KHUPE KAFUNDA Vs THE PEOPLE Judgment

No. 5 of 2005) Z.R. 31 (S.C.)

SUPREME COURT

SAKALA, C.J, CHIBESAKUNDA AND CITENGI JJS

7TH DECEMBER, 2004 AND 8TH JUNE, 2005

(SCZ) JUDGMENT NO. 5 OF 2005)

APPEAL NO. 21 OF 2004

Flynote

Criminal law - Mental capacity of accused - Distinction between mental condition at time of offence
and at trial.

Criminal law Unsoundness of mind at time of commission of offence - Onus to plead

Headnote

The appellant was sentenced to death following upon his conviction for the offence of murder
contrary to section 200 of the Penal Code, Cap 87 of the laws of Zambia. The court found that
circumstantial evidence against the appellant was so overwhelming that he had the opportunity and the
time to commit the offence. The court was satisfied that the appellant unlawfully, with malice
aforethought, caused the death of the deceased by shooting him at close range. The court convicted
the appellant accordingly. He appealed adducing evidence of unsoundness of mind sometime prior to
the incident.

Held:

1. There was no direct evidence and no eye witness to the incident that led to the death of the
deceased. However, the circumstantial evidence was so overwhelming and strongly connected the
appellant to commission of the offence.

2. There is fundamental difference between a decision as to an accused person’s mental capacity

at the time of the trial and his mental condition at the time of the offence; the one relates to a fair trial,
while the other relates to criminal responsibility.

3. The onus of establishing unsoundness of mind at the time of the commission of the offence is on
the accused.31
4. Unless an accused is mentally in a condition which enable him to make a proper defence, he will
not have a fair trial, and it is in order to protect him that section 160 of the Criminal Procedure Code
exist; but where he is able to make a proper defence and the only issue is what was his mental condition
at the time of the offence, it is for him to decide what the defence he wishes to put forward and
generally how he wishes to defend the matter entirely on the merits, without raising the question of
insanity, because this is his privilege.

Cases referred to:

1. Chabala v The People (1975) Z.R. 128

2. Chinyama v The People (1975)Z.R. 140

Legislation referred to:

1. Penal Code Cap 87, section 11, 200 and 306

2. Criminal Procedure Code Cap 88, sections 160 and 167

JUDGEMENT

SAKALA, C.J., delivered the Judgment of the Court.

The appellant was sentenced to death following upon his conviction for the offence of murder, contrary
to section 200 of the Penal Code, Cap 87 of the Laws of Zambia. The particulars of the offence alleged
that the appellant, on a date unknown, but between 27t and 29th January, 2001 at Mufulira, in the
Mufulira District of the Copperbelt Province of the Republic of Zambia, murdered William Hillier. The
prosecution called eight witnesses in support of their case. The salient evidence connecting the
appellant to the offence was adduced from PWs 1 and 7. The summary of their evidence was that on
27th January, 2001, the appellant, then an employee of Lake Farm, owned by the deceased, arrived at
the farm around 22:00 hours, when the deceases was about to retire to bed. After the two talked for a
while, the deceased went into the house and collected a coat, thereafter, he went out with the
appellant.

Pw1, the girl friend of the deceased, heard two gun shot sounds shortly after the two left the farm. On
that day, the deceased and the appellant did not return from where they went. By 17:00 hours the
following day, a Sunday, a search was conducted by the deceased's farm 32 workers who had become
concerned. At 18:00 hours the appellant appeared at the farm. When asked about the deceased, his
response was that he had left him in the bush because it was cold. A report was made to the Police.
Earlier searches conducted by the Police did not yield any results. However, on the 30th of January,
2001, after a tip off, PW7, a police officer, in a group of other officers, were led by the appellant to a
place where the body of the deceased was exhumed from a shallow grave.

The appellant further led the Police to Kafue River Bridge, where he alleged he had thrown the
gun in the river. He also led the police to the recovery of an empty cartridge in the grass near Kafue
River Bridge. The appellant's clothes were found in a bedroom at Lake View Farm together with three
live ammunition for a Greener gun similar to the empty cartridge. A post mortem examination report
revealed that the cause of death was gun shot wounds.

The appellant, who changed lawyers twice after the prosecution closed its case, gave a short
statement on oath which had nothing to do with the offence charged and which raised no defence to
the charge. The appellant, however called a witness, a Clinical Officer, Psychiatry, from Ndola Central
Hospital. This witness testified that sometime in 2003, he saw the appellant who complained of having
some insomnia for sometime which was on and off. He also complained of hearing strange voices and
feelings of unworthiness. According to this witness, the appellant complained of having these problems
for the past one year and nine months. The witness made findings that the appellant had withdrawal
symptoms from the substances he used to take in the past. He also experienced some hallucinations.
According to the witness, he prescribed some medication.

The trial court reviewed the evidence and made the following findings: that the circumstantial
evidence against the appellant was overwhelming; that the appellant was not only the last person to see
the deceased alive, but that he later led the Police to a shallow grave where the body was exhumed;
that the medical evidence established that the deceased had been shot at close range; that the
appellant later led the Police to Kafue River bridge to show them where he threw the gun; that an empty
cartridge was recovered in the grass near the bridge area; and that three live bullets similar to the
empty cartridge were found in the appellant's slumber jacket. The court found that the circumstantial
evidence against the appellant was so overwhelming that he had the opportunity and the time to
commit the offence.

The court was satisfied that the appellant unlawfully, with malice 33 aforethought, caused the
death of the deceased by shooting him at close range. The court concluded that the prosecution had
proved the case beyond reasonable doubt and convicted the appellant accordingly.

On behalf of the appellant, Mr. Sikwazwe read through arguments based on two grounds of
appeal which he said were prepared by the appellant himself. The first ground of appeal was that the
trial Judge erred in law and fact when she convicted the appellant on the ground that the circumstantial
evidence was so overwhelming and that he had the opportunity and time to kill the deceased. The short
arguments on this ground were that there was no direct evidence connecting the appellant with the
commission of the offence; that the learned trial judge had not indicated in her judgment what
constituted cogent and overwhelming circumstantial evidence; and that for some reason, not stated in
the judgment, the trial Judge chose to believe the evidence of the prosecution witnesses who merely
testified that it was the appellant who led the police to a place where the body was buried and
eventually exhumed. It was submitted that there were other persons who visited the deceased on the
farm on that fateful day, who equally had the opportunity and time to commit the offence. In response
to the arguments and submissions on the first ground, Mrs. Kaumba, the Deputy Chief State Advocate,
contended that the prosecution evidence was overwhelming. She pointed out that although there was
no eye witness to the incident, the strong circumstantial evidence connected the appellant to the
offence. Mrs. Kaumba further pointed out that the circumstantial evidence came from PW1, who was
the last person to see the deceased with the appellant and who, few minutes later, heard two gun shots.
She also pointed out that on 28th January 2001 the appellant came alone to the farm house and when
asked about the deceased, he responded that he left him in the bush.

Mrs. Kaumba further argued that there is evidence on record that about 38 officers twice we
went into the bush searching for the deceased. They combed the area for two days; but could not find
the deceased. She submitted that the deceased was only found when the appellant led the police to
where the body was buried. Counsel pointed out that there is also evidence that the appellant led PW7,
a police officer, to the recovery of an empty cartridge. PW7 also found three live ammunition in the
slumber Jacket of the appellant at the deceased's farm which matched the empty cartridge. Mrs.
Kaumba submitted that the appellant used the empty catridge. She also submitted that the medical
report established that the cause of death was gunshot wounds from a close distance.

The second ground of appeal was that the trial Judge erred in law and fact when she glossed over and
completely overlooked the evidence of the appellant's witness in so far as it related to the accused's
state of mind. In the written arguments, it was conceded that the witness called could not qualify as an
expert witness. The arguments on ground two were that from the evidence on record, it was clear that
at some stage during the proceedings, the appellant started showing and or exhibiting some abnormal
traits which tallied with the evidence of DW2. It was submitted that at that stage the court should have
noted the evidence of DW2 and should then have made an order that the appellant be mentally
examined to establish whether the appellant was fit to stand trial. It was submitted that this having not
been done, it was a misdirection on the part of the trial court.

Mrs. Kaumba respondent to ground two by arguing it in two parts, namely: whether the
appellant was mentally ill at the time of the trial; and whether he was mentally ill at the time he
committed the offence. Mrs. Kaumba indicated that both these questions are answered by the case of
Chabala v The People(1), which discusses the difference between the mental condition at the time of the
trial and at the time of the commission of the offence. She pointed out that the condition at trial, refers
to fair trial; while the condition at the time of the commission of the offence relates to criminal
responsibility. She submitted that the question of the mental capacity at the trial did not arise and the
trial court could not be criticized for not invoking section 160 of the Procedure Code relating to insanity.
She pointed out that the court was mindful that the appellant was deliberately using delaying tactics.
She also pointed out that according to the authority of Chabala, the defence of insanity should be raised
at the instance of the defence. Counsel also referred us to the case of Chinyama v The People (2) where
this court held that: "the onus of establishing unsoundness of mind at the time of the commission of the
offence is on the accused." Mrs. Kaumba, after also referring us to section 11 of the Penal Code,
contended that the appellant, who was ably represented by counsel, did not raise the defence of
insanity, and as such, he should have been of sound mind when he committed the offence. She
submitted that DW 2 was not called to give evidence of the mind of the appellant at the time of the
commission of the offence. She contended that the trial Judge rightly convicted the appellant. She
urged the court to uphold the conviction and dismiss the appeal. We have addressed our minds to the
evidence on record. We have examined the Judgment and considered the written arguments by 35 the
appellant read on his behalf by Mr. Sikazwe; and have also considered the arguments and submissions
by Mrs. Kaumba.

On the first ground of appeal, we agree that there was no direct evidence and no eye witness to
the incident that led to the death of the deceased. But we also agree with Mrs. Kaumba that the
circumstantial evidence as testified by PWs 1 and PWs7, was so overwhelming and strongly connected
the appellant to commission of the offence. The short evidence of PW1 is that the deceased and the
appellant left together on the night of 27th January, 2001. Shortly after the left, she heard two gun
shots. The appellant returned alone on the evening of the following day. On being questioned, he said
he left the deceased in the bush. Several searches by the farm workers and subsequently by a contigent
of police officers never found the deceased. PW 7, a police officer, testified that the appellant led them
to a shallow grave in the bush from where the body of the deceased was discovered. It is quite clear on
the evidence on record that without the appellant leading the police, the body of the deceased could
not have been discovered. When discovered, the body had gunshots wounds.

The evidence of PW7 goes further. The appellant led them to Kafue River Bridge where an
empty cartridge was discovered which matched with the three live ammunition found in the slumber
jacket of the appellant. In the fact of all this strong circumstantial evidence, the appellant denied being
involved in the killing of the deceased. We are satisfied that the conviction was properly founded. On
ground one, this appeal collapses and it is dismissed.

For the benefit of Legal Practitioners and the trial courts as well, we propose to address ground
two. The ground alleged that the trial Judge erred in law and fact when she glossed over and completely
overlooked the evidence of the appellant's witness (DW2) in so far as it related to the accused's state of
mind. DW2 was a Clinical Officer Psychiatry. As conceded, he was not called as an expert witness.
However, we take note that the record does not show that during the hearing of the prosecution case,
as well as the evidence of the appellant, the issue of state of mind of the appellant was ever raised.

In Chabala v The People (1) this court discussed the issue of the mental capacity of an accused
person. The facts of the case from the head note are that:

"The appellant was charged with criminal trespass contrary to section 36 306(a) of the Penal
Code. At the conclusion of the evidence for the prosecution, when the appellant went into the witness
box, the Magistrate almost immediately had doubts as to the appellant's mental condition and ordered
that he be examined by a psychiatrist. The psychiatrist gave evidence and thereafter the appellant
concluded his evidence. The Magistrate then made a special finding under section 167 of the Criminal
Procedure Code, namely that the appellant was not guilty by reason of insanity, and ordered that he be
detained during the President's pleasure in terms of that section.

Held:
 (i) There is a fundamental difference between a decision as to an accused person's mental
capacity at the time of the trial and his mental condition at the time of the offence; the one relates to a
fair trial, while the other relates to criminal responsibility.

ii) unless an accused person is mentally in a condition which enables him to make a proper
defence, he will not have a fair trial, and it is in order to protect him that sections 160 et seq. of the
Criminal Procedure Code exist; but where he is able to make a proper defence and the only issue is what
was his mental condition at the time of the offence, it is for him to decide what defence he wishes to put
forward and generally how he wishes to run his case. If he wishes to defend the matter entirely on the
merits without raising the question of insanity this is his privilege."

And in Chinyama v The People (2), we discussed the unsoundness of mind at the time of the commission
of the offence and on whom the onus lies. The facts of the case from the headnote are that:

"The appellant was convicted of murder. At the commencement of the trial Counsel for the
defence applied to have the appellant examined to determined his state of mind at the time of the
offence, and the court so ordered. The Psychiatrist's report certified that the appellant was fit to plead.
In another report the Psychiatrist gave it as his opinion that the appellant was not suffering from any
mental disorder at the time of the offence. Counsel for the defence cross-examined certain witnesses as
to whether the accused appeared normal, and in his final submission suggested that there was a
possibility that the appellant was suffering from some amount of disability.

In the judgment, the judge did not refer to the question of the appellant's state of mind at the
time of the commission of the offence. It was submitted that the failure to do so was a misdirection. 37

(i) the onus of establishing unsoundness of mind at the time of the commission of the offence is
on the accused.

(ii) there was no evidence before the court which could have justified at special finding under
section 167 of the Criminal Procedure Code."

These two authorities, decided by this court in 1975, thirty years ago, are still good law today on
the questions of distinction between mental capacity at the time of trial and mental condition at the
time of the offence; the defence of insanity not raised by the accused, whether competent for the court
to raise of its own motion; unsoundness of mind at the time of commission of the offence; and on whom
the onus lies.

In the instant appeal, the issue of state of mind at the time of commission of the offence was
never raised. What was raised, rather by the way, was the state of mind at the time of the defence case.
This evidence, which showed that the appellant is consuming hard stuff even now, could not assist the
appellant. This ground too collapses. The two grounds having failed, the whole appeal is dismissed.

Appeal dismissed