NGULUBE, D.C.J.: delivered he judgment of the Court.
Delay in delivering this judgment is very much regretted but resulted from the fact that the draft of the judgment prepared earlier has gone missing, together with the copy of the record on which it was circulated for approval of their lordships. Despite every effort, that draft has not been found and it became necessary to write this replacement.
The appellant was sentenced to death for the murder of his estranged wife. The particulars were that on 2nd December, 1985, at Kalomo, he murdered Lonica Milondo Siamuchangwa. Although the deceased died on 2nd December, 1985, the events giving rise to such death occurred on the night of 8th August, 1985, at the deceaseds village. The prosecution evidence was to the effect that on the night in question PWs 1 and 2 were attracted by shouts for help. When they got out of their own houses in the village, each claimed that the deceaseds grass thatched house was in flames and the appellant was seen there armed with an axe with which he struck the deceased as she attempted to come out. The deceased had with her in the house, two young children and the evidence of PW 2 was that the appellant kept shoving the deceased back into the flames when she tried to escape. There was evidence that when PW1s twelve year old son approached the scene the appellant struck him with an axe, causing injuries and for which offence he was subsequently jailed after pleading guilty. PW 2 also stated that as he was approaching the scene the appellant threw a sand-filled bottle at him before making good his own escape. The deceased and her children suffered burns. In addition, the deceased suffered injuries inflicted with the axe. She was hospitalised in a local rural health centre and then at a mission hospital before finally being transferred to Livingstone hospital where she remained for about three months before expiring. She suffered burns over 40% of her person and the pathologist gave the cause of death as circulatory failure to toxaemia due to extensive burns.
One ground of appeal criticised the allegedly uncritical reliance placed by the learned trial commissioner on the evidence of PWs 1 and 2 since the deceased was their sister. The short answer is that this ground cannot avail because, in view of the appellants own confession statement which was admitted in evidence without any objection, there could not have been any dispute about the basic facts which were that the appellant set the deceaseds house on fire and then attacked her at the door as she attempted to escape. The appellants testimony on oath in which he admitted only to assaulting the deceased and PW1s son with an axe handle, allegedly in self-defence, but not to settling fire to the house, was, in the circumstances, properly discounted.
The major ground of appeal was to the effect that it was wrong to find that the appellant had caused the death of the deceased, having regard to the fact that she died three months later and she had undergone medical treatment the details of which were not led in evidence. The argument was that the learned trial commissioner should not have merely accepted the pathologists report in which he proposed that a detailed autopsy was not required since the cause of death was so obvious to him, namely, circulatory failure due to toxaemia due to extensive burns. Mrs Muyovwes submission was that, according to Blacks medical dictionary, toxaemia was a form of blood-poisoning and this indicated that it resulted from infection due to failure to clean the wounds. She submitted that, in the absence of viva voce medical evidence, it could not be assumed that every person who has 40% burns could have toxaemia and it was, therefore, impossible to say that the deceaseds treatment had been proper. The authority relied upon for all these submissions, both here and at the trial, was our decision in Raymond Mweetwa Banda v The People (1) in which the prosecution failed to prove a casual connection between the brain abscess which caused death and the felonious injury by axing which occurred six months earlier, followed by medical treatment details of which were not placed before the court. He said there that the prosecution had, by their failure to adduce evidence of the treatment, failed to establish the connection as a matter of causation, between the injury and the immediate cause of death. We had, in that case, accepted an argument based on R v Jordan (2) in which the injured person died, not from the injuries which were then healing satisfactorily but directly as a result of wrong medication reintroduced by a doctor who was not aware that his colleagues had discontinued it because of the injured persons intolerance to it.
The learned senior state advocate asked us to uphold the learned trial commissioner and to hold that the case of Banda did not suggest that the absence of evidence of treatment must always be fatal even in a case such as this where there was no suggestion of negligence on the part of doctors.
We have carefully considered the submissions and the arguments based on the Banda case. That case was an instance of the application of S.207 (a) of the Penal Code which reads:
207. A Person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases:
(a) If he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which cause death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill;
It is clear from the section that the person inflicting the felonious injury will not be held to have caused the death if the immediate cause is the improper medical treatment itself. In the instant case, the pathologist had no difficulty in finding that the death traced back in a clear causal chain to the burns suffered as a result of what the appellant feloniously did. Mrs Muyovwes submission, in effect, sought to assert that Banda was authority for a proposition that evidence of treatment must always be adduced in a case such as this. Banda introduced no such general requirement and it was simply an instance of the application of the provision in the section which we have quoted. Since that case was based on R.-v- Jordan, it is necessary to stress that these two cases were decided on their own facts where the improper treatment, and not the original injury, caused death. Those cases were not intended to establish any departure from the basic common law requirements of causation as they have always existed. In dealing with a somewhat similar submission, the Courts-Martial Appeal Court in R.-v-Smith (3) found that R. v Jordan was a very particular case depending on its exact facts. At page 198, they dealt with counsels submissions in the following terms:
In these circumstances counsel for the appellant urges that, not only was a careful summing up required, but a correct direction to the court would have been that they must be satisfied that the death of Private Creed was a natural consequence and the sole consequence of the wound sustained by him and flowed directly from it. If there was, says counsel for the appellant, any other cause whether resulting from negligence or not, if, as he contends here, something happened which impeded the chance of the deceased recovering, then the death did not result from the wound. The court is quite unable to accept that contention. It seems to the court that, if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.
In upholding the common law approach to causation, the Court of Appeal in England commented upon R.v Jordan and R v Smith in R. v Blaue (4) in the following terms, at page 449
There have been two cases in recent years which have some bearing on this topic: R. v Jordan and R. v Smith . In R.v Jordan the Court of Criminal Appeal, after conviction, admitted some medical evidence which went to prove that the cause of death was not the blow relied on by the prosecution but abnormal medical treatment after admission to hospital. This case has been criticised but it was probably rightly decided on its facts. Before the abnormal treatment started the injury had almost healed. We share Lord Parker CJs opinion that R. v Jordan should be regarded as a case decided on its own special facts and not as an authority relaxing the common law approach to causation.
In the case now before us, the post-mortem report left no room for doubt on the question of causation. Mrs. Muyovwes submission rested on an assumption that the medical authorities may have neglected to clean the injuries, thereby allowing toxaemia to set in. In describing the symptoms and the healing process in a patient who has suffered serious burns, the authors of the same Blacks Medical Dictionary which Mrs. Muyowve relied upon, point out, at page 154 of the 29th edition:
All through this stage there is, in extensive burns, a liability to death from ulceration of the bowels or from general blood-poisoning.
There is no basis for the assumption suggested and the chain of causation was clearly not broken in this case where, on the facts accepted, the appellant evidenced a determined intention to cause death or at least very serious injury by setting fire to the deceaseds house and then attacking with an axe and trying to prevent the escape of the deceased and her children from the burning inferno. As the cases of Banda and R.-v- Jordan are distinguishable, the ground of appeal in this behalf cannot be accepted since, clearly, the death resulted from a chain of causation traceable right back to the fire.
For the foregoing reasons, this appeal is dismissed.
Appeal dismissed. |
