for the offence of the [541 murder is dismissed and the sentence is upheld . The appeal against conviction for the offences of [551 J14 attempted murder is allowed. However, the appellant is not acquitted but convicted of the lesser charges of maliciously administering poison with intent to harm contrary to Section 231 of the Penal Code. We sentence him to 5 years imprisonment with hard [SGJ labour for each count and the sentences are to run concurrent of each other . DEPUTY JUDGE PRESIDENT P.C.M. Ngulube K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE