KALONGA v THE PEOPLE (1976) Z.R. 124 (H.C.) HIGH COURT CULLINAN, J9TH APRIL, 1976 NO. HLA/3176

Flynote

Criminal law - Possession of property reasonably suspected of having been stolen or unlawfully obtained - Explanation by accused - Test to be applied .

Headnote

The appellant was convicted by the Subordinate Court of the First Class in Livingstone of being in possession of property reasonably suspected of having been stolen or unlawfully obtained contrary to section 319 (a) of the Penal Code, Cap. 146.

The magistrate having observed that the prosecution must establish possession and grounds for reasonable suspicion before any burden falls upon the accused, found that the accused failed to give a satisfactory account as to how he came to possess the property. He disbelieved the accused and his two witnesses.

Held:(i) The test to be applied where an accused person is found to be in possession of goods suspected to have been stolen at some time cannot be less favourable to the accused than where an accused is found to be in possession of goods proved to have been recently stolen.

(ii) That test is, that an explanation which might reasonably be true entitles an accused to an acquittal even if the court does not believe it; an accused is not required to satisfy the court as to his innocence but simply to raise a reasonable doubt as to his guilt.

Cases cited:

(1) Director of Public Prosecutions v Chirwa (1968) S.J.Z. 49.(2) Maseka v The People (1972) Z.R. 9.(3) Abdulrehman v R (10) 20 EACA 246. 20

Legislation referred to:

Penal Code, Cap. 146, s. 319 (a).

Judgment

CULLINAN,J.:

The appellant was convicted by the Subordinate Court of the First Class for the Livingstone District of being in possession of property reasonably suspected of having been stolen or unlawfully obtained contrary to section 319 (a) of the Penal Code. Section 319 of the Penal Code in part reads:

"319. Any person who shall be brought before a court charged with -

(a) having in his possession anything which may be reasonably suspected of having been stolen or unlawfully obtained;

. . .and who shall not give an account to the satisfaction of such court of how he came by the same, is guilty of a misdemeanour."

The learned trial magistrate correctly observed that the prosecution must establish possession and grounds for reasonable suspicion before any burden falls upon the accused. He then observed:

"The prosecution having discharged their burden to my satisfaction, it now remains for the accused to discharge his statutory burden, that of giving his account to my satisfaction as to how he came to possess the money."

The above phraseology is somewhat unhappy: having merely established a prima facie case the prosecution had not discharged its overall burden of proving, the guilt of the accused. The following passages are to be found further on in the learned trial magistrate's judgment:

"On the defence's evidence I am afraid that the accused has not discharged his statutory burden placed on him. He failed to give me a satisfactory account as to how he came to possess the money.

Having had a close look at the two defence witnesses and the accused I find that I cannot believe their story. This is a concocted story tailored in order to help the accused from this trouble." In the Court of Appeal case of Director of Public Prosecutions v Chirwa [1] at p. 51 in delivering the judgment of the Court of Appeal, Doyle, ACJ. (as he then was), observed:

"It would indeed be strange if the burden placed on person accused of possession of goods reasonably suspected of being stolen was higher than the burden of explanation, if it may be described as such, which is on a person who is found in possession of goods proved to be recently stolen."

While I consider that the learned trial magistrate did not regard the burden upon the appellant as being in any way burden of proof, nonetheless he seemed to have set the burden at level higher than the burden of explanation involved in the so-called doctrine of recent possession. Baron, J.P. (as he then was) observed in the Court of Appeal case Maseka v The People [2] at p. 13:

"even in the absence of any explanation, either at an earlier stage or during the trial, the inference of guilt cannot be drawn unless it is the only reasonable inference to be drawn front all the

circumstances. One further question arises in the present case. The magistrate rejected the appellant's explanation because of the discrepancies to which he referred, as a result of which he disbelieved the appellant; as my brother Gardner has pointed out, the magistrate misdirected himself on the facts, but the matter goes further. An explanation which might reasonably be true entitles an accused to an acquittal even if the court does not believe it; an accused is not required to satisfy the court as to his innocence, but. simply to raise a reasonable doubt as to his guilt. A fortiori, such a doubt is present if there exists an explanation which might reasonably be true; for the court to be in doubt does not imply a belief in the honesty generally of the accused nor in the truth of the particular explanation in question."

That is the test to be applied where an accused person is found to be in possession of goods proved to have been recently stolen; the test to be applied where an accused is found to be in possession of goods suspected to have been stolen at some time cannot be less favourable to the accused. Indeed the passage from the judgment of Abdulrehman v R [3] at p. 248 quoted by Doyle, ACJ, in Chirwa at p. 51 refers to "an explanation which may reasonably be true".

In the present case the learned trial magistrate made no finding as to whether the appellant's story could reasonably be true or whether on the totality of the evidence the only reasonable inference was the guilt of the appellant. The appellant's explanation for the possession of K55 in 5 ngwee coins was that he had won some K39 in gambling with his own K16 at machines in a casino at Livingstone during two separate gambling sessions. A casino cashier testified that customers usually changed their winnings in coins into currency notes. He did not recollect seeing the appellant at the casino. The appellant explained that he decided to retain the coins as they would be of use in his trade as a fishmonger. Two defence witnesses corroborated his evidence of winning money at the casino. While I appreciate that the learned trial magistrate had cause to disbelieve the appellant and his two defence witnesses, nonetheless on the totality of the evidence I am not satisfied that had he applied the test laid down in Maseka he would inevitably have found that the only reasonable inference was the guilt of the appellant. I consider it would be unsafe to allow the conviction to stand. The finding and sentence of the court below are set aside and the appellant is acquitted.KAMPAFWILE v THE PEOPLE (1972) Z.R. 242 (H.C.)

HIGH COURT CHOMBA, J.11TH AUGUST, 1972(CRIMINAL APPEAL NO.HNA185 OF 1972)

Flynote

Criminal Law - Evidence - Confession - Admissibility of - Objections to confession.Criminal Law - Theft - Recent possession -Possibility that the accused might have come into possession of the stolen property otherwise than by stealing it.

Headnote

The appellant was convicted of burglary and theft. He appealed to the High Court against conviction.

Held:(i) Where the accused is alleged to have made a confession the trial magistrate should ask him whether he objects to the confession.(ii) When in a case involving theft, the evidence against the accused is that he was found shortly after the theft in possession of some of the stolen property the magistrate should give some indication in his judgment that he has given consideration to the possibility that the accused might have come into possession of the stolen property otherwise than by stealing it.

Cases cited:

(1) Fanwell v R 1959 R & N 81.(2) Banda v The People CAZ Judgment No. 27 of 1966.

Legislation referred to: Penal Code, Cap. 6, s. 271 (1), 243.

For the appellant: G Sheikh Legal Aid Counsel.For the respondent: S Heron, Senior State Advocate.

Judgment

CHOMBA, J.: The appellant was convicted of burglary and theft, contrary to sections 271 (1) and 243 of Cap. 6 and was consequently sentenced to two years' imprisonment with hard labour and an order of deportation to his home district, namely Mporokoso, was made against him. There was in addition a police supervision order, the duration of which was to be five years. His appeal was originally against the deportation order. However, with the leave of the Court the appellant's counsel, Mr Sheikh, impugned the conviction of the appellant on two grounds, firstly that the clothes, namely one pair of long trousers and one lumber jacket, said to have been found in the appellant's possession and to have been part of the property stolen in furtherance of the burglary, were not properly identified by the complainant; he also argued that according to the established facts the only basis upon which the conviction could be sustained would be the doctrine of recent possession but that the trial magistrate did not dirct his mind to that doctrine. Conceding the aforementioned contention, counsel for the State, Mr Heron, none the less supported the conviction stating that although the identification of the said clothes was not very satisfactory the complainant had none the less proved that they were his. The learned State Advocate also drew the court's attention to the failure by the trial magistrate to ascertain from the appellant whether he had any objection to the arrest statement which was produced by the arresting officer.

Unfortunately all the criticisms of the magistrate's handling of the case are Justified.. Hearing appeals as I do from various Subordinate Courts, I have found that these criticisms can be applied to many magistrates. I therefore propose to write a fairly comprehensive judgment which I hope magistrates will find useful. I shall deal first with the question of identification of exhibits.

It is trite law that in a criminal prosecution when a prisoner pleads not guilty he thereby puts the prosecution to prove all the essential ingredients of the charge. Such proof should be beyond reasonable doubt. In my experience I have formed the impression that although many magistrates initially direct themselves correctly as to the burden of proof, they do not later apply that rigorous test to the facts presented before them by way of evidence. At this stage I shall briefly allude to the doctrine of recent possession in as far as it is connected with the issue of identification. Under the doctrine the court is entitled to draw the inference, if the facts proved so warrant, that the person in whose possession recently stolen property is found is the thief or the guilty receiver thereof. It is therefore vital that the court should be satisfied beyond reasonable doubt that the property so found is the property identified by the complainant as that which was stolen. It is often not appreciated hat exhibits are evidence just as oral testimony of a witness. Elementary rules of evidence state that; material objects produced as exhibits amount to 'real evidence',. Vide Phipson on the Law of Evidence, 9th Edition, page 2. Therefore the same standard of proof applied to oral testimony should be applied to real evidence. This means that if the identification of an article is in issue, as it must be when the doctrine of recent possession is applicable, such identification should be beyond reasonable doubt. If then a witness claims in his evidence that a given article is his he should be asked how he certain that the article is his. Is there any identifying or peculiar mark by which he identifies it? In the present case the appellant was said to have had in his possession one pair of trousers and one jacket said to have been part of the property stolen from the complainant's house. The only evidence amounting to identification by Mr Emanuel Kapembwa, P.W.2, the supposed owner of those items was, 'My trousers was stolen and also ten dresses ... This is the trousers and this is the lumber-jacket.' Mr Augustine Nkumbula, P.W. 1, the brother-in-law of Mr Emanuel Kapembwa, stated merely, 'This is a trousers belonging to my brother-in-law and the lumber-jacket.' Other witnesses similarly averred merely that those two items belonged to the complainant. In these days of mass produced machine-made products, articles are bound to be identical. Through wear and tear, however, some identifying marks may adhere to the products which when ew were indistinguishable. Witnesses should therefore, where especially clothes at issue are second-hand, be asked to point out any identifying marks by which they are certain that those clothes belong to them. Once a witness has pointed to some such mark, which may be a tear, an ink mark, a patch, etc., the court can then feel satisfied beyond reasonable doubt that the complainant is the owner. Where on the contrary, as in the instant ease, the complainant merely says that such and such an article is his the magistrate or judge would be stretching the point too far if he were to state in his judgment that he was satisfied beyond reasonable doubt that that article was that of the complainant.

Another failure by some magistrates when dealing with materials produced is this, that they do not, as happened in the instant case, label sulk materials so as to make it easy for an appeal court or anybody reading the record of proceedings to ascertain that any number of witnesses were identifying the same material. For example, in the present case it would have been better had the learned trial magistrate labelled the trousers and jacket as "1" for identification collectively or "1" and "2" for identification, respectively. In the event of some other witness identifying the same material the record should show for instance, that P.W.2 identified "1" for identification as the property of P.W.1 who would himself have earlier identified the same. When the materials are formally produced the record should show, for instance, that "1" for identification has been tendered in evidence, is not objected to and has become Ex. P.1 or as the case may be. In this

connection I would commend the attention of magistrates to paragraph 220 of Mr Young's Magistrates' Handbook, 1968 Edition, page 92, which states:

" Articles and documents must not be marked as exhibits until they are proved to be relevant, e.g., in a case of burglary in which the stolen property has been recovered, a witness may prove the finding of certain articles, but they should not be tendered in evidence and admitted in evidence until the owner has identified them. If, however, articles and documents come to the notice of the court before they can become exhibits, they should be marked for identification with a symbol, e.g., "1", "2", "3" (for short "3 for it."). This course will save the time of the court in repeatedly writing out in full the description of the articles before they are proved to be relevant. Upon their becoming exhibits an entry should appear in the record as follows: "1 for it. tendered in evidence, not objected to, admitted and marked Ex. P.1." Exhibits put in evidence by the prosecution or by a plaintiff in a civil case should be marked P.1, P.2, etc. Exhibits put in by the defence in civil or criminal proceedings should be marked D.1, D.2, etc.'

With regard to the arrest statement supposedly made by the appellant the trial magistrate admitted it without first inquiring from the appellant whether he had any objection to it. The appellant is shown to have said when arrested, 'I broke into house No. 1 Collin Street. We were three.' Time and again this court has spelt out the correct procedure which magistrates and indeed any trial court should follow once an arresting officer or an investigating officer seeks to adduce evidence of a statement alleged to have been made by an accused. The Court of Appeal has similarly dealt with this matter and for the purpose of this case I need refer only to the dictum of the learned Mr Justice Doyle, CJ, in the case of Edward Panda v The People, Judgment No. 16 of 1971 CAZ This is what he said, 'When arrested the accused is related to have said, "I admit the charge. I am the one who broke into the store." The learned magistrate has referred to that in his judgment. Those words are in fact a confession an before admitting it as evidence the magistrate should have satisfied himself on the question of voluntariness or otherwise ... It does not appear that the magistrate has in fact fully considered the question of voluntariness ... Where the accused is alleged to have made a confession the trial magistrate should ask him whether he objects and then proceed in accordance with his reply.' The learned trial magistrate in the instant case -infringed that dictum and having done so none the less said this in his Judgment, 'I am inclined to believe the evidence of P.W.5 (that is the arresting officer) that the accused stated it was him who broke into house No.1 Rhokana Collin Street with two friends and that they shared the goods.' The magistrate should first of all have satisfied himself that the alleged statement was admissible but he did not. In the circumstances the appellant's alleged statement on arrest was irregularly admitted. What is more, the record further shows that when the arresting office was cross-examined he replied to one of the questions, 'You told me you had bought the things from a man.' This I should emphasise was elicited only under cross-examination and was not stated in chief as part of what the appellant had stated to the arresting officer on arrest. This answer elicited in cross-examination was clearly in favour of the appellant and the trial magistrate should have wondered, in dealing with the arresting officer's credit worthiness, why it was that when he was giving evidence in chief he suppressed evidence that was favourable to the appellant. In point of fact the trial magistrate did not direct his mind to this aspect at all in his Judgment.

Lastly, when a theft of one kind or another is charged and the only evidence adduced in support thereof is that the accused was found in possession of all or some of the property stolen soon after the theft, it is incumbent on the trial court to apply the rigorous test which is compendiously called 'the doctrine of recent possession' to the established facts. By that doctrine when stolen property is found in the manner mentioned, the court may draw the inference that the possessor thereof is the thief or guilty receiver. However, the court may draw that inference only if, after considering all the established facts, including any explanation which the accused may have offered to account for the possession by him of the property, it is the only one reasonably possible. See Fanwell v R [1]. And in the case of Enos Shadrack, Banda v The People [2], Blagden CJ,Doyle, JA, as he then was and Picket, J, as he then was, were unanimous in holding on pages 2-3, as follows, 'When, in a case involving theft, the evidence against the accused is that he was found shortly after the theft in possession of some of the stolen property, the magistrate should give some indication in his judgment that he has given consideration of the possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. In some circumstances - as, for instance, where the time elapsing between the theft and the discovery of the property in the accused's possession is extremely short - there is hardly any need to make any reference to this since the inference that the accused is the actual thief may be quite inescapable. Nevertheless, imagist bates should take care in these cases of "recent possession" to show in their judgment that they have understood and correctly applied what is commonly called the doctrine of recent possession.' I am satisfied, looking at the judgment, that the trial magistrate in the present case did apply the doctrine of recent possession because this is what he stated (quoting only that part of it relevant to this issue), 'It is a fact the house of P.W.1 was broken into. It is also a fact that a number of articles were stolen. It is also a fact immediately after the teft of the articles some of the stolen articles were found on the person of the accused. To say that he bought the articles from a man whom he knew by the name of Katongo and who was selling goods in Kitwe and staying in Mufulira is not true. Katongo might be one of the party in which the accused was.' This notwithstanding, I am not satisfied that he correctly applied the doctrine. I say this because, as I have earlier indicated, there is in this case unsatisfactory evidence of identification by the complainant of the clothes found in the appellant's possession. Therefore the fact that the trousers and lumber-jacket belonged to Mr Emanuel Kapembwa was not established beyond reasonable doubt and therefore the magistrate's finding of fact that the property found in the appellant's possession after the theft was part of the stolen property was not entirely justified.

There is then the explanation by the appellant that he bought this from someone called Katongo. That explanation, as is demonstrated by the quotation, supra, from the magistrate's judgment, was rejected, but the magistrate in so rejecting it gave no reason. There is a marked tendency among some magistrates to deal with the issue of credibility in a summary manner. In most judgments they merely give a resume of the evidence of various witnesses and they go on to say that they believe that one side was telling the truth and the other lies. I assume that such magistrates during the course of hearing evidence make certain mental observations on the basis of which they eventually decide whether or not any given witness was telling the truth. Although it is good practice to make such observations it is not enough unless such observations are reduced to writing. If for e sample a witness, while being cross-examined, is evasive or makes any gesture which may have a bearing on his credit worthiness, a prudent magistrate will make a note of such evasiveness or gesture. A

witness's evidence may be rejected, for example, because it is riddled with discrepancies or it is in conflict with an earlier statement he may have made; or you may have a situation in which it is clear that one witness has a better knowledge of the facts of the case and another has not and the evidence of the two is conflicting, then there is reason for disbelieving the latter witness; or a witness may have an interest in the case and it is apparent to the court that such interest foreshadows his evidence, again his evidence would be rejected. In each instance it is desirabl for the court to state why it does not accept the evidence of a particular witness.Deciding the issue of credibility on the basis of mental observations which have not been recorded can place an appeal court in great difficulty in a case In which it Is not apparent on the record why any witness or set of witnesses should or should not be believed. The learned Mr Justice Baron Judge President of the Court of Appeal for Zambia, has this to say on the desirability of recording observations which have a bearing on a witnesses credit worthiness, 'Speaking of the appellant, the learned trial judge said, "He did not impress me at all." This would appear to be a comment on the demeanour of the appellant. Demeanour is one of the factors which should be taken into account when deciding whether a witness is worthy of credit (others being discrepancies in the witness's evidence, a previous inconsistent statement, bad character, etc.) and an adverse finding as to credit is in turn one of the consideration in the decision whether to reject the evidence of the witness. But demeanour is as much an item of evidence as anything else observed by the court from which inferences or conclusions are drawn. The learned author of Cross on Evidence, 3rd Edition, says this at page 8, "Professor Nokes includes the demeanour of witnesses among the items of real evidence. If a witness gives his evidence in a forthright way, unperturbed by cross-examination, the court will no doubt be more disposed to believe him than would be the case with a halting and prevaricating witness. So far as its bearing on the facts in issue is concerned this type of demeanour is analogous to the answers given by a witness who is being cross-examined as to credit, and may rightly be regarded as evidence in the case.'' All evidence, whether heard or seen, must appear either in the body of the record or at least in the judgment. Thus, if the do height or weight of a witness might be material the court will record the relevant particulars; f the court makes observations at an inspection of the locus an to it will record the matters observed. Equally, if the court observes a witness to be hesitant or uncomfortable when asked certain questions, or unwilling to look the court or counsel in the eye, these are items of evidence which must be recorded if conclusions are to be drawn from them. On the face of the record before us the adverse finding on demeanour has no evidence to support it.'(See Make Machobani v The People, Judgment No.12 of 1972 CAZ)

For the foregoing reasons the conviction of the appellant in the present case cannot be sustained. I accordingly allow the appeal and set the sentence aside. Having regard to what is contained in the record of the trial proceedings I would have been inclined to order a re-trial in this case.However, the appellant was arrested on the 12th November, 1971, and has been in custody since. I think it would be oppressive to require him to face the ordeal of a new trial after he has spent such a lengthy period in prison. I accordingly order that he be released forthwith.

Appeal allowed KAMPAFWILE v THE PEOPLE (1972) Z.R. 242 (H.C.)

HIGH COURT CHOMBA, J.

11TH AUGUST, 1972(CRIMINAL APPEAL NO.HNA185 OF 1972)

Flynote

Criminal Law - Evidence - Confession - Admissibility of - Objections to confession.Criminal Law - Theft - Recent possession -Possibility that the accused might have come into possession of the stolen property otherwise than by stealing it.

Headnote

The appellant was convicted of burglary and theft. He appealed to the High Court against conviction.

Held:(i) Where the accused is alleged to have made a confession the trial magistrate should ask him whether he objects to the confession.(ii) When in a case involving theft, the evidence against the accused is that he was found shortly after the theft in possession of some of the stolen property the magistrate should give some indication in his judgment that he has given consideration to the possibility that the accused might have come into possession of the stolen property otherwise than by stealing it.

Cases cited:

(1) Fanwell v R 1959 R & N 81.(2) Banda v The People CAZ Judgment No. 27 of 1966.

Legislation referred to: Penal Code, Cap. 6, s. 271 (1), 243.

For the appellant: G Sheikh Legal Aid Counsel.For the respondent: S Heron, Senior State Advocate.

Judgment

CHOMBA, J.: The appellant was convicted of burglary and theft, contrary to sections 271 (1) and 243 of Cap. 6 and was consequently sentenced to two years' imprisonment with hard labour and an order of deportation to his home district, namely Mporokoso, was made against him. There was in addition a police supervision order, the duration of which was to be five years. His appeal was originally against the deportation order. However, with the leave of the Court the appellant's counsel, Mr Sheikh, impugned the conviction of the appellant on two grounds, firstly that the clothes, namely one pair of long trousers and one lumber jacket, said to have been found in the appellant's possession and to have been part of the property stolen in furtherance of the burglary, were not properly identified by the complainant; he also argued that according to the established facts the only basis upon which the conviction could be sustained would be the doctrine of recent possession but that the trial magistrate did not dirct his mind to that doctrine. Conceding the

aforementioned contention, counsel for the State, Mr Heron, none the less supported the conviction stating that although the identification of the said clothes was not very satisfactory the complainant had none the less proved that they were his. The learned State Advocate also drew the court's attention to the failure by the trial magistrate to ascertain from the appellant whether he had any objection to the arrest statement which was produced by the arresting officer.

Unfortunately all the criticisms of the magistrate's handling of the case are Justified.. Hearing appeals as I do from various Subordinate Courts, I have found that these criticisms can be applied to many magistrates. I therefore propose to write a fairly comprehensive judgment which I hope magistrates will find useful. I shall deal first with the question of identification of exhibits.

It is trite law that in a criminal prosecution when a prisoner pleads not guilty he thereby puts the prosecution to prove all the essential ingredients of the charge. Such proof should be beyond reasonable doubt. In my experience I have formed the impression that although many magistrates initially direct themselves correctly as to the burden of proof, they do not later apply that rigorous test to the facts presented before them by way of evidence. At this stage I shall briefly allude to the doctrine of recent possession in as far as it is connected with the issue of identification. Under the doctrine the court is entitled to draw the inference, if the facts proved so warrant, that the person in whose possession recently stolen property is found is the thief or the guilty receiver thereof. It is therefore vital that the court should be satisfied beyond reasonable doubt that the property so found is the property identified by the complainant as that which was stolen. It is often not appreciated hat exhibits are evidence just as oral testimony of a witness. Elementary rules of evidence state that; material objects produced as exhibits amount to 'real evidence',. Vide Phipson on the Law of Evidence, 9th Edition, page 2. Therefore the same standard of proof applied to oral testimony should be applied to real evidence. This means that if the identification of an article is in issue, as it must be when the doctrine of recent possession is applicable, such identification should be beyond reasonable doubt. If then a witness claims in his evidence that a given article is his he should be asked how he certain that the article is his. Is there any identifying or peculiar mark by which he identifies it? In the present case the appellant was said to have had in his possession one pair of trousers and one jacket said to have been part of the property stolen from the complainant's house. The only evidence amounting to identification by Mr Emanuel Kapembwa, P.W.2, the supposed owner of those items was, 'My trousers was stolen and also ten dresses ... This is the trousers and this is the lumber-jacket.' Mr Augustine Nkumbula, P.W. 1, the brother-in-law of Mr Emanuel Kapembwa, stated merely, 'This is a trousers belonging to my brother-in-law and the lumber-jacket.' Other witnesses similarly averred merely that those two items belonged to the complainant. In these days of mass produced machine-made products, articles are bound to be identical. Through wear and tear, however, some identifying marks may adhere to the products which when ew were indistinguishable. Witnesses should therefore, where especially clothes at issue are second-hand, be asked to point out any identifying marks by which they are certain that those clothes belong to them. Once a witness has pointed to some such mark, which may be a tear, an ink mark, a patch, etc., the court can then feel satisfied beyond reasonable doubt that the complainant is the owner. Where on the contrary, as in the instant ease, the complainant merely says that such and such an article is his the magistrate or judge would be stretching the point too far if he were to state in his judgment that he was satisfied beyond reasonable doubt that that article was that of the complainant.

Another failure by some magistrates when dealing with materials produced is this, that they do not, as happened in the instant case, label sulk materials so as to make it easy for an appeal court or anybody reading the record of proceedings to ascertain that any number of witnesses were identifying the same material. For example, in the present case it would have been better had the learned trial magistrate labelled the trousers and jacket as "1" for identification collectively or "1" and "2" for identification, respectively. In the event of some other witness identifying the same material the record should show for instance, that P.W.2 identified "1" for identification as the property of P.W.1 who would himself have earlier identified the same. When the materials are formally produced the record should show, for instance, that "1" for identification has been tendered in evidence, is not objected to and has become Ex. P.1 or as the case may be. In this connection I would commend the attention of magistrates to paragraph 220 of Mr Young's Magistrates' Handbook, 1968 Edition, page 92, which states:

" Articles and documents must not be marked as exhibits until they are proved to be relevant, e.g., in a case of burglary in which the stolen property has been recovered, a witness may prove the finding of certain articles, but they should not be tendered in evidence and admitted in evidence until the owner has identified them. If, however, articles and documents come to the notice of the court before they can become exhibits, they should be marked for identification with a symbol, e.g., "1", "2", "3" (for short "3 for it."). This course will save the time of the court in repeatedly writing out in full the description of the articles before they are proved to be relevant. Upon their becoming exhibits an entry should appear in the record as follows: "1 for it. tendered in evidence, not objected to, admitted and marked Ex. P.1." Exhibits put in evidence by the prosecution or by a plaintiff in a civil case should be marked P.1, P.2, etc. Exhibits put in by the defence in civil or criminal proceedings should be marked D.1, D.2, etc.'

With regard to the arrest statement supposedly made by the appellant the trial magistrate admitted it without first inquiring from the appellant whether he had any objection to it. The appellant is shown to have said when arrested, 'I broke into house No. 1 Collin Street. We were three.' Time and again this court has spelt out the correct procedure which magistrates and indeed any trial court should follow once an arresting officer or an investigating officer seeks to adduce evidence of a statement alleged to have been made by an accused. The Court of Appeal has similarly dealt with this matter and for the purpose of this case I need refer only to the dictum of the learned Mr Justice Doyle, CJ, in the case of Edward Panda v The People, Judgment No. 16 of 1971 CAZ This is what he said, 'When arrested the accused is related to have said, "I admit the charge. I am the one who broke into the store." The learned magistrate has referred to that in his judgment. Those words are in fact a confession an before admitting it as evidence the magistrate should have satisfied himself on the question of voluntariness or otherwise ... It does not appear that the magistrate has in fact fully considered the question of voluntariness ... Where the accused is alleged to have made a confession the trial magistrate should ask him whether he objects and then proceed in accordance with his reply.' The learned trial magistrate in the instant case -infringed that dictum and having done so none the less said this in his Judgment, 'I am inclined to believe the evidence of P.W.5 (that is the arresting officer) that the accused stated it was him who broke into house No.1 Rhokana Collin Street with two friends and that they shared the goods.' The magistrate should first of all have satisfied himself that the alleged statement was admissible but he did not. In the circumstances the

appellant's alleged statement on arrest was irregularly admitted. What is more, the record further shows that when the arresting office was cross-examined he replied to one of the questions, 'You told me you had bought the things from a man.' This I should emphasise was elicited only under cross-examination and was not stated in chief as part of what the appellant had stated to the arresting officer on arrest. This answer elicited in cross-examination was clearly in favour of the appellant and the trial magistrate should have wondered, in dealing with the arresting officer's credit worthiness, why it was that when he was giving evidence in chief he suppressed evidence that was favourable to the appellant. In point of fact the trial magistrate did not direct his mind to this aspect at all in his Judgment.

Lastly, when a theft of one kind or another is charged and the only evidence adduced in support thereof is that the accused was found in possession of all or some of the property stolen soon after the theft, it is incumbent on the trial court to apply the rigorous test which is compendiously called 'the doctrine of recent possession' to the established facts. By that doctrine when stolen property is found in the manner mentioned, the court may draw the inference that the possessor thereof is the thief or guilty receiver. However, the court may draw that inference only if, after considering all the established facts, including any explanation which the accused may have offered to account for the possession by him of the property, it is the only one reasonably possible. See Fanwell v R [1]. And in the case of Enos Shadrack, Banda v The People [2], Blagden CJ,Doyle, JA, as he then was and Picket, J, as he then was, were unanimous in holding on pages 2-3, as follows, 'When, in a case involving theft, the evidence against the accused is that he was found shortly after the theft in possession of some of the stolen property, the magistrate should give some indication in his judgment that he has given consideration of the possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. In some circumstances - as, for instance, where the time elapsing between the theft and the discovery of the property in the accused's possession is extremely short - there is hardly any need to make any reference to this since the inference that the accused is the actual thief may be quite inescapable. Nevertheless, imagist bates should take care in these cases of "recent possession" to show in their judgment that they have understood and correctly applied what is commonly called the doctrine of recent possession.' I am satisfied, looking at the judgment, that the trial magistrate in the present case did apply the doctrine of recent possession because this is what he stated (quoting only that part of it relevant to this issue), 'It is a fact the house of P.W.1 was broken into. It is also a fact that a number of articles were stolen. It is also a fact immediately after the teft of the articles some of the stolen articles were found on the person of the accused. To say that he bought the articles from a man whom he knew by the name of Katongo and who was selling goods in Kitwe and staying in Mufulira is not true. Katongo might be one of the party in which the accused was.' This notwithstanding, I am not satisfied that he correctly applied the doctrine. I say this because, as I have earlier indicated, there is in this case unsatisfactory evidence of identification by the complainant of the clothes found in the appellant's possession. Therefore the fact that the trousers and lumber-jacket belonged to Mr Emanuel Kapembwa was not established beyond reasonable doubt and therefore the magistrate's finding of fact that the property found in the appellant's possession after the theft was part of the stolen property was not entirely justified.

There is then the explanation by the appellant that he bought this from someone called Katongo. That explanation, as is demonstrated by the quotation, supra, from the magistrate's judgment, was rejected, but the magistrate in so rejecting it gave no reason. There is a marked tendency among some magistrates to deal with the issue of credibility in a summary manner. In most judgments they merely give a resume of the evidence of various witnesses and they go on to say that they believe that one side was telling the truth and the other lies. I assume that such magistrates during the course of hearing evidence make certain mental observations on the basis of which they eventually decide whether or not any given witness was telling the truth. Although it is good practice to make such observations it is not enough unless such observations are reduced to writing. If for e sample a witness, while being cross-examined, is evasive or makes any gesture which may have a bearing on his credit worthiness, a prudent magistrate will make a note of such evasiveness or gesture. A witness's evidence may be rejected, for example, because it is riddled with discrepancies or it is in conflict with an earlier statement he may have made; or you may have a situation in which it is clear that one witness has a better knowledge of the facts of the case and another has not and the evidence of the two is conflicting, then there is reason for disbelieving the latter witness; or a witness may have an interest in the case and it is apparent to the court that such interest foreshadows his evidence, again his evidence would be rejected. In each instance it is desirabl for the court to state why it does not accept the evidence of a particular witness.Deciding the issue of credibility on the basis of mental observations which have not been recorded can place an appeal court in great difficulty in a case In which it Is not apparent on the record why any witness or set of witnesses should or should not be believed. The learned Mr Justice Baron Judge President of the Court of Appeal for Zambia, has this to say on the desirability of recording observations which have a bearing on a witnesses credit worthiness, 'Speaking of the appellant, the learned trial judge said, "He did not impress me at all." This would appear to be a comment on the demeanour of the appellant. Demeanour is one of the factors which should be taken into account when deciding whether a witness is worthy of credit (others being discrepancies in the witness's evidence, a previous inconsistent statement, bad character, etc.) and an adverse finding as to credit is in turn one of the consideration in the decision whether to reject the evidence of the witness. But demeanour is as much an item of evidence as anything else observed by the court from which inferences or conclusions are drawn. The learned author of Cross on Evidence, 3rd Edition, says this at page 8, "Professor Nokes includes the demeanour of witnesses among the items of real evidence. If a witness gives his evidence in a forthright way, unperturbed by cross-examination, the court will no doubt be more disposed to believe him than would be the case with a halting and prevaricating witness. So far as its bearing on the facts in issue is concerned this type of demeanour is analogous to the answers given by a witness who is being cross-examined as to credit, and may rightly be regarded as evidence in the case.'' All evidence, whether heard or seen, must appear either in the body of the record or at least in the judgment. Thus, if the do height or weight of a witness might be material the court will record the relevant particulars; f the court makes observations at an inspection of the locus an to it will record the matters observed. Equally, if the court observes a witness to be hesitant or uncomfortable when asked certain questions, or unwilling to look the court or counsel in the eye, these are items of evidence which must be recorded if conclusions are to be drawn from them. On the face of the record before us the adverse finding on demeanour has no evidence to support it.'(See Make Machobani v The People, Judgment No.12 of 1972 CAZ)

For the foregoing reasons the conviction of the appellant in the present case cannot be sustained. I accordingly allow the appeal and set the sentence aside. Having regard to what is contained in the record of the trial proceedings I would have been inclined to order a re-trial in this case.However, the appellant was arrested on the 12th November, 1971, and has been in custody since. I think it would be oppressive to require him to face the ordeal of a new trial after he has spent such a lengthy period in prison. I accordingly order that he be released forthwith.

Appeal allowed KALULUKA v THE PEOPLE (1969) Z.R. 27 (H.C.)

HIGH COURT EVANS, J.28TH JANUARY, 1969

Flynote and Headnote

[1] Criminal law - Theft - Recent possession doctrine - Burden of proof not shifting.

In a charge of theft or receiving in which the prosecution relies on the doctrine of recent possession, the accused carries no onus to prove, even by a balance of probabilities, the truth of how he came to possess the stolen property.

[2] Criminal law - Theft - Recent possession doctrine - Explanation by accused might reasonably be true.

If, in a case in which the prosecution supports a charge of larceny through the recent possession doctrine, the accused gives an innocent explanation of his possession which might reasonably be true, the court must acquit.

Cases cited:

Fanwell v R 1959 (1) R & N 81.

[2] D.P.P. v Nieser [1959] 1 QB 254; [1958] 3 All ER 662; [1968] 3 WLR 757.

For the appellant: In person. For the People: Chigaga, State Advocate.

Judgment

EVANS, J.: The appellant was tried and convicted of a charge on stock theft, contrary to sections 243 and 246 of the Penal Code. The particulars were that, between the 5th and 6th of September, 1968, at Lilu's Village in the Mongu District, he stole one ox valued at K70 and belonging to Mundia Ingomba. On the 21st October, he was sentenced to three years' I.H.L. with effect from the 11th September, 1968. He now appeals out of time, and, in the exercise of my discretion, I have heard the

appeal. The filed grounds of appeal are headed "Appeal against sentence", but it is plain from the grounds that the appellant is also appealing against conviction because he refers to the defence which he put forward in the lower court - that he innocently bought the ox from a third party.

The decision of the trial magistrate largely turned upon the so-called doctrine of recent possession (hereinafter called "the doctrine"). The appellant was undoubtedly in possession of the complainant's stolen ox some two or three days after its theft. Since his arrest, he maintained that he bought it on the 6th of September, and there was no evidence to disprove that allegation and no other evidence to implicate him in the theft. It was therefore incumbent upon the magistrate carefully and properly to consider the evidence and the doctrine. However, he seriously misdirected himself in his judgment when, after correctly reminding himself of the never-shifting onus of proof on the prosecution, he went on to say: "But there may be occasions when evidential burden of certain facts may be upon the party that asserts them. When this is on the side of the defence such amount of evidence on the balance of probability must be adduced. Hence I shall approach the accused's evidence in this light." He then went on to consider the appellant's evidence, and concluded: "The truth seems to be on that such transaction took place between the accused and his fictitious Mubiana."

[1] In a criminal trial (of a charge of theft or receiving), in which the prosecution relies upon the doctrine, there is no onus whatever upon the accused to prove, even upon a balance of probabilities, the truth of his account of how he came to possess the stolen property. In the instant case, the trial magistrate clearly indicated that he approached the appellant's evidence in the light of his (the magistrate's) misdirection to the effect that the appellant had to prove his innocent possession of the ox upon a balance of probabilities, and I therefore conclude that it is unsaid to accept the magistrate's finding (which was not a positive one, because he said, "The truth seems to be . . . F") that the appellant did not buy the ox from a man named Mubiana. Had the magistrate not misdirected himself, he might well have formed the opinion that the appellant's explanation of his possession might reasonably have been true, in which event, there being no other evidence implicating the appellant, he would have acquitted the appellant upon a proper application of the doctrine, because the appellant's guilt would not have been the only reasonable inference to be drawn from the appellant's possession of the stolen ox.

[2] The trial magistrate's attention is invited to the case of Fanwell v R [1] in which the federal Supreme Court, following and approving the English case of D.P.P. v Nieser [2] discussed the proper approach of a court to the consideration of guilt in cases of this nature. In particular, attention is drawn to the following passage from the judgment of Clayden, F.J. (at 84): "And if explanation is given, because guilt is a matter of inference, there cannot be a conviction if the explanation might reasonably be true, for then guilt is not the only reasonable inference. It is not correct to say . . . that the accused must give a satisfactory explanation." For the above reasons, I do not think it would be safe to sustain this conviction, which the State does not support. This appeal is allowed, the conviction and sentence are reversed and the appellant is acquitted.

Appeal allowed

THE PEOPLE v BRIGHT MWAPE AND FRED MMEMBE (1995) S.J.

HIGH COURTCHITENGI, P.J.17TH MARCH, 1995HPR/36/94Flynote

Criminal defamation - Section 69 of the Penal Code - Whether in conflict with Articles 20 and 23 of the ConstitutionHeadnote

The appellants, who were journalists in an independent weekly newspaper, were charged with criminal defamation against the President arising from an article referring to him in a derogatory term. The appellants did not plead to the charge but raised a preliminary issue as to the constitutionality of Section 69 of the Penal Code.Held:(i) Section 69 does not deprive any citizen the right to legitimately criticise the President or the Government.(ii) Section 69 of the Penal Code Cap 146 of the Laws of Zambia is not in conflict with Articles 20 or 23 of the Constitution of Zambia.Authorities referred to:1. Patel v Attorney-General 1968 Z.R. 992. The People v Kambarange Kaunda and Raffick Mulla 1990 High Court Judgment No. HPR/151/90 (unreported)3. Aggrey Mukoboto Simataa and Regina Sanana Saada Simataa v The Attorney-General High Court Judgment No. 1986/HP/448 (unreported)4. Feliya Kachusu v The Attorney-General 1967 Z.R. 145.5. BO Nwabweze: Presidentialism in Commonwealth Africa: C Hurst and Company (Publishers) Ltd. London6. Handyside v The United Kingdom (1986) European Human Rights Reports7. Castells v Spain (1992) European Human Rights Reports8. Derbyshire City Council v Times Newspapers (1993) A.C. 5369. City of Chicago Tribune Co. (1923) 139 N.E. 8610. Hector v Attorney-General of Antigua and Barbuda (1990) A.C. 31211. Lingens v Austria 1986; 8 European Human Rights Report 40712. Die Spoorbond v South Africa Railways 1946 A.D. 99913. New York Times v Sulliran 376 US 25414. Zundel v The Queen and Others 95 D.L.R. (4th) 20215. Guzana v Council of State of the Republic of Ciskei (2) S.A. 43716. S Versus Ggobo and others 1994 (2) S.A. 75617. Arzika Vs Governor of Northern Region (1961) Ahh Nh R 37918. Willougly: Constitution of the United States Volume 1 2nd Edition at page 42 19. Dartmouth College v Woodward (4 wb 625)20. Dafamation Act Cap. 70 of the Laws of Zambia

21. Section 57 of the Penal Code Cap. 146 of the Laws of Zambia22. Section 71 of Penal Code Cap. 146 of the Laws of Zambia23. Section 191 of the Penal Code Cap. 146 of the Laws of Zambia24. Section 60 of the Penal Code Cap. 146 of the Laws of Zambia25. Cassel and Company Limited v Broome (1972) A.C. 1027 at P 107126. R. Versus Holbrook (1978) 4 O.B.D. 4227. Goldsmith v Pressdam Limited (1927) Q.B. 8328. Gleanes v Deakin (1979) 2 W.L.R. 66529. Basu: Commentary on the Constitution of India 4th Edition Volume 130. (a) Fletcher v Peck (1806) 5 Cr 8731. William L Prosser: Handbook of the Law of Torts 2nd Edition (St Paul: West Publishers Company (1955) P 58432. R. v Wicks (1936) 1 All E.R. 384 C.C.A.33. John Stuart Mill on liberty. Excepts from Chapters 1 and 11 and all of Chapter IV First published in 1859

For the People: Mr. Kinariwala - Principal State AdvocateFor the accused: Mr. Sangwa & Mr. Simeza of Simeza Sangwa & Co.

Judgment

CHITENGI, P. J.: delivered the judgment of the court.This case was referred to the High court by the Resident Magistrate Lusaka pursuant to Article 28 (2) (a) the Constitution for the High Court to rule on the Constitutionality of Section 69 of the Penal Code 146 of the Laws of Zambia which creates the offence of defamation of the President.The criminal charge against the Applicants appears to have arisen from some article, which appeared in a Newspaper called Weekly Post, referring to the Republican President in a derogatory term which is not worth to repeat. The Applicants who are described in the charge sheet as journalists and who are alleged to have jointly and whilst acting together published the offending article did not plead to the charge but raised a preliminary issue as to the constitutionality of Section 69 of the Penal Code.When referring the matter to the High Court the learned Resident Magistrate said:“I therefore rule and it is ordered that the question be and it is hereby referred to the High Court.”On the 17th November, 1994, a day before Counsel commenced to argue the case, Counsel for the Applicants filed what he termed Statement of Issues. In fact the statement apart from reciting what went on during the proceedings in the Subordinate Court only posed the question whether Section 69 of the Penal Code was not in conflict with Articles 20 and 223 of the Constitution. Apart from the allegation contained in the particulars of offence no facts or affidavit evidence was put before the court for the court to be in a clear picture as to how the publication of the offending article arose. The difficulty of how to go about an application under Article 28 the Constitution appears to stem from the fact that Article 28 of the Constitution does not itself prescribe the procedure by which the applications may be brought before the High Court. However, this does not mean that there is a lacuna in the procedural law because the situation is covered by Order 6 Rule 3 of the High Court Rules Cap. 50 of the Laws of Zambia. In constitutional issues arising out of proceedings before the Subordinate Court there is precedent that the application can be made by way of reference. Patel v The Attorney-General (1).

It will be noted that in the Patel case (1) there was some viva voce and affidavit and evidence upon which the court determined whether the provisions impugned were constitutional or not. In cases where there is no evidence, viva voce or affidavit, the reference recited the relevant facts giving rise to the issues for determination by the High Court. In this regard I cite only the cases of the People v Kambarange Kaunda and Raffick Mulla (2) and Aggrey Mukoboto Simataa and Regina Sanana Saasa Simataa v Attorney-General (3). The applications in both cases were not brought by way of Reference or Originating Notice of Motion but the cases demonstrate how the issues for the consideration of the court should be framed. Notwithstanding the matters I have raised with regard to insufficiency of facts I am satisfied that the matter is properly before me. And to make up for the want of facts, I have reproduced the submissions in detail.The Applicants’ case was argued by Mr. Sangwa and Mr. Simeza. The case for the Applicants has two limbs. The first limb deals with the conflict of Section 69 of the Penal Code with Article 20 of the Constitution and is argued by Mr. Sangwa. The second limb of the argument deals with the contravention of Article 23 of the Constitution by Section 69 of the Penal Code and is argued by Mr. Simeza.Mr. Sangwa submitted that Section 69 of the Penal code is unconstitutional. It was Mr. Sangwa’s submission that since truth is not a defence under Section 69 of the Penal Code one can go to prison for speaking the truth as long as the truth has brought the President into contempt and ridicule. For that reason Section 69 of Penal Code cannot stand vis-à-vis Article 20 of the Constitution.For one to establish his case under Article 20 of the Constitution, Mr. Sangwa argued, one has first to show that his rights have been hindered. In this regard, Mr. Sangwa cited the cases of Feliya Kachasu v Attorney-General (4) and Patel v The Attorney-General (1). Mr. Sangwa referred a passage in Kachasu’s case at page 162 where Blagden CJ held that in determining where there has been a breach of the rights any hindrance is enough and there need not be prevention. It was Mr. Sangwa’s submission that the Applicants in this case have been hindered, are being hindered and will continue to be hindered in the enjoyment of their freedom of expression vis-à-vis the President. The fact that the Applicants now stand charged under Section 69 of the Penal Code is in itself proof of hindrance. Further Mr. Sangwa submitted that Section 59 of the Penal Code puts prior restraint on the freedom of expression as any matter that is likely to bring the President into ridicule etc. is by law forbidden.Mr. Sangwa submitted that while the freedom of expression and indeed any other freedom is not absolute Section 69 of the Penal Code does not meet the standards set in and justifiably under the derogations under Article 20 (3) of the Constitution and the burden of proof is on the state. In this connection Mr. Sangwa referred to the case of Patel v The Attorney-General (1) at page 119.It was Mr. Sangwa’s submission that the provision of Section 69 of the Penal code are not reasonably required. Citing the case of Patel v The Attorney-General (1) at page 126 Mr. Sangwa argued that “reasonably required” means “genuine present need; something more than desire, although something less that absolute necessity.” It was Mr. Sangwa’s submission that there was no need to protect the President in the manner Section 69 of the Penal Code does because as stated in Professor Nwabweze’s Presidentialism in Commonwealth Africa (5) at page 121:

“The immunity of the President from suit or legal process is, however, a different thing from saying that he should also be protected by law from insult or abuse beyond the protection afforded by the ordinary law of libel and sedition. Such a protection was conferred by an amendment to the Criminal code in Ghana and Zambia in 1961 and 1965 respectively. It was made an offence to publish by written, word of mouth or in any other manner any defamatory or insulting matter

concerning the President with intent to bring him into hatred, ridicule or contempt. Justification for this questionable. The Ghanaian Minister of Justice, Mr. Cfori Atta, had defended the provision on the ground that the “Head of State of Ghana is a sacred person, irrespective of the party to which he belongs. Ideally, a Head of State should be above politics in order that his embodiment of the State and its majesty should attract maximum respect. But an apolitical Head of State is possible, if at all, only if he is a titular head. Such a head of state can be above partisan politics because he exercises no public functions and belongs to no political party. Any executive Head of State is in a different position. The exercise of executive powers necessarily invites criticism. One should not accept the office and refuse its price. That would be like eating ones case and having it. Moreover, an executive President is not just the Chief functionary of the government; he is the government itself. And to ban criticism of him is unduly to inhibit criticism of government. Where the executive President is a partisan leading a political party in a two or more multi party system -------------- the protection becomes even more objectionable. Such a system necessarily implies political competition. ----------------------. Verbal attacks, sometimes of a very derogatory kind are inseparable from political competition. Within reason it is legitimate for politicians to try to discredit each other as part of the effort to enhance ones standing and undermine that of opponents. The leader of the opposition in Kenya, Mr. Ngala, put the point aptly when he said that, as a political head, the President is “a person who throws mud at other fellow politicians and mud can be thrown at him and he can have political fights with other leaders.”Mr. Sangwa submitted that the President we have is not above politics. He represents a party and has a political interest to serve. It was Mr. Sangwa’s submission the criticism even of the worst kind is indispensable in our political system and constitutional frame work. Criticism, Mr. Sangwa argued, is an occupational hazard for any one who takes up the office of the President. Section 69 of the Penal code is not required vis-à-vis the objectives stated in Article 30(3).Mr. Sangwa argued further that should the court find that Section 69 of the Penal Code is reasonably required then society. He submitted that the issue of being reasonably required then it should find that it is not reasonably justified in a democratic society. He submitted that the issue of being reasonably justified in a democratic society was considered in the Patel case 91) at pages 128 and 129 and in the Kachasu case (4) at page 167. It was Mr. Sangwa’s submission that Zambia is a democratic society and that in the Patel case (1) it was stated that the test is an objective one.Mr. Sangwa submitted that freedom of expression is the life blood of any democratic society and any law like Section 69 of the Penal Code which attempts to derogate it cannot be said to be reasonably justifiable in a democratic society. In support of his submissions on the importance of freedom of expression in a democratic society, Mr. Sangwa refers the court to a passage in the judgment of the European Court of Human Rights in the case of Handyside v The United Kingdom (6) at page 754. The import of the passage is to emphasise the importance of freedom of expression in a democratic society. Then Mr. Sangwa refers to the case of Castells v Spain, again a decision of the European Court of Human Rights at paragraphs 68, 69 and 70 (7). The sum and substance of these paragraphs is that freedom of expression is an essential element in the formulation of political opinion in a democratic society; that to counteract criticisms government should not resort to criminal from the opposition or the media that is to say statements by the appropriate Minister before Parliament, Press conferences, etc. It was Mr. Sangwa’s submission that in the event of the President being attacked there are many ways in which he could respond. Mr. Sangwa also cited the cases of Derbyshire City Council v Times Newspapers (8) at 540 City and Chicago Tribune Co. (9), Hector v Attorney-General of Antigua and Barbuda (10) Lingens v Austria (11) which emphasise the

importance of freedom of expression in both the criminal and civil sphere and the importance of criticism of the government in a democratic society. People who hold public office, such as the President should be subject to criticism because the President commands great powers the exercise of which may have serious consequences on the citizens. It is, therefore, Mr. Sangwa argued that those likely to be affected should be at liberty to criticise the President. Further Mr. Sangwa submitted that the President more than anybody else should be open to the severest criticisms even those that may appear to the authorities to be offending. Mr. Sangwa then cited the case of Die Spoorbond v South African Railways (12) which decides that the State cannot use the resources of the tax payers to try and punish those very people providing those resources in a libel suit. Citing the case of New York Times Co. v Sullivan (13) Mr. Sangwa submitted that for a public officer to succeed in a libel action he should prove not only that the statement made is defamatory but also that the statement is malicious or recklessly made.

Towards the end of his submissions Mr. Sangwa referred the court to the case of Zundel v The Queen and Others (14) which he contends deals with provisions similar to those in Section 69 of the Penal Code. In that case it was held that the publication was protected by Section 2 of the Charter. (The provisions dealt with restrictions on certain publications which I will deal in detail later in my judgment). Mr. Sangwa ended by saying the Section 69 of the Penal Code defies all criteria of limitations which can be imposed on freedom of expression and, consequently unconstitutional and should be struck down in that it contravenes Article 20 of the constitution.

Mr. Simeza argued the second limb of the Applicants case which deals with the contention that Section 69 of the Penal Code contravenes Article 23 of the Constitution of Zambia in that is discriminatory in its effect. It was Mr. Simeza’s submission that the derogatory permissible under clauses (4) (5) and (7) of Article 23 of the Constitution are not applicable to this case. Mr. Simeza submitted that the mere fact that Section 69 of the Penal Code refers to libel committed against the President only is contravention of Article 23 (1) of the Constitution which prohibits the existence or enactment of any legislations or a particular section in a particular legislation which if enforced or observed will have the effect of discriminating against citizens or individuals in the country. Mr. Simeza then cited South African cases of Guzona v Council of State of the Republic of Ciskei (15) and S v Ggobo and Others (16) to support the proposition that it is unconstitutional for the President or the equivalent of the President to be given special position as compared to the other citizens. It was Mr. Simeza’s submission that the effect of Section 69 of the Penal Code is to elevate the President above the law and therefore creates for the citizens in equality of treatment before the law. This, Mr. Simeza submitted contravenes Article 23 (1) of the Constitution. Further Mr. Simeza argues that there is absolutely no reason why the President of the Republic of Zambia should be afforded greater protection than that possessed by other citizens of Zambia when in fact all human beings are born free and equal in dignity and rights. Furthermore Mr. Simeza submitted that it is unconstitutionally for the President to be given a privilege status in the criminal justice process when other citizens have only recourse to the Defamation Act. This, Mr. Simeza submitted, goes counter to the notion of a democratic society. Further Mr. Simeza submitted that a law such as that contained in Section 69 of the Penal Code cannot be reasonably justified in Zambia. Mr. Simeza ended by urging the court to strike down Section 69 of the Penal Code for unconstitutionality. The test of reasonable justification is objective regardless of the society developed or developing.

In reply the learned Principal State Advocate Mr. Kinariwala submitted that it is accepted law that there is a presumption that Parliament acts constitutionally and that the laws it passes are necessary and reasonably justified. In this respect Mr. Kinariwala cited the case of Arzika v The Governor of Northern Region (17) which was quoted with approval in Feliya Kachasu v Attorney-General (4) at page 162 lines 40 to 442. Further Mr. Kinariwala citing the case of Feliya Kachasu v Attorney-General (4) submitted that the burden to prove the unconstitutionality of the provisions. It was Mr. Kinariwala’s submission that this appears to be the same position in the United States of America and in this regard he quotes a passage from Willoughly (18) where the learned author says at page 42:

“American courts have reiterated the doctrine that an Act of a co-ordinating legislative body is not to be held unconstitutional if by reasonable interpretation of the constitution or the statute itself the two can be harmonised.”

On the same page the learned author quotes a passage from the case of Dartmouth College v Woodward (19) which justifies the presumption of constitutionality on the ground of giving decent respect due to the wisdom, integrity and patriotism of the legislature and places on anyone who challenges the validity of a provision a burden to prove such unconstitutionality beyond all reasonable doubt.

It was Mr. Kinariwala’s submission that in determining the inconsistency of a law with a fundamental right the court must have regard to the real effect and impact thereof upon the fundamental right in question. In this respect Mr. Kinariwala cited the case of Re Kerala Education Bill (20) then dealt with the issue of constitutionality as contended by the accused persons. On the submission that under Section 69 of the Penal Code truth is no defence and therefore a person can be jailed for telling the truth as long as that truth brings the President into contempt and ridicule, Mr. Kinariwala argued that only a person who publishes a defamatory matter with intent to bring the President into hatred ridicule or contempt (sic) can be found guilty and the burden of proof is on the prosecution. It was Mr. Kinariwala’s submission that the arguments advanced on behalf of the accused persons shows failure to appreciate the definition of defamation. After reciting one of traditional definitions of defamation, Mr. Kinariwala submitted that where one is charged with defamation of the President truth of the words complained of is a defence. In this respect, Mr. Kinariwala referred to Archbold - Criminal Pleading Evidence and Practice 40th Edition at paragraphs 3640 and 3646.

On the existence of Section 69 of the Penal Code on the statute book, Mr. Kinariwala submitted that the section is not a hindrance to the accused persons in the enjoyment of their freedom guaranteed by Article 20 of the Constitution. The accused persons are free to hold opinions, to receive ideas and information, to impart and communicate ideas and information save that that freedom is not a licence to abuse, to insult and to play with other people’s reputation and to ridicule. It was Mr. Kinariwala’s submission that the accused persons can enjoy their freedom of expression without defaming the President with intent to bring him into hatred, ridicule or contempt (sic). It was Mr. Kinariwala’s submission that the accused persons have not been hindered, are not being hindered and will not be hindered in the enjoyment of their freedom of expression by reason of section 69 of the Penal Code being on statute books. Further Mr. Kinariwala argued that there is no material before the court upon which the court can find that the accused persons’ freedom of expression has

been hindered, is being hindered and will continue to be hindered. The trial has not began in the lower court and no evidence has been adduced to she how the accused persons freedom of expression has been hindered, is being hindered and will continue to be hindered.

Furthermore Mr. Kinariwala submitted that defence concede that freedom of expression is not absolute but limited by the provisions of Article 20(3). It was Mr. Kinariwala’s submission that although the defence argument that the burden of proving the derogations in Article 20(3) lies on the State is supported by the judgment in Patel v Attorney-General (1) in Feliya Kachasu v Attorney-General (4) the High Court has taken a different view. Referring to page 162 lines 45 and 46 and page 163 lines 1 to 24 in Feliya Kachasu that the burden of proving the derogation lies on the accused persons and not the State.

In reply to the submissions by the defence that the President does not require protection under our constitutional set up where the President is a leader of a political party with an interest to serve and not above politics and therefore criticism of him of the worst kind is indispensable because it is an occupational hazard for anybody who takes up the office of the President, Mr. Kinariwala, citing the definition of criticism in the Oxford English Dictionary, submitted that one has to restrict himself to the limits of acceptable criticism and not to enter the arena of defamation of the President. He argued that the freedom of expression envisaged by Article 20 is not a licence to abuse, insult and ridicule others. Mr. Kinariwala went on to argue that by keeping Section 69 of the Penal Code on the statute books Parliament in its wisdom had decided that the President should not be defamed and that those who defame the President commit an offence.

Mr. Kinariwala argued that by placing Section 69 of the Penal Code under the chapter dealing with offences against public order Parliament had decided that to allow people defame the President will lead to disturbing the maintenances of public order. Further the mere fact that parliament has allowed Section 69 of the Penal Code to remain on the statute books up to now is proof that it is reasonably required in the interests of public order and for the purpose of protecting the reputations, rights and freedom of other persons. Article 20(3) is clear on this. It was Mr. Kinariwala’s submission that if the reputation of the President is not protected but destroyed by defamtory statements, verbal or written, public order will be adversely affected.

Further Mr. Kinariwala submitted that Article 11 of the Constitution makes it clear that the limits placed on the various fundamental rights and freedoms are designed to ensure that the enjoyment of the said rights and freedoms of others or public interest. From this promise Mr. Kinariwala argued that by his very position, it is in the interest of the public that the President enjoys the highest reputation and if so he should be protected from defamation.

While conceding that when determining whether a particular legislation is reasonable required the test is an objective one Mr. Kinariwala submitted that the court should apply the test to the specific conditions obtaining in the democratic society concerned. Therefore, in determining whether Section 69 of the Penal Code is reasonably required in Zambian democratic society the court should take into consideration specific conditions operating in Zambia viz:

1. Prior to November, 1991 Zambia was a One Party State for continuous period of 27 years (sic)2. During the period of 27 years democratic institutions gradually disappeared3. Multi-party politics were re-introduced after a period of 27 years (sic)4. Zambia is an under developed country5. It will take quite some time to build up democratic institutions6. The standard of journalism is undoubtedly poor and needs very much to be improved

Having regard to these conditions, Mr. Kinariwala submitted, that it can be said that Section 69 of the Penal Code is not reasonably justified in a democratic Zambian society. Removal of Section 69 of the Penal Code from the statute books, Mr. Kinariwala argued, will lead to indiscriminate defamation of the President bearing in mind the standard of journalism in this country and this will not be in the interests of public order and public interest. It was Mr. Kinariwala’s submission that once the reputation of the President is destroyed the reputation of the country will be adversely affected.

As regards the foreign cases cited on behalf of the accused persons Mr. Kinariwala dismissed them summarily as being irrelevant to the Zambian situation and to the issue before court. In respect of the case of New York Times Vs Sullivan Mr. Kinariwala further argued that while in the First Amendment there is no limit there are limiting provisions in our Constitution.

In conclusion on this issue Mr. Kinariwala submitted that the accused persons bear the burden to prove the unconstitutionality of Section 69 of the Penal Code but have failed to do so. He, therefore, invited the court to find that Section 69 of the Penal Code does not conflict with Article 20 of the Constitution and therefore constitutional.

As regards the issue of Section 69 of the Penal Code being in conflict with Article 23 on ground of being discriminatory Mr. Kinariwala submitted that the discrimination envisaged by Article 23(1) and (2) is that referred to in Article 23(3) which is based on race, tribe, sex, place of origin, marital status, political opinion, colour or creed. Mr. Kinariwala argued that the alleged discrimination that the accused persons are complaining of is not covered by Articles 23(3) of the Constitution. Mr. Kinariwala then drew comparison with provisions from Caps 17 and 49 of the Laws of Zambia which confer special privileges on certain persons but which provisions cannot be said to be in conflict with the constitution by reason of being discriminatory. Likewise the legislature has conferred privileges upon the President under Section 69 of the Penal Code. It was Mr. Kinariwala’s submission that Section 69 of the Penal Code is not discriminatory in its effect and does not contravene Article 23 of the Constitution.

As regards the South African cases referred to by the accused persons Mr. Kinariwala’s reply was that the issue dealt with there are different from the issue before the court. In any case, he argued, the situation in Zambia is quite different. Having recourse to Section 7 of the Constitution of Zambia Act 1991 Mr. Kinawiwala argued that the protection given to the President under Section 69 of the Penal Code is a privilege conferred by the legislature under that section.

Mr. Kinariwala concluded by submitting that there is no merit in the two issues raised by the accused persons and invited the court to find against the accused persons on both issues.

Mr. Sangwa arguing the first issue on behalf of the accused persons replied to Mr. Kinariwala’s submission. Mr. Sangwa’s reply mainly covered matters he had raised earlier on in his submissions. Here I highlight only the new points he raised.

Mr. Sangwa challenges the Principle in Dartmouth college v Woodward (19) that the standard of proof where on alleges unconstitutionality of a stature is proof beyond all reasonable doubt. Mr. Sangwa contends that this constitutional matter is a civil matter which falls within the civil jurisdiction of the court and in this country it is trite that in civil matters and standard of proof is on a balance of probabilities. In any case Mr. Sangwa argued the principle in Dartmouth Case (19) is only persuasive to this court. As regards the interpretation of Section 69 of the Penal Code is justified. The issue whether Section 69 of the Penal Code is justified in a democratic state which it is not. In reply to Mr. Kinariwala’s submission that there is no evidence to prove hindrance. Mr. Sangwa submitted the fact that the accused persons are before court is sufficient proof. On the submission that it is the duty of the accused persons to prove that they come under the ambit of Article 20(3) Mr. Sangwa argued that the proposition at page 163 in Feliya Kachasu v Attorney-General (4) lines 5 to 15 apply only to Kachasu case and is not a principle applicable to other cases. Consequently the burden of proof is on the State to prove that Section 69 of the Constitution is justifiable under Article 20(3). It was Mr. Sangwa’s submission that no evidence has been adduced to prove that Section 69 of the Penal Code is justifiable under Article 20(3). Mr. Sangwa then referred the court to the cases of Patel v Attorney-General (4) where affidavit evidence was led.

To the submission that Section 69 of the Penal Code is still on statute books because parliament in its wisdom had decided that the President should not be defamed, Mr. Sangwa argued that the court in this case is not bound by the wisdom of the legislature. He argued that the legislature like any other organ of the Government is bound by the constitution. There is no evidence that if the President is not protected by Section 69 of the Penal code there will be a disturbance of public order or anarchy in this country. The fact that the Section 69 of the Penal code is still on the statute books is not proof, as contented by Mr. Kinariwala, that it is reasonably required in the interests of public order and in the interest of the rights and interests of other persons. It was Mr. Sangwa’s submission that Section 69 of the Penal Code is still on the statute books because it has never been challenged before and largely because of the presumption of constitutionally which they are now challenging and on which the court is asked to rule.

While conceding that democratic instructions were destroyed during the One Party State era and that it will take a long time to rebuild them, Mr. Sangwa argued that steps in that direction should be made by the repeal of Section 69 of the Penal Code and such other laws.

On the foreign authorities cited Mr. Sangwa submitted that though the facts are different the authorities are relevant as the laid down principles of la and specific areas of the judgments have been pointed out.

Mr. Sangwa concluded by saying that the accused persons have been hindered in the enjoyment of their freedom of expression as guaranteed by Article 20. The Kachasu case (4) is clear on what hindrance is. Mr. Sangwa argued that the State has proved that Section 69 of the Penal Code is

justifiable under Article 20 (3) and urged the court to find that Section 69 of the Penal Code is reasonably justifiable in a democratic society and, therefore, unconstitutional.

Mr. Simeza who argued the second limb of the accused persons case, namely that Section 69 of the Penal Code is in conflict with Article 23 on ground of being discriminatory submitted that Article 23 (3) is merely illustrature of the discrimination provided for but is not conclusive especially when Article 23 (3) is read with Article 23 (1) which confers the right. Section 69 of the Penal Code, Mr. Simeza argued, must therefore be in conflict with Article 23 (1).

As to the comparison Mr. Kinariwala draw between Section 69 of the Penal Code and provisions in other statutes in Zambia, Mr. Simeza submitted it is of no assistance to this court because we are not dealing with all statutes in Zambia to see if there are statutes which are discriminatory or not.

As regards the reference of Section 7 of the Constitution of Zambia Act which Mr. Kinariwala referred to Mr. Simeza argued that these provisions are transitional provisions and there is no dispute about them. It was Mr. Simeza’s submission that Article one of the constitution makes the constitution itself the supreme law of Zambia and any law such as Section 69 which is inconsistent with the provision of the constitution should be declared void. He argued that the President like any other in Zambia is well protected from being defamed by the defamation Act Cap. 70 of the Laws of Zambia (21). It was Mr. Sangwa’s submission that there was no reasonable requirement to have been special provisions specifically for the President. That is the position at common law. Section 69 of the Penal Code does not cover the President. Therefore, the argument that the President must enjoy the highest protection to enhance public order fails because this protection should also have been extended to the Vice President. It was Mr. Simeza’s argument that it is unconstitutional to give the President a privileged status which is not accorded to other individuals or citizens because it makes the President more equal than the others.

When considering this case I have borne in mind the seriousness of the issues involved. This is not an ordinary case of a dispute between citizens per se or a case where the accused is being prosecuted for having stolen some other person’s property or having assaulted somebody. It is a case where two citizens of this country, who are now the accused are pitted against the might of the State for having allegedly committed an offence during the exercise of what the accused persons themselves perceive as their fundamental freedom enshrined in, and conferred upon, them by the Constitution of Zambia itself (therein referred to as the Constitution). Moreover the fundamental freedom of expression which the two Accused persons (hereafter to as the Applicant’s) thought they were pursuing is central to human activity at whatever level of civilization or development. Without freedom of expression some of the other freedoms will be rendered nugatory. To cite but a few examples, the freedoms of assembly and association and freedom of conscious will be impracticable to exercise without people expressing themselves either by word of mouth or by writing. It would be difficult for instance for churches to conduct services and for politicians to propagate their political ideas to other person and the electorate.

I, therefore, carry a grave responsibility when deciding this case because the issues before me are graves ones.

The Applicants published some allegedly offering article in a news paper called “The Post” (which I will hereinafter refer to as the news paper) subsequent to this publication the Applicants were arrested and later appeared before the Magistrate at Lusaka. It was this arrest and appearance in court which stimulated the application now before me.

In their application the Applicants posed two questions for the determination of the High Court viz:

1. “Whether Section 69 of the Penal Code is or is not conflict with Article 20 of the Constitution of Zambia.2. Whether Section 69 of the penal Code is or is not in conflict with Article 23 of the Constitution of Zambia.”

Consideration of whether Section 69 of Penal Code Cap. 146 of the Laws of Zambia (hereinafter referred to simply as Section 69) is in conflict with the constitution by reason of limiting freedom of expression of necessity requires the consideration of the law of defamation generally and in particular the other provisions in the Penal Code which criminalise and punish certain publications. This is so because both civil and criminal sanctions against defamation have what is called a chilling effect on the freedom of expression.

The other provisions in the Penal Code which I have in mind are Section 57 (21) dealing with sedition, Section 71 (22) dealing with defamation of foreign princes and Section 191 (23) dealing with what is called criminal libel. It will be noted from the definition of “seditions Intention” in Section 60 (24) that Section 57 prescribes publications which may be criticisms of the government and Government Institutions in Zambia if that criticism goes beyond the acceptable exceptions.

Libel is a crime as well as an actionable wrong. “An action for libel ,” it was said in Cassell and Company Limited v Broome (25), “in a private legal remedy, the object of which is to vindicate the Plaintiffs reputation and to make reparation for private injury done by the wrongful publication to a third person or persons of the defamatory statement concerning the plaintiff” Per Lord Hailsham LC.

Historically libel was also treated as crime on the ground that it had a tendency to arouse angry passions, provoke revenge and thus endanger public peace: R v Helbrook (26). But the current view seems to indicate that criminal prosecution for libel is justified on ground of public interest and the libel itself being serious. Indeed it has been said in Goldsmith v Pressdam Limited (27) that an indictment shall lie;

“Where it is in the public interest that criminal proceedings should be brought, taking into account the importance of the person defamed and the gravity of the libel.”

And in Gleances v Dakin (28) it was held that the libel should be sufficiently serious to justify, in the public interest, the institution of criminal proceedings. Again in Goldsmith v Pressdam (27) at page 485 Lord Denning said:

“A criminal libel is so serious that the offender should be punished by the state itself.”

And in the same case Lord Dilhone said at page 670 that:

“The libel must involve the public interest.”

So criminal prosecutions for libel are generally justified on ground of public interest because the injury it causes is of public concern while actions for libel are justified on the ground that they vindicate the plaintiff’s reputation because the injury caused is of private concern but both have the effect of limiting freedom of expression. What are called gagging charges and writs can have a chilling effect on the freedom of expression. As I understand the Applicant’s case they are prepared to suffer the hindrance of their freedom of expression by libel actions but they find themselves averse to criminal prosecutions.

Of course I am not here concerned with the civil aspect of libel but only with the criminal aspect of it so far as it is a fetter on the freedom of expression. Accordingly I part company with libel action here.

I propose to deal with the first issue which was argued by Mr. Sangwa, namely whether Section 69 is in conflict with Article 20 of the Constitution.

It is common cause that freedom of expression is not absolute and that it is subject to the derogations in Sub Article 3 of Article 20 of the Constitution. The controversy is as to whether the provisions of Section 69 fall under Sub Article 3 of Article 20 of the Constitution or not and who bears the burden to prove that the provisions of Section 69 are covered by Sub Article 3 of Article 20 of the Constitution.

A lot of learned submissions were placed before me. Numerous cases from Zambia and other jurisdictions were also cited. I have carefully considered all the submissions and the cases cited to me.

It is appropriate to start with the submissions dealing with the question of who bears the burden of proof. It is not in dispute that the Applicants bear the burden to prove that their fundamental freedom has been contravened and that the provisions which are alleged to have hindered the Applicants in the enjoyment of their fundamental freedom are not reasonably justifiable in a democratic society.

However, the Applicants join issue with the State on who bears the burden of proving that the provisions concerned come within the permitted derogations under Sub Article 3 of Article 20 of the Constitution and the standard of proof required.

As to who bears the burden of proof Mr. Sangwa for the Applicants submitted that the State bears the burden of proof and heavily relied on the case of Patel Vs Attorney-General (1). Mr. Kinariwala for the State submitted otherwise. He argued that the burden is on the Applicants to prove that the provisions concerned are not covered by the permitted derogations. In this respect he cited the case of Feliya Kachasu and Attorney-General (4).

In Feliya Kachasu v Attorney-General, Bladgen CJ decided the issue of who bears the onus of proving that the law concerned fell within the permitted derogations by having recourse to the presumption of constitutionality. Following that line of reasoning the conclusion that he who challenges a presumption bears the burden of proof is inevitable because

(Page 26 from the script missing here)From unconstitutionality, have openly strained the language of the statute or narrowed down its meaning. At page 201 Basu concludes by saying that when the court strained the language of a statute when the statute is plainly capable of a different meaning or wider meaning, the court is leaving the citizen, as to his subsequent conduct to the vageries of statutory interpretation rather than constitutionality and the position of the citizen is more and more hazardous according to the degree of perversion which the language suffers at the hands of the court in its attempt to serve the statute. I respectfully agree with the learned author’s observations.I make no apologies for having extensively quoted from Basu because I think that his observations bring to the fore the dangers of religiously following the presumption of constitutionality. Sub Article 3 of Article 20 stipulate conditions precedent for the derogations to be valid and these conditions are peculiarly within the knowledge of the State. I do not, therefore, see the justification for shifting the burden to prove them on the Applicants simply because of the presumption of constitutionality. I for my part would wish to have nothing to do wit this presumption of constitutionality as it tends to put the citizen beyond the pale of the constitution.Mr. Kinariwala citing a passage from the case of Dartmouth College v Woodward (19) quoted in Willoughby on the Constitution of the United States of America Volume 1 referred to the presumption of constitutionality which I have already dealt with. The passage ends with the sentence that he who challenges the validity of a law passed by the legislature must prove its violation of the constitution beyond all reasonable doubt.Mr. Sangwa’s reply to this was that the constitutional matter before the court is basically a civil matter and in this country the standard of proof in civil matters is proof on a balance of probabilities. In any case Mr. Sangwa argued the decision in Dartmouth College v Woodward (19) is only of persuasive effect to this court. I am inclined to accept that on any issue where the applicants in a case of this nature bear the onus of proof, they are required to satisfy the court only on a balance of probabilities. The proof beyond all reasonable doubt referred to in the American case of Dartmouth College v Woodward (19) appears to me to be part of the judge’s zeal which Basu referred to and is intended to buttress the presumption of constitutionality.I find it rather odd and a contradiction in terms to suggest that in a case where a citizen is embroiled in a legal battled with the State for his fundamental freedoms and rights enshrined the Constitution the citizen should bear a very high standard to prove beyond all reasonable doubt that in fact his rights have been infringed while the State bears no burden at all.After disposing of the issue of burden of proof I must deal with the test to be applied when considering whether the provisions impugned are reasonably required. There is no dispute on this issue. It is common cause that the test is an objective one. Related to the issue of the test to be applied is the fact that in determining the inconsistency of a law with a fundamental right the court must have regard to the real effect and impact that law has on the fundamental right in question. On this issue the parties are also in agreement.Mr. Sangwa in his submissions had challenged the constitutionality of Section 69 on many grounds which I now deal with.

Mr. Sangwa put in the forefront of his submissions the argument that Section 69 is unconstitutional because under Section 69 truth is not a defence so that one can be sent to jail for speaking the truth provided that, that truth has brought the President into contempt and ridicule. For this reason Mr. Sangwa submitted that Section 69 cannot stand vis-à-vis Article 20 of the Constitution.But when Mr. Kinariwala in his submissions in reply pointed out that in fact the offence created by Section 69 is defamation and that in defamation truth, inter alia, can be a defence. Mr. Sangwa abandoned his earlier position and argued that the interpretation of Section 69 and the possible defence which can be raised under it is not the issue. The issue is whether Section 69 is reasonably justified under Article 20(3) of the Constitution. Further Mr. Sangwa submitted that the defences Mr. Kinariwala referred to pertain to the law as it exists in English under Section 6 of the Libel Act 1843. This submission takes me aback because it is in the teeth of English Law (Extention of Application) Act Cap. 4 of the Laws of Zambia Section 2(b) of which states that Acts passed in Britain before the 17th August, 1911 are applicable to Zambia. However, as Mr. Sangwa later submitted, after shifting from his earlier argument, I am of the opinion that whatever defence there may be or may not be under Section 69 is not the real issue. That raises the issue of the constitutionality or otherwise of Section 69 is not that there are defences or no defences available to a person charged under it but its limiting effect on the freedom of expression. I do not therefore intend t engage in interpreting the provisions of Section 69.Mr. Sangwa citing the case of Feliya Kachasu v Attorney-General (4) submitted that for one to prove that his rights under Article 20 of the Constitution, one has only to prove that he had been hindered in the enjoyment of his rights and not that he has been prevented. He argued that in this case the Applicants have been hindered, are being hindered and will continue to be hindered in the enjoyment of their freedom of expression vis-à-vis the President. As proof Mr. Sangwa pointed to the charge which the Applicants now face under Section 69. Further Mr. Sangwa argued that Section 69 places a prior restraint on freedom of expression because it forbids publication of any matter that is likely to bring the President into ridicule etc. In this regard Mr. Sangwa invited the court to find that if Section 69 remains on the statute books, the Applicants freedom of expression will continue to be hindered.Mr. Kinariwala’s reply to those submissions is that the existence of Section 69 on statute books does not hinder the Applicants in the enjoyment of their freedom guaranteed under Article 20 of the Constitution. It was Mr. Kinariwala’s submission that the Applicants are free to hold opinions, to receive ideas and information and communicate ideas and information as long as the Applicants do not take their freedom to mean a licence to abuse, insult play with other people’s reputations and to ridicule. Further Mr. Kinariwala submitted that the Applicants are free to enjoy freedom of expression without defaming the President. Furthermore, Mr. Kinariwala said that there is no material before the court upon the basis of which the court can be invited to find as a fact that the Applicants freedom of expression has been, is being and will continue to be hindered.In considering this issue I think it is convenient first to deal with that part of Mr. Kinariwala’s submissions that there is no material before the court upon which the court can find as a fact that the Applicants’ freedom of expression has been infringed. In the view I take, I do not think this can be a serious issue for discussion and I find myself with no difficulty in resolving it. On the material available before the court, it is common ground that the accused were arrested for having published some article in the newspaper about the President. Of course by the time the Applicants were arrested, they had already exercised their freedom of expression. What is there now, is threat of likely hindrance in their enjoyment of the freedom of expression vis-à-vis the President (as they put

it). As it was said in Feliya Kachasu v Attorney-General (4) hindrance need not amount to prevention. The mere threat of a criminal prosecution can amount to hindrance and the Applicants can be entitled to redress unless Section 69 which authorises such interference and under which Applicants area charged is covered by the provisions of sub Article 3 Article 20 of the Constitution.While conceding that freedom of expression is not absolute Mr. Sangwa submitted that Section 69 is not reasonably justifiably in a democratic state. Mr. Sangwa referred the court to the cases of Patel v Attorney-General (1) and Feliya Kachasu v Attorney-General (4) on the definition of a democratic state. It was Mr. Sangwa’s submission that as freedom of expression is the life blood of any democratic society, any law which attempts to derogate freedom of expression as Section 69 does is not justifiable in a democratic society. Mr. Sangwa referred to the cases of Handyside v The United Kingdom (6) at page 754 paragraph 49, Castells v Spain (7) page 263 paragraphs 68, 69 and 70, Derbyshire County Council v Times Newspapers Limited and Others (8) at page 50 and other case on the theme of the importance of the freedom of speech and free press in a democratic society and the need and importance of criticising public officials and the government in a democratic society. On these premises Mr. Sangwa submitted that the President more than anybody else should be open to the severest criticism even though that criticism seems to the authorities to be offending. Relying on the case of Die Spoorbond v South Africa Railways (12) Mr. Sangwa made the proposition that the state cannot use the resources of the tax payers to punish the very people providing the resources in a libel suit. It was Mr. Sangwa’s submission that where mentioned in Castells case (7) for instance press conference a suitable statements in parliament by the appropriate minister etc. Mr. Sangwa submitted that the case of Zundel v The Queen and Others (14) dealt with a provision similar to our Section 69.Before I refer to Mr. Kinariwala’s reply I must say here that the case of Zundel properly read would not seem to support the proposition Mr. Sangwa has canvassed for. That case was dealing with a law which when originally passed was intended to deal with a certain mischief prevalent at that time but the offence Zundel allegedly committed was a difference mischief from the one for which the law was enacted. In fact there was a shift in purpose. That case can, therefore, not be compared with the matter now before me.Mr. Kinariwala’s reply was that the Applicants have laid emphasis on criticism. Referring to the definition of the word “criticism” in Oxford English Dictionary Volume Two at letter “c” page 1181 Mr. Kinariwala argued that acceptable criticism of the President is perfectly in order. But Mr. Kinariwala submitted that the freedom of expression envisaged and guaranteed by Article 20 is not a licence to abuse, insult and ridicule others. By keeping Section 69 on the statute books the legislature in its wisdom has decided that the President shall not be defamed and that those who defame the President should be punished.It cannot be denied that freedom of expression, press and criticism of the government and public officials including the President himself is very essential in a democratic society. Indeed the Zambian Constitution underscores the importance of freedom of expression and freedom of the press by enshrining it in Article 20 of the Constitution. And the provisions in the Penal Code which limit freedom of expression and freedom of the press appear to me to admit of criticism. Section 69 does not anywhere say that nobody will speak or publish anything of the President. The sections dealing with sedition and criminal libel also admit of criticism. And the provisions in the Defamation Act Cap 70 of the Laws of Zambia provide immunity against libel suits in certain circumstances. The crisp issue is therefore what kind of criticism is allowed. Mr. Kinariwala submits that criticism must be acceptable criticism. On the other hand Mr. Sangwa’s position appears to be that any type of

criticism should be allowed and any law which restricts such kind of criticism is unjustifiable in a democratic state.I have carefully read and considered all the authorities cited to me and those I have come across in my own research but I have not been able to find any authority in Zambia or other jurisdictions including those with jurisdictions similar to ours and International Courts for the proposition that in a democratic state one can criticise the head of state or the government in any manner however, scurrilous, malicious and destructive of the President or Government Institutions as Mr. Sangwa’s submissions taken to their logical conclusions would suggest. Mr. Sangwa heavily relied in his submissions; the European Commission of Human Rights expressed its opinion on free debate in these terms:

“67. The Commission considers that the free debate that Article 10 of the Convention is designed to guarantee is not - no matter how fundamental it may be in a democratic society - unlimited in nature. It is obvious that it does not cover the public expression of facts that are not backed by any prime expression of facts that are allegations made against persons or institutions''.And the International Convention on Civil and Political Rights Article 19 provides:1. ------------------------------------------------------ “2. Every one shall have the right to freedom of expression; this right shall include freedom to seek, receive, and import information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carried with it special responsibilities. It may, therefore, be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.

(a) For respect of the rights or reputations of others; (b) For the protection of national security or public order, (order public), or public health or moralsI have no doubt that the matters in paragraph 2(b) above are what is compendiously referred to as public interest, and I am clear in my mind that the two International Conventions I have referred to above are in consonance with our own constitutional provisions as provided for in Article 20. Further the opinions expressed by the European Commission of Human Rights in Castells v Spain (7) fortify the view that there can be no unbridled freedom of expression in any democratic society. What there can be, I think, are different degrees of tolerance depending upon the maturity of the various democratic societies and the conditions obtaining in them.There is, therefore, no basis, both at international and municipal level, upon which an opinion that in a democratic society one can say whatever he pleases can be predicted upon. To hold the view contended for by Mr Sangwa would be making freedom of expression an end itself when in fact freedom of expression is only a means to the end of a free society. And a free society does not mean one where there is no regard for public interests and rights and reputation of other persons.I, therefore, accept Mr Kinariwala’s submission that the criticism required in a democratic society is acceptable criticism. In other words legitimate criticism motivated by desire to ensure that government affairs are properly run for the public good or criticism by a politician in the opposition to expose the shortcomings of the President and Government in power so that he can wrestle political power from them at the next election and use it to the benefit of the country.Bearing in mind that when considering whether the provisions impugned are reasonably justifiable in a democratic society the test is objective, I find that the Applicants have failed to satisfy me on a

balance of probabilities that Section 69 is not reasonably justifiable in a democratic state. Section 69 does not deprive any citizen the right to legitimately criticise the President or the Government.The last issue Mr. Sangwa argued was whether Section 69 was reasonably required within the ambit of Sub Article 3 of Article 20 of the Constitution. Mr. Sangwa started by submitting what “reasonably required,” as defined in Patel v Attorney General (1) at page 126 meant a “genuine present need; something more than desire although something less than absolute necessity.” Springing from this premise Mr. Sangwa submitted that there was no need to protect the President in the manner that Section 69 does. Quoting a passage from Professor Nwabweze “Presidentialism in Commonwealth Africa” at page 121 and 122, a passage I have already reproduced above Mr. Sangwa submitted that since our President is not above politics and has political interest to serve criticism of him even of the worst kind if indispensable in our political system and constitutional frame work. It was Mr. Sangwa’s submission that criticism is an occupational hazard, for any one taking up the office of the President. Further Mr. Sangwa argued that Section 69 is not reasonably required vis-à-vis the objectives stated in Sub Article 3 of Article 20 of the Constitution.Mr. Kinariwala’s reply to these submissions was that fact that parliament in its wisdom has created the provisions in Section 69 and places this offence under the chapter dealing with public order indicates that parliament is aware that if people are allowed to defame the President it will lead to a disturbance of public order. Further Mr. Kinariwala submitted that the very fact that parliament has allowed Section 69 to remain on the statute books up to now is proof that it is reasonably required in the interest of public order and for the purposes of protecting the reputations rights and freedom of other persons. Furthermore by allowing Section 69 to remain on the statute books, parliament wants to protect them reputation of the President from indiscriminate defamation which will consequently affect public order adversely. It was Mr. Kinariwala’s submission that Article 11 of the Constitution clearly states that the limitations placed on various fundamental rights and freedoms are designed to ensure that the enjoyment of these rights and freedoms by any individual does not prejudice the rights and freedoms of others or public interest. Mr. Kinariwala submitted that it is in the public interest that the head of state and government in whose hands vests the executive powers if the republic should enjoy the highest reputation and, therefore, he should be protected from defamatory statements verbal or written. Mr. Kinariwala argued that in applying the objective test whether provisions challenged is reasonably required in a democratic society, the court should take into consideration the specific conditions obtaining in that country. In respect of Zambia Mr. Kinariwala cited the following obtaining conditions:1. Prior to November, 1991 Zambia was a One Party State for continuous period of 27 years (sic)2. During the period of 27 years democratic institutions gradually disappeared3. Multi-party politics were re-introduced after a period of 27 years (sic)4. Zambia is an under developed country.5. It will take quite some time to build up democratic institutions.6. The standard of journalism is undoubtedly poor and needs very much to be improved.Having regard to these circumstances Mr. Kinariwala submitted that Section 69 is reasonably required in Zambia democratic society. It will not be in the interest of the public and public order to remove Section 69. Destruction of the President will also destroy the reputation of the country. As regarding the May foreign cases which Mr. Sangwa and Mr. Simeza quoted Mr. Kinariwala was content to dismiss them as irrelevant.

Finally on this issue Mr. Kinariwala submitted that the Applicants have failed to prove that Section 69 is in conflict with Article 20 of the Constitution.Mr. Sangwa countered these submissions by saying that there is not evidence adduced to prove that Section 69 is reasonably required under Sub Article 3 of Article 20 of the Constitution. Mr. Sangwa then referred to the case of Feliya Kachasu v Attorney-General (4) and Patel v Attorney-General (1) where affidavit evidence was led by the state. Furthermore Mr. Sangwa argued that the court in not bound by the wisdom of the legislature. The legislature like any other organ of the government is bound by the constitution. Further Mr. Sangwa that there is no evidence before court to prove connection between failure to protect the President by Section 69 and disturbance of public order and that removal of Section 69 will lead to anarchy in this country. Section 69 is still on the statute books not because it is required in the interest of public order and to protect interests of other persons etc. but is has never been challenged before and because of the presumption of constitutionality which they now challenge.While agreeing with the factors Mr. Kinariwala enumerated, Mr. Sangwa submitted that the starting point in building democratic institutions now is the repeal of Section 69 and many other such laws. On the authorities he cited he argued that they are relevant. Finally Mr. Sangwa urged the court to find that Section 69 if not reasonably required in a democratic society and therefore unconstitutional.I have again recounted these submissions in detail because I consider that of all the issues raised, the issue whether the provisions made under Section 69 are reasonably required in a democratic state was the most critical. Mr. Sangwa referred me to the definitions of democratic society in Patel v Attorney-General (1). It is not my wish to go into the definition of what a democratic society is. I content myself by saying that Zambia is a democratic society.Let me first deal with certain of Mr. Kinariwala’s submissions which I think are patently untenable and should be got out of the way before dealing with serious issues. I mean the issues of wisdom of the legislature, and continued existence of Section 69 on the statute books and the foreign authorities cited by Mr. Sangwa and Mr. Simeza.As Mr. Sangwa, in my view, quite properly argued the court is not bound by the wisdom of the legislature. One can not rely on the wisdom of the legislature to justify the validity of a law passed by the legislature. It is common knowledge that in Zambia, Parliament while exercising its wisdom has in the past passed legislations which the court has ruled unconstitutional. Here I only cite the Corrupt Practices Act, Act No. 14 of 1980. When passed by our Parliament that Act contained some provisions which conflicted with the constitution and which provisions appear to me to have been forced down the throat of the parliamentary draftsman. In the case of Aggrey Mukoboto Simataa and Regina Sanana Saasa Simataa v The Attorney-General (3) where Mr. Kinariwala appeared for the State, Muzyamba J as he then was had the occasion to sever the provisions impugned for being unconstitutional. Indeed article one of the constitution which he declares lows which conflict with the constitution to be void envisages a situation where Parliament may pass a law which is unconstitutional. Again as Mr. Sangwa argued and as I said earlier on in my judgment the wisdom of the legislature appears to be an extension or part of the principle of presumption of constitutionality.About the length of the time Parliament has allowed a law to be on the statute books. Here again I agree with Mr. Sangwa. I find this argument untenable. Non repeal of a provision does not validate it. The reason is simply that its validity is not challenged. For a provision to be valid, it must trace its validity from the constitution, in this case from Article 20 of the Constitution.

About the foreign authorities cited by Mr. Sangwa and Mr. Simeza, I must confess that I have failed to understand how Mr. Kinariwala finds all these authorities irrelevant. It is true that the facts are different but most of the principles of law propounded in these cases appear to me relevant to cases of this nature and illustrate how courts in other jurisdictions have dealt with similar cases. I am grateful to Mr. Sangwa and Mr. Simeza for their resourcefulness and I commend them.I now come to the critical issue whether the law contained in Section 69 is reasonably required in a democratic state.I have said earlier on in my judgment the from the authorities I have cited defamation law (criminal and civil) and sedition etc. is justified on the ground that it protects public interest and individual rights and freedoms. Clearly punishing people who allegedly defame the President can only be justified in public interest otherwise as it has been suggested by Mr. Sangwa, it would have been left to the President to personally sue those who defame him in circumstances like the case now under inquiry.Two diametrically opposed perceptions of the President have been canvassed for by counsel. To the Applicants the President is just like any other citizen except that he is a leader of a political party with political interests of his own to serve and he is Head of State because he was elected Head of State on his party ticket and his party is in power. He requires no more protection against defamatory attacks than that afforded to the other citizens by a libel action. Public funds, it was argued, should not be used to prosecute people who allegedly defame the President. In this regard Section 69 is, therefore, not reasonably required in a democratic state. On the other hand, the state perceives the President as the personification of the majesty of, and the, state itself. Consequently all necessary efforts should be made to protect his reputation from unwarranted attacks because not doing so could lead to a disturbance of public order.I must say that I find it difficult, very difficult indeed, to accept Mr. Sangwa’s submissions that it is not in the public interest to protect the President in the manner Section 69 does. In fact these submissions beg the question whether it is in fact in the public interest to allow people to say anything they wish of the President, however, scurrilous, malicious or destructive of him. Mr. Sangwa in an effort to buttress his submissions referred me to a passage in Professor Nwabweze’s Presidentialism in Commonwealth Africa. But on page 122 of the same book the learned author, subject to some qualification, cautions that what he said did not mean that criticism should be turned into a licence for vulgar insults against the Head of State. This statement in my view again fortifies my earlier holding that criticism should be legitimate criticism motivated by desire to see that the affairs of the government are properly run for the benefit of general public. And I have borne in mind that I should not fall into error by assuming that the interests of a person who publishes matters of other persons are necessarily synonymous with those of the public itself. Indeed Professor Prosser talking about freedom of the press in his book Handbook of the Law of Torts (30) says at page 584 and I quote;

“Freedom of Press justifies the publication of news and all other matters of legitimate public interest and concern.”Thus the freedom is subject to legitimate public interest and concern. It can therefore be seen from what I have said above that freedom of expression or freedom of the press is not so valuable that it is a bargain at any cost. At certain cost it cannot sell.In reply to Mr Kinariwala’s submissions that if the law allowed people to defame the President indiscriminatory it would lead to a break down in public order which will not be in the public interest, Mr Sangwa submitted that there is no evidence to prove that there will be anarchy in the

country if Section 69 were removed from the statute books. I find no authority either from writings of publists or case law to support this proposition. As it was said in Rex v Wicks (31) at page 386 Due Parcq J:“There is ------------------------------- no ground for the suggestion made at the Bar that it is incumbent upon the prosecution to prove that the libel in question would have unusually likely to prove the wrath of the person defamed, or that the person defamed was unusually likely to resent an imputation upon his character.”It appears to me that it is common cause that when determining whether Section 69 is reasonably required in the Zambian democratic society the obtaining conditions in Zambia should be taken into account. Mr. Kinariwala enumerated some six factors which I have already recited and which factors Mr. Kinariwala argued militated against the type of freedom of expression the Applicants are canvassing for. Mr. Sangwa while largely agreeing with these argued that in fact a start can be made towards rebuilding democratic institutions by removing from the statute books Section 69 and such other similar laws. The such other similar laws would certainly be like the provisions I have referred to with respect to defamation of foreign princes, criminal libel sedition etc.I appreciate the force of these arguments by Mr. Sangwa but they are untenable. Democracy in Zambia and indeed other third world countries is still young and fragile. I do not think even for the moment that we have reached or would wish to reach a stage to do what the Applicants contend for without plunging the country into chaos. It is a notorious fact that since we got independence the prevailing situation in Zambia has, more often than not, been one of excitement and stress. Further it is common knowledge that some cross section of our people easily take to the streets when merely infelicitous remarks are made against their party and party leaders. The demonstrations can be quite serious when the subject of ridicule is the President himself. Our newspapers are full of stories on inter-party fights.As I see it, the limitations that Section 69 places on our freedom of expression or freedom of the press is no more than the price we have to pay for belonging to our society, as John Stuart Mill put it:

“………………….. everyone who receives the protection of the society owes a return for the benefit, and the fact of living in society, records it indispensable that each should be bound to observe certain line of conduct towards others.” (32)Mr. Sangwa complained that the Applicants are in the newspaper business and with Section 69 in force they will find it difficult to operate. I think not. The quotation from John Stuart Mill applied to them and they must conform. In any case it is trite that the press has no greater or fewer rights than does the citizen for whom it is the surrogate.Before I leave this issue I wish to say that in my view Section 69 does not in any way disadvantage the Applicants or indeed anybody else in their enjoyment of the freedom of expression in pursuant of legitimate criticism. When the executive through the police or other law enforcement agents arrest persons for defamation of the President or sedition they act within what is called in International Tribunals their margin of appreciation. In other words they decide whether what has been said, according to the prevailing local situation, is likely to inflame passions and therefore a criminal prosecution should follow. In such circumstance it is easy to imagine a case where the accused person would argue that he said what is attributed to him but that it was legitimate criticism protected by Sub Article 3 of Article 20 of the Constitution. Then the High Court, so to speak, supervise the exercise of the margin of appreciation by the executive by scrutinising the evidence to see if what the accused person said was legitimate criticism under Sub Article 3 of Article 20 of the

Constitution. If the High Court so finds it will order that the accused person cannot be prosecuted or if he has already been prosecuted and convicted acquit him on the ground that what the accused person is protected by the Constitution and therefore not covered by the provision of the law he is alleged to have infringed.As Section 69 reads it is difficult to argue in the abstract and say in advance that anything that one may say about the President will be punished. If that were the case the High Court could easily pronounced it unconstitutional. An example of a provision which from the manner it was framed was obviously unconstitutional was Section 44 (1) (a) of the Corrupt Practices Act No. 14 of 1980 which required suspects to given sworn statements to the Director of Public Prosecutions explaining how they obtained certain properties in order to help the state in its investigations Aggrey Mukoboto Simataa and Regina Sanana Saasa Simataa Vs Attorney-General (3).In view of what I have said above my answer to the first question whether Section 69 of the Penal Code is or is not in conflict with Article 20 of the Constitution of Zambia, is that Section 69 of the Penal Code Cap. 146 of the Laws of Zambia is not in conflict with Article 20 of the Constitution of Zambia.I now come to the second issue which was argued by Mr. Simeza that is, that Section 69 conflicts with Article 23 of the Constitution in that it is discriminatory in its effect.In the view I take of this issue, I do not intend to recount the submissions in detail. The alleged discrimination, according to Mr. Simeza, is that in addition to the civil action available to the President and other citizens he is also protected by the criminal law in Section 69. Mr. Kinariwala, who made comparisons with other statutes conferring benefits and rights on gone officials, argued that the “discrimination” envisaged in Sub Article (1) of Article 23 is the one defined in Sub Article 3 of Articles 23 of the Constitution which refer to affording different treatment to different persons attributably wholly or mainly to their respective descriptions by race, tribe, sex, etc.Mr. Simeza’s reply to this was that the comparison with other statutes in Zambia is irrelevant; the issue is Section 69 which is impugned. It was Mr. Simeza’s submission that Sub Article 3 of Article 23 is not exhaustive it is merely illustrative of discrimination.I would not rest my judgment on comparisons made by Mr. Kinariwala or Section 7 of the Zambia Constitution Act of 1991 or the principles laid down in the cases which Mr. Simeza cited to me because the Constitution itself and the Penal Code provides the answer to the problem at hand.I have carefully read Sub Article 3 of Section 23 several time and I have found it difficult, very difficult indeed, for me to place the meaning Mr. Simeza has placed on Sub Article 3 of Article 23 of the Constitution. I agree with Mr. Kinariwala that the discrimination is only in relation to the matters enumerated therein. I find Sub Article 3 of Article 23 of the Constitution exhaustive and not illustrative as Mr. Simeza submitted. I say this with confidence because if the position contended for by Mr. Simeza were the case, I would expect to find expressions like “such as” or “any other form of discrimination.” To accept Mr. Simeza’s interpretation would be introducing glosses and interpolations into a provision which is very clear. Even if what Mr. Simeza contended for were the case, I would not rest my judgment on it for the reasons I give below.The argument that the President is over protected against defamation is also untenable and it must fail. The fact is that everyone living in Zambia including the President is protected by criminal law against defamation as long as the authorities consider it serious enough. In both cases public funds are used to prosecute the accused person. Those who defame the President are covered by Section 69. Those who defame foreign princes’ potentate ambassadors etc. are dealt by Section 71. Section

191 protects people other than those I have already referred above and I am sure in this category fall ordinary people from other countries on a visit to Zambia and who are defamed while in Zambia.One can see that there is no person including the President who is less or more protected by the law in Zambia. Apart from the personal immunity against civil suit and criminal prosecution during the tenure of his office, the President stands equal before the law with other citizens of this country. The immunity enjoyed by the President is not an issue in this case. If the argument is that only one section in the Penal Code should be used to protect all persons in Zambia regardless of their status, the answer will be that there are different sections dealing with defamation of the President and the foreign princes because Parliament wants to emphasise the status of these categories of people and the seriousness of the matter. The repercussions that follow the defaming of the President or a foreign potentate are not the same with those that follow the defamation of an ordinary person. To put it graphically one could say that the President is a big rock in a small pond. On the other hand the ordinary person is a small stone in a lake. When dropped into the lake, it only causes ripples. Hence the emphasis that a separate section should deal with defamation of the President.For the reasons I have given my answer to the second question whether Section 69 of the Penal Code is or is not in conflict with Article 23 of the Constitution of Zambia is that Section 69 of the Penal Code Cap 146 of the Laws of Zambia is not in conflict with Article 23 of the Constitution of Zambia.Having answered both questions in the negative I remit the case to the Magistrate at Lusaka to deal with the Applicants as accused persons according to law.Delivered in open court at Lusaka this 17th day of March, 1995.PATEL'S BAZAAR LIMITED v THE PEOPLE (1965) Z.R. 84 (C.A.)

COURT OF APPEAL BLAGDEN, C.J., WHELAN, J., EVANS Acting J.: 26TH JUNE, 1965

Flynote and Headnote

[1] Criminal law - Absolute liability - general considerations in determining whether Legislature intended an offence of absolute liability:

In determining whether the Legislature intended to create an offence of absolute liability, the following considerations are useful:

(1) the reasonableness of holding that mens rea is not an ingredient of the offence; (2) the object and scope of the prohibition; (3) the ease with which the purposes of the statute could be evaded if the defence of absence of mens rea were to succeed; (4) the nature and extent of the penalty.

[2] Public health - Sale of unwholesome food - absolute liability - section 79 (1) of Public Health Ordinance construed:

Subject to the accused's right to show 'reasonable excuse' for contravening section 79 (1) of the Public Health Ordinance, that section creates an absolute liability.

[3] Public Health - Sale of unwholesome food - burden of proof as to defendant's 'reasonable excuse' - section 79 (1) of Public Health Ordinance construed:

The onus is on the accused of establishing by a balance of probabilities that he had 'reasonable excuse' and is not on the prosecution to show the contrary.

[4] Public Health - Sale of unwholesome food - 'reasonable excuse' interpreted - section 79 (1) of Public Health Ordinance construed:

Section 79 (1) of the Public Health Ordinance requires a high standard of excuse before a person will be exempted from liability which, fundamentally, is absolute; the fact that the goods were wrapped before reaching the accused, although relevant to an action based on negligence, cannot serve as a 'reasonable excuse'.

Cases referred to:

(1) Copperfields Cold Storage Co. Ltd v R. 5 N.R.L.R. 248. (2) R. v Prince (1875) 2 C.C.R. 154; 44 L.J. 122.(3) Candy v Le Cocq (1884) 13 Q.B. D. 207; 53 L.J. 125.(4) R. v Tolson (1889) 23 Q.B. D. 168.(5) Anderson Ltd v Daniel [1924] 1 K.B. 138.

Statute construed: Public Health Ordinance (1930, Cap. 126), s. 79 (1), as amended.

For the appellant: Mitchley.For the respondent: Shoniwa.84

Judgment

BLAGDEN, C.J.: In this case the appellant, Patel's Bazaar Limited, appeals against a judgment of the High Court dismissing its appeal against a conviction of the Magistrate's Court at Monze for the offence of selling unwholesome food contrary to section 79 (1) of the Public Health Ordinance (Cap. 126).

The relevant parts of section 79 (1) of the Public Health Ordinance (which for convenience I shall continue to refer to as 'the Ordinance') read as follows:

' No person shall sell . . . without reasonable excuse any food for man in an ... unwholesome state....'

The facts of the case were simple and not seriously in dispute. On Saturday, 3rd October, 1964, a servant of the appellant company sold a wrapped sliced loaf to a customer from a consignment of such loaves which had arrived that very day from the manufacturers, Messrs Murdoch's of Livingstone. Upon being opened the next day it proved to be extensively contaminated with black mould. It was taken to the Monze Management Board on the Monday and opened by Mr Henderson, the Government Provincial Health Inspector, on the Tuesday - that is on the third day after its sale. He pronounced it as unwholesome. He described the mould as extensive and said that it had obviously been there for a week, possibly more. On the evidence the learned trial magistrate found that the bread was unwholesome at the time it was sold by the appellant company. That finding is not in dispute. Prima facie the appellant company was guilty of the offence charged, and the only substantial issue before the court was whether or not it had any 'reasonable excuse' for selling that unwholesome loaf sufficient to excuse it from liability under the Ordinance.

In both courts below the question of what precaution the appellant company took or should have taken against the possibility of any of its bread being sold in an unwholesome condition was extensively canvassed. It was contended on behalf of the State that the appellant company had taken no precautions at all; and it was contended on behalf of the appellant company that in the circumstances there were no precautions, or at any rate, no reasonable precautions which it could have taken, and in particular, that by reason of its course of dealing with the manufacturers who sold the bread no further precautions were necessary. With due respect, I do not think the presence or absence of adequate precautions was the proper criterion to apply. The section does not penalise the sale of unwholesome food without reasonable precautions or without proper diligence, but 'without reasonable excuse'.

The interpretation of the term 'without reasonable excuse' as used in section 79 (1) of the Ordinance, and the application of that term so interpreted, was considered in the case of Copperfields Cold Storage Co. Ltd v R 5 N.R.L.R. 248. That was a case which went on appeal to the Rhodesia and Nyasaland Court of Appeal and the judgment of that court delivered by Thomas, P., and reported on pages 264-9 establishes the following propositions:85

(i) [1] The onus is on the accused of establishing that he had 'reasonable excuse' and is not on the prosecution to show that he had not.(ii) [2] Proof of mens rea is not required to establish a contravention of section 79 (1). The liability imposed by that subsection is absolute, subject only to the exception that if the accused can show that he had a 'reasonable excuse' for contravening the section he will be excused from his liability.

[3] I do not share Mr Mitchley's apparent difficulty to visualise a liability which is absolute but in respect of which there can be circumstances in which the subject is excused. I would adopt the reasoning of Thomas, P., in the Copperfield case, and I cannot do better than repeat his words which appear at pages 268-9 of the report. They read as follows:

' Now there is no doubt that the maxim "actus non facit reum nisi mens sit rea" is a general principle of the English criminal law, and that the principle is applicable to statutory as well as to common law offences, except in those cases where the legislature intended to create an offence in

which mens rea was not a necessary ingredient. The legislature may absolutely prohibit the doing of an act and constitute an offence without reference to the state of mind of the offender and regardless whether he had any intention of breaking the law, or otherwise doing a wrongful act. However, no fixed rule can be laid down for ascertaining the intention of the legislature, and the Courts are left to determine from "other considerations" whether a guilty mind is a necessary ingredient in the statutory offence under consideration.

R. v Prince 2 C.C.R. 154; Cundy v Le Cocq, 13 Q.B.D. 207 and R. v Tolson, 23 Q.B.D. 186. From a review of these and other authorities it has been held that the "other considerations" include the following: The reasonableness or otherwise of holding that mens rea is not an ingredient of the offence; the object and scope of the prohibition; the ease with which the beneficial provisions of the Statute could be evaded if the defence of absence of mens rea could be set up, and the nature and extent of the penalty. Applying these criteria to the case leaves us in no doubt that the legislature intended that the prohibition under consideration should be absolute, and that mens rea should not be an ingredient of the offence.'

The substance of the appeal here is that in both courts below there was set too high a standard of 'reasonable excuse' and that on the evidence these courts should have found that there was a 'reasonable excuse'. It is true that the learned judge on appeal referred more than once in the course of his judgment to the onus on an accused person of showing 'reasonable excuse' in a case of this nature as being a heavy one. This is capable of misinterpretation. The onus of proof is no more than to establish a reasonable excuse upon the balance of probabilities. The difficulty which confronted the appellant company86 was not so much the discharge of the burden of proof as the adduction of an excuse which was not only sufficiently reasonable but also sufficiently excusatory to take it out of its absolute statutory liability. I think this is what the learned judge meant when he referred to the onus as being a heavy one.

There is no authority in England on the interpretation of the phrase 'without reasonable excuse' in connection with the sale of unwholesome food for the simple reason that the English Legislature has prescribed that the liability shall be absolute without any exception. To find a case for comparison it is necessary to look at other English legislation and it is difficult to find any which can really be regarded as in pari materia.

The nearest case in my view is the one cited by the learned judge namely, Anderson Ltd v Daniel [1924] 1 K.B. 138 where the interpretation and effect of section 1 of the Fertilisers and Feeding Stuffs Act, 1906 (6 Edw. 7, c. 27) was in question. Section 1 (1) of that Act provided in substance that a vendor of artificial fertiliser must give the purchaser an invoice stating the name of the articles, together with an analysis of its contents. Subsection (2) punishes a vendor who fails to give such an invoice 'without reasonable excuse'. The vendors in Anderson's case were selling quantities of a material known as 'salvage'. This was a trade designation meaning the sweepings of the holds of ships which had brought from abroad cargoes of various chemicals containing nitrogenous products, potash and phosphates. It was the custom of the trade to sell 'salvage' without giving such an invoice as was required by section 1 (1) of the Act, the reason being that it was commercially impractical and indeed virtually impossible to give it. The question to be answered in Anderson's case was accordingly, whether in the circumstances it could be said that the vendors had a 'reasonable

excuse' for not supplying the statutory invoice. The Court of Appeal, reversing the decisions of the courts below, held that they had not. Bankes, L.J., said, on page 146:

' It seems to me quite plain that the prohibitive expense or the physical impossibility of analysis of the fertiliser sold is not excuse for the absence of an invoice. The statute is directed to the sale of articles of which the analysis was impossible, just as much as, or possibly more than, to the sale of those which are difficult of analysis or which are commercially unprofitable to analyse.'

[4] Anderson's case is by no means parallel to the instant appeal but it is of assistance as giving some indication of the high standard of excuse required to exempt a person from liability which, fundamentally, is absolute. In the instant appeal no 'excuse' in the proper sense of this term has been adducted at all. All that has been advanced in effect has been matters in mitigation. What has been said is that in the circumstances it would not have been reasonable for the appellant company to have taken the precaution of opening up all or indeed any of the consignment of loaves to ensure that none were in an unwholesome condition; that there was nothing else it87 could have done short of that, and that in those circumstances there was reasonable excuse. Attention was drawn to the opinion expressed by Mr Henderson, the Government Provincial Health Inspector, who is an expert in public health matters, that if Mr Patel sold the consignment of bread of which this loaf formed part within a few hours 'he could not be faulted'. I would agree if Mr Patel, or the appellant company, were being prosecuted for negligence. But that is not the position.

Clearly the intention of the Legislature in framing section 79 (1) of the Ordinance was to afford the public maximum protection against the danger of their being sold unwholesome food. That intention would be entirely defeated if it were accepted, as was contended by Mr Mitchley, that the vendor could rely on the fact that the food was wrapped as affording him a reasonable excuse for selling it in an unwholesome condition. If that argument was held to be good as regards wrapped goods, it would have to be extended to all packaged goods whether they were in wrappings, tins, bottles, cartons or boxes, and I would imagine that this would exempt the average grocer from liability in respect of well over 50 per cent of his normal stock.

It is not part of this court's duty to point out what might or might not be a reasonable excuse within the meaning of section 79 (1). [1] The short point here is that it was for the appellant company to establish on a balance of probabilities, that it had a reasonable excuse for selling this one unwholesome loaf. On the evidence before him the learned Resident Magistrate held as a matter of fact that the appellant company had failed to do so. The learned judge on appeal supported that conclusion. I do not think we can quarrel with those decisions, and I would dismiss this appeal.

Appeal dismissed

Judgment

Whelan,J.: I agree.

Judgment

Evans, Acting J.: I agree.88KAZEMBE AND ZEBRON v THE PEOPLE (1969) Z.R. 22 (C.A.)

COURT OF APPEALBLAGDEN, C.J., EVANS AND MAGNUS, JJ.18TH MARCH, 1969

Flynote and Headnote

[1] Criminal law - Automatism - Defence comes tender section 10 of Penal Code.

Section 10 of the Penal Code includes automatism as a possible defence.

[2] Criminal law - Automatism - Burden of proof on prosecution beyond reasonable doubt.

If a question of the defence of automatism arises, the burden lies on the prosecution to negative the defence beyond reasonable doubt.

[3] Criminal law - Automatism - Section 10 of Penal Code - Not applicable of acts caused or may be caused by disease affecting mind.

If the acts of the accused are or may be attributable to disease affecting the mind, the accused cannot proceed under an automatism theory (pursuant to section 10 of the Penal Code) but must instead prove, by a balance of probabilities, that he meets the test of the insanity defence (section 13 of the Penal Code).

[4] Criminal law - Automatism - Raising the defence - Proper foundation Evidence necessary.

Before the defence of automatism arises in a case (with the resulting burden of proof on the prosecution), the defence must lay a proper foundation for it; normally, medical evidence must be produced, and the ipse dixit of the defendant does not suffice.

[5] Criminal law - Causation of death - "Accompanied" interpreted in section 184 (e) of Penal Code - Close nexus in time, transaction, and possibly place.

"Accompanied", as used in section 184 (e) of the Penal Code, connotes a close connection in time, possibly also in place, and certainly in transaction.

Cases cited:

(1) Bratty v Attorney-General for N Ireland, [1963] AC 386; [1961] (3) All ER 523; (1961) 46 Cr. App. R 1.(2) R v M'Naghten, 1843 10 CI & Fin 200.(3) Cooper v McKenna 1960 Queensland LR 419.(4) Cook v Atchison (1968) 112 SJ 235; (1968) Crim. L Rev. 266.

Statute construed:

(1) Penal Code (1965 Cap.6), ss.10, 13, 184 (e).

For the appellants: Cave.For the People: Chigaga, State Advocate.

Judgment

By The Court: The appellants in this case, Aleck Kazembe and Peter Zebron, were charged before the High Court with the murder of Chanda Chipaku Lapupa (hereinafter referred to as the "deceased") on or about the 25th day of July, 1968, at Chingola. They were duly convicted and sentenced to death and appealed against this decision. We allowed their appeals and announced that we would give our reasons for so doing later. These now follow.

The facts of the case were that on the 24th of July at a village near Chingola there was a funeral ceremony. The two appellants were occupied with the task of carrying the coffin which contained the body of a child of one Musalu. According to the evidence of two witnesses, Janet Yabe and her husband Donald Kateka, whilst the two appellants were carrying the coffin on their shoulders they struck Janet Yabe with it with sufficient force to knock her down twice. Thereafter they proceeded to the house of the deceased, who was Janet Yabe's mother, where, according to the evidence of four eye witnesses, they struck the deceased with it and then, as she lay on the ground, proceeded to trample upon her body. Shortly after that Musalu demanded K4 from the deceased's husband, Mwenya Chilenga, as an admission that the deceased had killed the child. The money was paid, and then the party moved off to the burial ground. There was evidence from some of the witnesses that they were compelled to accompany the coffin to the burial ground and they left the deceased lying on the ground outside her house.

When Janet Yabe returned, she found the deceased still lying on the ground outside her house and moved her inside. She was in a very weak condition. Some hours later that night the deceased's house was set on fire by one Samson, and as a result she suffered some burn injuries. She died not long afterwards.

A post-mortem examination was performed on her body by Dr Kahre at Kitwe Central Hospital. He gave evidence that the deceased was about 60 years of age, that she was suffering from first degree burns on her forehead, chest and upper extremities, totalling about 15 per cent, that there were no other external injuries, and that there were internal injuries to the spleen and pericardium and a fracture of the skull.

Dr Kahre said: "In my opinion the cause of death was, No.1, shock following injuries to spleen and pericardium with haemorrhage and, No.2, shock following burns. All internal injuries were consistent with blows being delivered on the body with considerable force. ... If the burns were not there, then the patient could have survived for some days. The internal injuries were not themselves fatal. The

picture I saw was that death was due to both causes. The complement of the injuries brought about the death of the deceased. Because of the addition of the burns the deceased lost her life."

This evidence, which I have quoted exactly as recorded, is not entirely clear, but the burden of it appears to be that the injuries inflicted by the accused would not necessarily by themselves have proved fatal. Similarly, in regard to the shock which the doctor found to be the prime cause of death, it would appear that the shock resulting from the internal injuries would not necessarily have proved fatal by itself.

The appellants made unsworn statements in their defence and called no witnesses. Their defence was that what they did was done under the influence of the coffin and that they had no control over their actions. They maintained that it was the coffin which hit the deceased and knocked her to the ground, and they denied that they had trampled on the deceased. The first appellant said that they actually jumped over her body, and the onlookers only thought that they were stepping on her. The second appellant also said that they jumped over the deceased.

The learned trial judge rejected this defence and found that the appellants had deliberately stamped on the deceased's body, causing her serious internal injuries. He said in his judgment:

"I find that for the accused to trample on the deceased - a woman of some 60 years of age - in such a manner as to inflict upon her the injuries I have found they did in fact inflict with, in the view of Dr Khare, considerable force, they must at least have intended to cause her grievous harm . . . I am therefore satisfied that by assaulting the deceased and inflicting upon her the injuries I have described the accused caused the death of the deceased for whilst those injuries were not the only cause of death they were a substantial cause of death." For the appellant, Mr Cave has argued that the final sentence of this passage is a misdirection, and I will refer to his argument in more detail presently.

Mr Cave advanced two main grounds of appeal. By the first, he submitted that the learned trial judge had failed to consider properly or at all the defence of automatism or the provisions of section 10 of the Penal Code. Secondly, he argued that there was not sufficient evidence to show that the appellants had actually caused the death of the deceased.

Section 10 of the Penal Code deals with intention and motive. So far as it is relevant to the issues of the present appeal it reads as follows:

"A person is not criminally responsible for an act or omission which occurs independently of the exercise of his will . . ."

[1] Mr Cave's case was that the appellants here were acting under the influence of automatism and that their acts occurred independently of the exercise of their wills. "Automatism" is defined in the Concinse Oxford Dictionary as 'Involuntary actions . . . actions performed unconsciously or subconsciously'; and we agree that section 10 of the Penal Code does

let in automatism as a possible defence. [2] There would be no burden on an accused person to establish that he was acting under the influence of automatism. The burden would be on the prosecution to negative it and to prove beyond reasonable doubt that the accused was acting in the exercise of his will and not under the influence of automatism. [3] But there is this important qualification. If the automatism is due to any disease affecting the mind of the accused person different considerations apply. By section 12 of the Penal Code "Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved"; and by section 13:

"A person is not criminally responsible for an act . . . if at the time of doing the act . . . he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act . . ."

It will be apparent from the provisions of these two sections that where the acts of an accused person are or may be attributable to the influence of a disease affecting his mind, then if he wishes to pray that circumstance in aid of his defence, he must discharge the burden of proving, on a balance of probabilities, that he was, at the material time, through a disease affecting his mind incapable of understanding what he was doing or that he ought not to do it. The leading case on the subject of automatism is Bratty v The Attorney-General for Northern Ireland, in which it was held that where the automatism was based solely on a defect of reason from a disease of the mind then the rules in R v McNaghten [2] applied and there was no room for an alternative defence of automatism by itself.

In the present appeal there was no question of either of the appellants suffering from any disease affecting their minds, so there was no burden for them to discharge.

[4] But before automatism can be considered an issue, it is necessary for the defence to lay a proper foundation for it, by producing some positive evidence of it. The mere ipse dixit of the defendant himself is seldom enough. As Lord Denning said in Bratty's case "the evidence of the man himself will rarely be sufficient unless it is supported by medical evidence pointing to the cause of the mental incapacity. It is not sufficient for a man to say 'I had a blackout'; for 'blackout' as Stable J. said in Cooper v Mckenna p 419 [3] 'is one of the first refuges of a guilty conscience and a popular excuse." See also the recent case of Cook v Atchison [4] in which justices were directed to convict a man who had pleaded automatism whilst driving a' motor car but was able to produce no medical evidence in support, although the justices had concluded that, on balance, there was a probability that the defendant had been over come by a sudden disabling illness.

Applying these principles and considerations to the instant case, we have no hesitation in saying that the appellants here completely failed to lay anything approaching a proper foundation for defence of automatism. There was in consequence nothing for the prosecution to negative. All the evidence went to show as indeed the learned trial judge found, that the appellants by their own volition knocked the deceased down with the coffin and then deliberately trampled upon her prone body.

By his second main argument, Mr. Cave submitted that, on the evidence as recorded, the prosecution had failed to prove that the appellants, by their actions in knocking down the deceased

with the coffin and trampling on her, had in fact caused her death. They had undoubtedly contributed to it. The learned trial judge's finding was that the injuries which they indicted, whilst not the only cause of death, were a substantial cause of death, and on this finding he convicted. But we agree with Mr Cave's submission that in coming to the conclusion he could so convict, the learned trial judge must have misdirected himself. [5] The matter is governed by section 184 of the Penal Code which sets out certain circumstances in which a person is deemed to have caused death. Paragraph (e) is the relevant provision here. It enacts that "a person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death . . . (e). If his act or omission would not have caused death unless it had been accompanied bit an act or omission of the person killed or of other persons." Surprisingly enough, although this provision occurs in other codes besides that of Zambia, there appears to be a dearth of authority on its interpretation. Mr Cave's argument was that this provision had to be interpreted strictly and indeed narrowly and in favour of the accused because a wide interpretation could operate unfairly and, indeed, lead to absurd results. In particular, he submitted that the word "accompanies" must be strictly construed so as to mean that, before a person can be deemed to have caused the death of another, in the circumstances envisaged by paragraph (e), it must be established that there was a positive Nexus between the two acts and the two actors. He cited a number of helpful decisions, but noise was directly in points as including interpretations of this provision.

But we do not think it is necessary to have recourse to decisions. In our view, Mr Cave's submission on the meaning of section 184 (e) accords with both common sense and justice. We would not care to attempt an exhaustive or precise definition of the meaning of the word "accompanies", and we think it likely that the extent of application of this provision will depend very much upon the circumstances of each individual case to which it is relevant. In our view, however, the word "accompanied", as used here, must connote a close connection in time, possibly also in place and certainly in transaction. There can be no "accompaniment" in the sense envisaged by paragraph (e) where there is a substantial difference in time. What amounts to a substantial differ once in time will certainly depend upon the circumstances of each individual case. Similarly, even if the two acts did occur close together in time, there would be no "accompaniment" if they were otherwise totally independent of each other.

In the instant case, it was a matter of some hours between the time when the appellants inflicted the internal injuries on the deceased and the time when her house was set on fire by Samson and she suffered burns. No evidence was adduced as to Samson's motives for his actions in setting fire to the deceased's house, and in the absence of such evidence it is not possible to say beyond reasonable doubt that his actions were in anyway connected with the appellants' assault.

We agree that in this case the prosecution failed to prove that the appellants caused the death of the deceased, and it was for this reason that we allowed this appeal. Clearly, however, the appellants were each guilty of unlawful doing grievious harm with intent to do such harm contrary to section 202 (1) of the Penal Code. It was a serious case The appellants behaved with savage brutality towards this unfortunate woman. In assessing sentence we took into account the fact that the appellants had been under the strain of a sentence of death for over two months. We fixed the

sentence at eight years' imprisonment with hard labour with effect from 30th of July, 1968, the date on which they were taken into custody.

Appeal allowed CHISEMPI CHINKASHILA v THE PEOPLE (1978) Z.R. 217 (S.C.)

SUPREME COURT BARON, D.C.J., CHOMBA AND BRUCE-LYLE, JJ.S . 24TH MAY, AND 30TH JUNE, 1978.(S.C.Z. JUDGMENT NO. 27 OF 1978)

Flynote

Criminal law and procedure - Intoxication - Penal Code, s. 13 (4) - Nature of defence - No evidence that because of drink accused unable to form necessary intent.Criminal law and procedure - Intoxication - Automatism induced by drinking - Nature of defence - Accused unable to remember relevant events - Whether defence available.Criminal law and procedure - Automatism - Difficulty of distinguishing between genuine and fraudulent - Desirability of expert evidence. Criminal law and procedure - Use of force in defence of others - Penal Code, s. 17 - Principles applicable - Accused going to defence of brother.

Headnote

The appellant was charged with murder and convicted of man slaughter. The homicide occurred at a beer party at the home of the appellant. There was evidence that a good deal of beer had been consumed.

During the afternoon there was a quarrel between the deceased and two of the appellant's brothers during which the deceased pushed the younger brother to the ground and apparently attempted to throttle him. The appellant who was at that time asleep in his house came out in response to a shout that his brother was being killed, collected an axe from his mother's house and then tried to separate the fighters. In the course of doing so he struck the deceased a severe blow on the lower leg which was the cause of death.

For the purposes of this report two grounds of appeal were advanced. First, that the trial judge erred in failing to consider the effect of intoxication; second, that the trial judge erred in failing to consider that the fatal blow was struck in the defence of the appellant's brother.

Held: (i) The argument based on intoxication was really one of automatism induced by drinking; there was no suggestion that because of drink the appellant did not foresee the consequences of his actions, or that he did not know that what he did was likely to inflict grievous bodily harm; the appellant said that from the time he went to separate the fighters until after the fatal blow was struck he remembered nothing.

(ii) An act is not to be regarded as an involuntary act simply because the doer does not remember it. Loss of memory afterwards is never a defence in itself, so long as the accused was conscious at the time.

Dictum of Lord Denning in Bratty v The Attorney-General for Northern Ireland (2) adopted.

(iii) It is all too easy for an accused person to say that he remembers nothing, and the law looks for something more than his bald word.

(iv) There are genuine cases of automatism and the like, but without the help of some medical or scientific evidence the layman cannot safely distinguish the genuine from the fraudulent.

Dictum of Devlin, J.,n Hill v Baxter (3) cited with approval

(v) Section 17 of the Penal Code provides that criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English law.

(vi) Quite apart from any special relations between the person attacked and his rescuer, there is a general liberty even as between strangers to prevent a felony. It was the duty of the trial judge to consider the necessity for intervening and the reasonableness or otherwise of the manner of intervention.

Dicta of Edmond Davies, J., in R. v Duffy (5) adopted.

(vii) It was unnecessary to express a view as to whether the conduct of the appellant, and particularly the striking of the blow with the axe, was reasonable in the circumstances;there was abundant evidence on which the trial judge, had he addressed his mind to the question, could well have so held, and the proviso could not therefore be applied.

Cases cited:

(1) R. v Meade [1909] 1 K.B. 895.(2) Bratty v The Attorney-General for Northern Ireland [1961] 3 All E.R. 5 253 (HL).(3) Hill v Baxter [1958] 1 All E.R. 193.(4) Tembo v The People (1972) Z.R. 220.(5) R. v Dufy [1966] 1 All E.R. 62.

Legislation referred to:

Penal Code, ss. 13 (4), 17.

For the appellant: M.S. Kapumpa, Senior legal Aid Counsel.For the respondent: A.G. Kinariwala, State Advocate.

Judgment

BARON, D.C.J.: delivered the judgment of the court.

The appellant was charged with murder and convicted of manslaughter. At the conclusion of the hearing before us we allowed the appeal and indicated that we would give our reasons later; we now do so.

On the 27th July, 1977, there was a beer party at the home of the appellant. There was evidence that the drinking had started at about 0800 hours and continued till about noon, and that after a break during which the appellant had gone to the deceased's home and brought him and a friend back, the drinking had continued. There are, somewhat understandably, certain conflicts as to when various people had been drinking and how much they drank, but as the learned trial judge himself observed it seems that almost all the parties were far from sober. The facts about which there appears to be no significant dispute are that during the afternoon of the 27th July there was a quarrel between the appellant's elder brother and younger brother (the latter being PW1 at the trial); the deceased separated the fighting brothers and pushed the younger brother on to the ground and apparently attempted to throttle him. At this point there is some conflict in the evidence; the appellant in his warned and cautioned statement, which was admitted by the trial judge, said that PW3, the friend who had come to the party with the deceased, had called him to say that his brother was being killed; this was the evidence also of PW1 and PW2, the brother and mother of the appellant. PW3 denied this, but the trial judge has made no specific finding of fact on the issue. The remainder of the events appear to have been found by the trial judge to be these: that the appellant had cosine from his own house where he had been asleep, had fetched an axe frown his mother's house and gone to the scene of the fight, had tried to pull the deceased off his brother, had been slapped by the deceased and had then struck him on the ankle with the axe.

The appellant's evidence was that he had gone to his house to sleep at about noon, that he was suddenly awakened by PW3 shouting that they were killing his brother, and that he went to separate the fight;

he said that he was still feeling drunk and all of a sudden saw PW3 with an axe in his hand, that PW3 said, "you have axed a person", but that "because of beer" he did not know anything.

Mr Kapumpa on behalf of the appellant advanced four grounds of appeal. First, that the learned judge misdirected himself in failing specifically to consider the effect of intoxication; second, that the learned judge misdirected himself in failing to consider specifically that the blow which proved fatal was struck in the defence of the appellant's brother; third, that the learned judge should have re-considered the question of the voluntariness of the warned and cautioned statement after he became aware of its contents; and fourth, that the conflicts between the prosecution witnesses should have been resolved in favour of the appellant.

It is convenient to deal first with the last two grounds, which are very much factual matters. Mr Kapumpa's submission on the third ground was that in making his ruling at the conclusion of the trial within a trial the learned judge relied on the evidence of the police officer that the statement in question was a denial, and he drew the inference from that evidence that the police officer would hardly have used coercion to extract a denial. In the event, Mr Kapumpa submits, the statement was

in many respects incriminating and the learned judge should have re-considered the question of the admissibility of the statement after having read it. We agree with Mr Kapumpa that the learned judge should have re-considered the matter, at the latest, at the stage of judgment, but it is unnecessary, since the appeal must succeed on other grounds, for us to decide whether as a result of that misdirection we must proceed as if the statement were not part of the evidence.

On the fourth ground, we agree also that the learned judge misdirected himself in making an adverse finding on credibility against PW1 and PW2, although not quite for the reason advanced by Mr Kapumpa. In fact, however, the one important conflict was not resolved adversely to the appellant. The significance of the adverse finding on credibility is in relation to their evidence that Witman, PW3, called out to the appellant to come because his brother was being killed; this was the only real conflict, it having been specifically denied by PW3. Yet the learned judge appears in his approach to the matter not to have accepted Witman's evidence on that point, but to have accepted instead the version given by the appellant and his mother and brother; his judgment contains the following:

"Quite clearly the accused after drinking with the deceased and others had gone to his house. When he was called out by Witman and having found the deceased on his brother, it is possible that the deceased had attacked him. He then picked up an axe and retaliated by inflicting a savage blow on the deceased's left ankle."

In the event therefore the learned judge has arrived at finding of fact on the crucial issue which is supportable on the evidence and with which we cannot interfere.

The argument based on intoxication, on the evidence in this case is really one of automatism induced by drinking. There is no suggestion that because of the drink he had consumed the appellant did not foresee the consequences of his actions; he does not suggest that because of the drink he did not know that what he did was likely to inflict grievous bodily harm (see R. v Meade(1)). The appellant says that from the time he went to separate the fighters until he saw PW3 with an axe he remembers nothing. In Bratty v The Attorney-General for Northern Ireland (2) the Court of Criminal Appeal in Northern Ireland defined automatism as connoting the state of person who, though capable of action, "is not conscious of what he is doing... It means unconscious involuntary action, and it is a defence because the mind does not go with what is being done". But as Lord Denning pointed out at pp. 532-3:

". . . an act is not to be regarded as an involuntary act simply because the doer does not remember it.... Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time." The only evidence here is that of the appellant himself that he remembers nothing of the fatal blow; there is no evidence that he was not conscious at the time.

On this issue the appellant faces another hurdle. It is all too easy for an accused person to say that he remembers nothing, and not unnaturally the law looks for something more than his bald word. In Bratty (2) Lord Denning said at p. 535:

"In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for a man to say 'I had a black-out': for 'black -out' as Stable, J, said. . . 'is one of the first refuges of a guilty conscience, and a popular excuse.' The words of Devlin, J, in

Hill v Baxter (3) should be remembered:

'I do not doubt that there are genuine cases of automatism and the like, but I do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent.' " There was nothing in the present case to assist the learned trial judge to distinguish between the genuine and the fraudulent.

This court pointed out in Tembo v The People (4) that a court is not called upon to consider intoxication for the purposes of s. 13 (4) of the Penal Code unless there is evidence that an accused person's capacities may have been affected to the extent that he may not have been able to form the necessary intent; evidence of drinking, even heavy drinking, is not sufficient in itself. The learned judge made a number of references to the amount of drink that had been consumed; but there was no evidence on which he could have found that the appellant's capacity to form the necessary intent may have been affected, nor was there evidence "fit to be left to a jury" of automatism. The learned judge cannot therefore be held to have misdirected himself in failing to consider intoxication for the purposes of s. 13 (4) of the Penal Code or as having induced a state of automatism.

We turn finally to Mr Kapumpa's second ground of appeal. He submits that the blow which proved fatal was struck in the defence of the appellant's brother, that the striking of the blow was reasonable in the circumstances, and that that affords a complete defence to the charge of murder. The use of force in the defence of person or property is dealt with in s. 17 of the Penal Code, which provides that criminal responsibility for the use of such force shall be determined according to the principles of English law. At one time it appears to have been considered that the use of force in the defence of another provided a defence only where the relationship was one such as husband and wife, parent and child or master and servant; even as late as 1965 the trial judge in R. v Duffy (5) directed the jury that it was no defence for the accused to say she was going to the assistance of her sister. On appeal the court of Appeal said this:

"The source of error in this case ... is that everyone, including counsel at the trial and again before us, seems to have overlooked that in reality and in law the case of the appellant was not trammelled by any technical limitations on the application of the plea of self-defence .... Quite apart from any special relations between the person attacked and his rescuer, there is a general liberty even as between strangers to prevent a felony. That is not to say, of course, that a newcomer may lawfully join in a fight just for the sake of fighting. Such conduct is wholly different in law from that of a person who in circumstances of necessity intervenes with the sole object of restoring the peace by rescuing a person being attacked."

We respectfully adopt that dictum as a correct statement of the law.

Although the learned trial judge specifically referred to the fact that the appellant's statement raised the question of self-defence, he did not consider whether on the evidence the prosecution had negatived the defence. It may be that the learned judge was of the opinion that the defence was only available if the appellant's actions were in his own defence; such a view receives some support from the passage in the judgment already quoted that: "(the appellant), having found the deceased on his brother, it is possible that the deceased had attacked him . . ." Be that as it may, in the light of the law as stated above it was clearly, the learned judge's duty to consider the evidence and consider the necessity for intervening and the "reasonableness or otherwise of the manner of intervention" (R v Duffy (5)). The relevant facts were that the appellant was asleep in his house when he was awakened by a call that his brother was being killed; he ran out and, having collected an axe frolic his mother' house, went to the scene of the fight. There he found the deceased attempting to throttle his younger brother; he tried to pull the deceased off and was struck in the face. He then struck the deceased on the leg with the axe. It is to be observed that the blow was not struck on the head or on some other obviously vital portion of the body, when the prosecution could perhaps argue that a blow with an axe is likely to be fatal and therefore went far beyond anything that could be said to be reasonable in the circumstances; here the blow was struck on the lower part of the leg, and Mr Kapumpa submits that this indicates that all the appellant was trying to do was to get the deceased away from his brother.

It is unnecessary for us to express a view as to whether the conduct of the appellant, and particularly the striking of the blow with the axe, was reasonable or otherwise in the circumstances, it is clear that there was abundant evidence on which the learned judge, had he addressed his mind to the question, could well have so held, and the proviso could not therefore be applied. For these reasons the appeal was allowe

Appeal allowed TEMBO v THE PEOPLE (1972) Z.R. 220 (C.A.)

COURT OF APPEAL BARON, J.P., GARDNER, AND HUGHES, JJ.A.17TH OCTOBER, 1972(APPEAL NO.167 OF 1971)

Flynote

Criminal Law - Murder - Intoxication - Relevance to intention.Criminal Law - Murder - Provocation - Whether argument and fight can amount to provocation.Criminal law - Evidence - Accused person lying in material respect -Weight of remainder of evidence.

Headnote

The appellant and the deceased fought during an argument in a bar, and the appellant stabbed the deceased with a knife. He was convicted of murder.

Held: (i) A court is not called upon to consider intoxication for the purposes of s. 13 (4) of the Penal Code unless there is evidence of intoxication fit to be left to a jury.

(ii) Evidence of drinking, even heavy drinking, is not sufficient in itself, nor is evidence that an accused person was under the influence of drink in the sense that his co-ordination or reflexes were affected. To constitute 'evidence fit to be left to a jury' for the purposes of s. 13 (4) there must be evidence that an accused person's capacities may have been affected to the extent that he may not have been able to form the necessary intent.

(iii) If such evidence is before the court it is then for the prosecution to negative the possibility that the accused may not have had the necessary intent.

(iv) An argument followed by a fight can amount to provocation sufficient to reduce from murder to manslaughter a fatal blow struck with a lethal weapon in the heat of such fight.

(v) When a witness, and particularly an accused person, is proved to have lied in material respects, unless the untruthful portions of his evidence go to the root of the whole story to the extent that the remainder cannot stand alone, such remainder is entitled to due consideration. The weight of the remainder is affected by the fact that the witness has been shown to be capable of untruthfulness, but the remainder must still be considered to see whether it might reasonably be true; it cannot be rejected out of hand.

Cases cited:

(1) Broadhurst v R. (1964) 1 All E.R. 111. (2) Sikunyema v R. (1963-1964) Z.N.R.L.R. 60.(3) R. v Eagle (1862) 2. F and F. 827.

Legislation referred to:

Penal Code, Cap. 146, ss. 13 (4), 205 (2).

For the appellant: D.M. Lewanika, of Shamwana and Co.For the respondent: S.C. Heron, Senior State Advocate.

Judgment

BARON, JP.: The appellant was convicted of murder. The prosecution case was that the deceased and a friend, Mr Patrick Ngoma, entered the Magoye tavern at about 7.15 p.m. on the 13th June, 1971, and bought a mug of beer, after which the deceased left Mr Ngoma and went in the direction of the toilet. The accused came up to Mr Ngoma and took the mug of beer from him and went off with it. Mr Ngoma waited for the accused at the door of the tavern and when the latter returned asked him for 10 ngwee to buy another mug of beer; the accused said he did not have any money. The deceased then came back and Mr Ngoma explained to him what had happened. The demand for

10 ngwee was repeated with the same response. Mr Ngoma says that this conversation lasted about fifteen minutes and that at this point he heard the sound of a knife being opened; a blow was struck and the deceased was stabbed.

Mr Ngoma denied that he or the deceased had attacked the accused or assaulted him in any way; he denied that either he or the deceased was drunk, and he was not asked whether the accused was drunk.

The accused elected to make an unsworn statement in which he said that he was in the Magoye tavern that evening and had bought beer and had sat for a long time drinking beer. He said that at one stage he went to the toilet and when he came back he found Mr Ngoma standing at the tavern door. He was asked to go and talk to Mr Ngoma's friend and he did so and he was asked for money. He said that he had no money and the deceased then snatched his hat from his head saying that he would sell it to raise money. A struggle then ensued and the deceased and his friend started beating him with their hands. He continued:

'' When they were beating me up, I retaliated. Later a compound - police who was in the tavern and when those people saw him, they ran away leaving me unconscious. I bled from the nose and mouth.''

He said that he could not have stabbed the deceased since the police had found him lying unconscious, but this was patently in conflict with the evidence of Mr Ngoma and that of the police officer who said that the appellant, when the police officer had approached, had run away and was i, not in fact apprehended until the early hours of the 15th, namely about thirty-two or thirty-three hours later. When he was arrested the accused said (and no objection was made to this statement being put in):

'' I admit that I stabbed him with a knife because I was alone and they were two.''

The arresting officer searched the accused and found a knife on him which was stained with a substance which was never analysed and which the learned trial judge found could have been dried blood or could equally have been rust. This point is not, however, material since there was overwhelming evidence that the deceased had been stabbed by the accused and the learned trial judge was more than justified in so finding.

It was argued that the learned trial judge erred in holding that there was no evidence of drunkenness on the part of the appellant, or alternatively that the learned trial judge failed to attach the proper weight to the evidence before him on the question of drunkenness. The learned trial judge said:

'' On the evidence before me I find that there is no defence to warrant the present charge being reduced to one of manslaughter.I say this because I find that no question of provocation or drunkenness, or even insanity, arises.''

It is to be noted, therefore, that the learned trial judge did not say there was no evidence of drunkenness; he said that no question of drunkenness arose.

Section 13 (4) of the Penal Code reads:

'' Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.''

Virtually an identical section in the Criminal Code of Malta was considered by the Privy Council in Broadhurst v R [1] where Lord Devlin said at pages 122 and 123:

'' One way of approaching the problem is to say that it is always for the Crown to prove that the accused actually had the intent necessary to constitute the crime: and that that proof may emerge from evidence or statements made by the accused about his own state of mind or may be made by way of inference from the totality of the circumstances to be taken into account, and on this view all that s.13 (1) is doing is to snake it plain that intoxication is not to be excluded.... This is not a case in which there is direct evidence of the accused's state of mind and the effect of drink on it ... what he intended to do is a matter for inference. In a case in which the intent of an accused is to be ascertained solely by inference, nothing short of incapacity need be considered ... it is only if there is material to suggest that by reason of intoxication he could not have formed a guilty intent that the inference which would otherwise naturally be drawn from the circumstances can be questioned.'

And then later at page 123:

'' ... if there is material suggesting intoxication, the jury should be directed to take it into account to determine whether it is weighty enough to leave them with a reasonable doubt about the accused's guilty intent ...''

In this passage Lord Devlin used the expression 'material suggesting intoxication', but it is clear that he was using a shortened form of the expression he had used earlier, namely 'material, to suggest that by reason of intoxication he could not have formed a guilty intent'.

The next question is: what evidence is sufficient to raise this suggestion? Lord Devlin dealt with this subject in some detail in Broadhurst v R [1] at page 123:

'' It is not enough to show that before the event the accused had been drinking very heavily (as the learned Chief Justice told the Jury, the effect of alcohol varies greatly with different people) and that when examined after the event he was pronounced to have been under the influence of alcohol. There is nothing in the evidence of the doctor who examined him or of those witnesses who observed him before or after the event to suggest that at the time of the event his physical and mental faculties were affected at all, let alone to the extent of affecting his capacity to form an intent to hurt. There was no evidence of defect in speech or movement except some evidence of incoherence after the event which could equally well, if not better, be attributed to the emotional

shield and hysteria from which he then was plainly suffering. It was suggested that his amnesia would not have occurred if he had not drunk as much as he did, but there was no medical evidence on this topic and it was not suggested that the amnesia itself was any evidence of his state of mind at the time of the event. In their Lordships' opinion the jury could properly have been directed not to consider intoxication at all in relation to the of [Fence under s. 234.'

It is thus clear that evidence of drinking, even heavy drinking, is not sufficient in itself, nor is evidence that an accused person was under the influence of drink in the sense that his co-ordination or reflexes were affected. We are not here considering intoxication affecting a person's ability to have proper control of a motor vehicle, but intoxication affecting his ability to form a particular intent, although evidence of the former may on the facts be relevant in considering the latter. The same facts may thus be evidence fit to be left to a jury if the matter in issue were intoxication affecting a person's ability to have control of a motor vehicle, and yet be insufficient to be left to a jury if the matter in issue is intoxication for the purposes of section 13 (4) of the Penal Code. To constitute 'evidence fit to be left to a jury' for the purposes of section 13 (4) there must be evidence that the accused person's capacities may have been affected to the extent that he may hot have bee able to form the necessary intent, only if the evidence goes as far as this does the question whether the accused did in fact have the intent fall to be considered, and it is then for the prosecution to negative the possibility that he may not have had such intent.

Mr Lewanika argues that there was evidence of drinking in the present case, and he cites Sikunyema v R [2] in support of his submission that the learned trial judge should have considered whether, in view of that evidence, the appellant was proved to have had the necessary intent.

Mr Lewanika's difficulty, however, is that the facts of that case were very different from those now before us. In Sikunyema [2] Conroy, CJ, after citing Broadhurst [1] and adopting the propositions of law we have set out, proceeded to consider the facts and said at page 69:

'' There was, therefore, a good deal of conflict as to whether the appellant was intoxicated or not. I incline to attach a considerable weight to two factors. The first is the evidence given by the village headman that (the appellant) was notably getting drunk ... There is also the real evidence of two witnesses that the cause of the fight was the accusation made to the appellant by (the deceased) that the appellant was drunk. That is direct evidence of what happened, it is not opinion evidence expressed later by persons as to whether the appellant was intoxicated or not.''

In the present case there is certainly evidence that the appellant had been drinking, and perhaps for a long time; but there is no evidence whatever that his capacities may have been affected by the drink, nor did he himself so suggest in his unsworn evidence. It is significant to note also that while counsel for the defence clearly argued the question of killing by fighting, there was no suggestion in the record of either cross-examination or argument directed to the question of drunkenness on the part of the appellant. It is argued that the appellant's behaviour in taking the beer bought by the deceased was abnormal and was at least evidence of drunkenness. Belligerence is very far from being material to suggest that a person may not have been able to form a guilty intent, particularly since there was no evidence of the appellant's normal behaviour by comparison with which his belligerence on the evening in question could be described as abnormal.

The evidence in this case falls very far short of the tests expounded by Lord Devlin in Broadhurst [1]. There was no evidence fit to be left to a jury that the appellant's capacities had been affected to the extent that he may not have been able to form the necessary intent; in our judgment the learned trial judge was therefore correct in holding that the question of drunkenness did not arise. But even assuming in favour of the appellant that the learned trial judge was saying that there was no evidence of any impairment of the appellant's capacities, we are satisfied that this is the only view that could properly be taken of the evidence.

Turning to the question of provocation, it is to be noted that in the passage quoted above the learned trial judge said that 'no question of provocation or drunkenness ... arises'. Applying, as one must, similar tests to those we have stated above in connection with intoxication, it can only be said that no question of provocation arises if there is no material suggesting provocation, i.e., no evidence fit to be left to a jury that the appellant may have been provoked within the meaning of sections 205 and 206 of the Penal Code.

The evidence on the narrow question of provocation is for all practical purposes that of Mr Ngoma and the appellant. To some extent these two witnesses related a similar background leading up to the fatal stabbing; the principal areas of divergence are, first, that the appellant denies that he took a mug from the deceased, and second, that Mr Ngoma denies that there was an argument or a fight between himself and the deceased on the one hand and the appellant on the other. An examination of the record however reveals certain significant pieces of evidence by Mr Ngoma which suggest that there was indeed a quarrel prior to the stabbing, and which lend support to the evidence of the appellant that the quarrel developed into a fight. For instance, Mr Ngoma in his evidence-in-chief recounted how the deceased had asked the appellant to give them 10 ngwee so that they could buy another beer; his evidence then continues:

'' Then accused person said to me 'are you two?' I told him that we were two. Then accused person became annoyed and said 'I can beat the two of you and I cannot give you the money that you spent on the beer'.'' The witness then said that he heard the sound of a knife being opened, and in cross-examination admitted that he did not see the knife. It is difficult to accept that in the complete absence of any kind of struggle the witness would not have seen the appellant take out his knife, and stab the deceased. The words spoken as recounted by the witness lend support to the evidence of the appellant that the deceased and his friend threatened to take the appellant's cap and proceeded to attempt to make good that threat. This is consistent also with the statement made by the appellant to P.W.4, a police officer, and which was introduced in evidence by the prosecution, in which he said: '' I admit that I stabbed him with a knife because I was alone and they were two.''

This is the evidence on the credit side from the appellant's point of view. On the debit side there is the fact that he was manifestly lying when he said that he had been left unconscious, bleeding from the nose and mouth, and that he could not therefore have stabbed the deceased. This, as the learned trial judge pointed out, was in direct conflict with the evidence adduced by the prosecution

that the appellant ran away when P.W.2, Constable Katale, appeared on the scene; further on the debit side is the fact that the evidence given by the appellant was unsworn, so that it could not be tested by cross-examination.

The learned trial judge regarded the issue as simply one of credibility, and he appears - at the very least it must be said that the wording of the judgment could be so construed - to have rejected the evidence of the appellant because of the falsehoods it disclosed. When considering the evidence of a witness, and particularly an accused person, whoops proved to have lied in material respects it is essential to bear in mind that, unless the untruthful portions of the evidence go to the root of the whole story to such an extent that the remainder cannot stand alone, such remainder is entitled to due consideration. The weight of the remainder is of course affected by the fact that the witness has been shown to be capable of untruthfulness, but the remainder must still be considered to see whether it might reasonably be true; it cannot be rejected out of hand.

The learned judge did not evaluate the evidence from the point of view of whether there was a reasonable possibility that the evidence of the appellant as to the argument and fight might be substantially true. He made no reference to the inherent unlikelihood of Mr Ngoma's version, nor to the fact that his witness, who was accusing the appellant of having killed his friend, had a bias or interest adverse to the accused. Nor did he address himself to the fact that on the vital issue of provocation the prosecution case rested entirely on the evidence of a single witness. It is of course competent to convict on the evidence of a single witness so long as it is clear and satisfactory in every material respect, but we do not think it possible to say that the evidence of Mr Ngoma in the present case meets this test. There were weighty reasons for considering whether, on a critical examination of the whole evidence, there was not a reasonable possibility that that of the appellant might be substantially true.The final question is whether an argument and fight as described by the appellant could amount to provocation. Subject to the qualification to be made presently we are satisfied that it does; thus in R v Eagle [3] Erie, CJ, in his charge to the jury said that the offence was reduced to manslaughter if the circumstances:

'' ... show that the blow was given in the heat of passion,arising on a sudden provocation, and before the passion had time to cool ... In the present case the quarrel was sudden; the knife was a clasp knife such as might be naturally carried about the person and was not fetched for the purpose . . . If (the blows struck by the deceased) excited a passion, in the heat of which the prisoner gave a fatal blow, then you may find him guilty of manslaughter, a crime which greatly varies in intensity, and may come very nearly up to murder.'' Section 205 (2) of the Penal Code requires that for a killing to be reduced from murder to manslaughter on the grounds of provocation the act which causes death should bear a reasonable relationship to the provocation. It is unnecessary for us to decide whether on the facts of the present case the act in question bore such a reasonable relationship, since the learned trial judge, because of the view he took of the evidence, did not have to consider the point, and we are quite unable to say had he considered it he must inevitably have held that the act was out of proportion to the provocation. The courts in the Common Law countries have always been very slow to apply overfine tests to actions taken and weapons used in the heat of the moment. Clearly the position would have been quite different had the appellant gone away to fetch the knife; but these are not the facts before us, and on the facts we can well envisage that a trial court might not have regarded

the retaliation as excessive to the extent of bringing the matter within the provisions of section 205 (2). We are bound therefore to hold that the learned trial judge erred in saying that the question of provocation did not arise. There was evidence fit to be left to a jury that the appellant may have been provoked, and the learned judge should have examined the evidence and decided whether the prosecution had negatived the suggestion. Since we are unable to say, on the evidence, that had the learned trial judge approached the matter in this way he must inevitably have come to the same conclusion, this appeal must be allowed. The conviction and sentence will be set aside, and a conviction for manslaughter substituted.Accused convicted of manslaughter

ERNEST MWABA AND CHABAYA NDALA AND SIMUSHI MANYIMA AND WAMUNYIMA WALUSIKU AND ERUSTUS KAKUMBI BANDA v THE PEOPLE (1987) Z.R. 19 (S.C.)SUPREME COURTNGULUBE, D.C.J., GARDNER, J.S., AND SAKALA, JJ.S. 7TH OCTOBER AND 19TH NOVEMBER,1987 (S.C.Z. JUDGMENT NO. 23 OF 1987)Criminal Law and Procedure - Common criminal purpose - Act of one not fatal unless accompanied by act of others - Whether the one liable.Criminal law and Procedure - Common criminal purpose - Persons other than accused also involved - Liability of accused.HeadnoteThe accused were convicted of manslaughter. The prosecution evidence was that they arrested the deceased and interrogated him in a nearby school. Late at night he was taken into the bush and whilst handcuffed was beaten with planks and sticks. His feet were burnt. There was also evidence that the deceased was severely assaulted by other villagers.The accused argued that because persons other than the accused assaulted the deceased the death could not be attributed specifically to any of the accused; that because others who participated in an assault were not prosecuted there was no common intention by the accused to cause the death and only the offence of assault was committed.Held:(i) 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 be liable. (ii) Where the evidence shows that each person actively participated in an assault then they were all crimines participes. The fact that other persons may have also assaulted the deceased at one stage can make no difference where the nature of the assaults was such that their cumulative affect overcame the deceased.

Case referred to:(1) Mohan & Another v Regina [1967] 2 All E.R. 58 Legislation referred to: Penal Code, Cap.146, ss. 207 (d), (e) 19For the appellants: D.M.Luywa, Messrs Mwisiya & Company.For the respondent: K.C.Chanda, Senior State Advocate.

JudgmentNGULUBE, D.C.J.: delivered the judgment of the court.The first appellant received four years and the rest received three years imprisonment with hard labour each for manslaughter. The particulars alleged that between 14th and 15th May, 1985, at Mongu, jointly and whilst acting together they unlawfully caused the death of Mubita Munalula.

The evidence established that the deceased was a suspect in a theft case in respect of goods stolen from the 4th appellant's house. The deceased was collected from his village and taken to a nearby school where he was interrogated. He was taken to the bush at night and the next morning for him to reveal the whereabouts of the property, which was not found, and finally he was tied to a tree when he expired. All the while, the deceased was in handcuffs and subsequently and in addition he was tied up with ropes as well. The medical evidence was that the deceased died as a result of shock and exhaustion from multiple contusions and sundry other small injuries, including burns on his feet, which he sustained when he was assaulted. The prosecution case, which was accepted by the learned trial commissioner, was that it was the appellants who continuously assaulted the deceased, sometimes singly and sometimes jointly, at the school, in the bush and his village when he was taken there in the course of the attempt to recover the properly the deceased was suspected to have stolen and which the deceased had allegedly admitted to have stolen when he was interrogated during the night at the school. The appellants' case was that they did not participate in any of the assaults on the deceased; that from the time of his apprehension, a mob of villagers gathered as the deceased was marched through the villages to the school and it was the mob which severely assaulted the deceased; that the deceased was not beaten by them with any sticks as alleged by the prosecution witnesses but father it was PWs 1 and 5 who later assaulted the deceased with planks and sticks when the deceased annoyed them by claiming that some of the stolen goods were with the witnesses; and that the burns on the deceased's feet were not as a result of their having deliberately burnt him to encourage him to walk on when he became exhausted but were as a result of the deceased accidentally stumbling into a fire. The learned trial commissioner resolved the conflict on an issue of credibility. She accepted the evidence of PWs 1, 2, 3 and 4 who witnessed the assaults at one stage or "other and rejected the claim that other persons beat up the deceased.

One ground of appeal alleged error on the part of the learned trial commissioner in failing to take into account the possibility that other persons beat-up the deceased. We note that the learned trial commissioner had in fact specifically considered this issue, discounted it, and accepted the eye witness evidence against the appellants. Counsel for the appellants argues that, if in fact the mob had already inflicted injury from which the deceased would have died in any event, the appellants were not liable. In our considered opinion, and in view of the law to which we shall be referring in a moment, once there was credible evidence that the appellants participated in a concerted enterprise of interrogating the deceased in an attempt to recover stolen property, and once the evidence showed that each appellant actively participated in the assault, then they were all crimines participes. The fact that other persons may20 have also assaulted the deceased at one stage or another can make no difference where the nature of the assaults was such that - as in this case - it was their cumulative effect which overcame the deceased. The evidence accepted by the trial court was that each appellant assaulted the deceased and at other times aided and abetted the others while trying to extract information concerning the whereabouts of the stolen property. A positive finding, therefore, that other villagers also participated in the assaults would not relieve the

appellants of their own liability. As active participants in the venture, they would all be principal offenders within the meaning of section 21 of the Penal Code.

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 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. On the evidence, and even assuming that a mote had already inflicted serious injuries, each appellant would still be liable for causing the death. Under The section referred to, the appellants would be liable if their assaults hastened the death of the deceased if he was then already suffering from serious injuries inflicted by the mob from which he would have died even had the appellants not assaulted him. Similarly, each appellant is liable even if his own blows would not have been fatal had they not been accompanied by the blows of other persons. Thus, once more or less equal participation in the unlawful assaults on the same victim was established, it was unnecessary to show who struck the fatal blow and each was fully liable for the manslaughter: see for instance Mohan & Another v Regina (1) a case of murder but where this principle was applied.

The principal issue was whether or not the learned trial commissioner was right in accepting the evidence that the appellants had assaulted the deceased. Mr. Luywa's submissions were to the effect that there was misdirection in the findings based on an issue of credibility as between the prosecution case and that set up by the appellants.The argument was that the eye witnesses called by the prosecution were all suspect for the reason that they were either related to the deceased or that they themselves were alleged by the defence to have assaulted the deceased. It was argued that, in evaluating the conflicting stories, the learned trial commissioner did not adequately consider the discrepancies which weakened the prosecution case and the evidence favourable to the appellants Examples of this were said to include the use made of one appellant's21 warn and caution statement only in respect of the deliberate burning of the deceased's feet when the statement contained other facts favourable to that appellant. The short answer to the complaint in that respect is that the learned trial commissioner was there discussing solely the issue of how the deceased got burnt. She very carefully, in our view, contrasted the prosecution account with that of the appellants which was, in any case, manifestly improbable. It is our considered opinion that the learned trial commissioner had correctly identified the central issue in the whole case to be one of credibility between two sets of conflicting accounts. The witnesses who are alleged to be suspect witnesses can be divided into two camps: There were the witnesses from the same village as the deceased and PW.3, the special constable, who had apprehended the deceased and left him under the charge of the first appellant, another special constable. They gave their evidence from such

different positions that, quite clearly, it was inconceivable that they had jointly fabricated a story to falsely implicate the appellants. Over circumstances, some of which were common cause, also provided support for their evidence: These were that the appellants took the deceased from the school at night when it had been agreed to continue the investigations only the following morning; they took the deceased Into the bush after he had allegedly admitted the offence and kept returning him to the bush despite his failure to locate any property; they tied him up with ropes, manhandled him and burnt his feet when he had collapsed. Finally, they left him tied to a tree. All these factors were inconsistent with a course of investigation free from the application of violence, as contended by the appellants.

We cannot reverse the findings of fact based on an issue of credibility unless it is positively demonstrated to us that the learned trial commissioner, who had the advantage of seeing and hearing the witnesses at first hand, clearly fell into error or misdirected herself in some way. The learned trial commissioner had before her the very items of evidence which the appellants urge in their favour; she fully set out and considered the two conflicting stories; she gave detailed reasons why she was accepting the prosecution case and rejecting that of the appellants. For our part, we are unable to say that she had misdirected herself in any way. In truth there are no grounds upon which we can interfere and the appeals against conviction are dismissed.

With regard to the sentences imposed, the learned trial commissioner again gave reasons for sentencing the first appellant to four years imprisonment. The firm appellant clearly played the leading role and as a special constable he should not have adopted a violent method of investigating the alleged theft. We cannot say that for persons who take the law in their own hands and assault suspects in this manner, these sentences were either wrong in principle or in any way extravagant so as to comets us with a sense of shock. The appeals against the sentences are also dismissed.

Appeal dismissed 22