SUBMISSIONS OF NO CASE TO ANSWER ON BEHALF OF THEACCUSED

May it please this Honourable Court?

The accused person herein stand charged with murder contrary to s200 of the Penal CodeChapter 87 of
the Laws of Zambia. The particulars of the offence state that Dorica Temboon the 11thJanuary, 2020, at
Lusaka did murder the deceased, her husband. He was foundlying in a pool of blood meters away from
the accused who was holding a gun and herclothes were covered in blood. An autopsy conducted
showed that the deceased died as aresult of gunshot wounds. He was shot at from the back, 4 times.The
standard test as to whether or not the accused person has a case to answer is laiddown in a plethora of
cases. In the case ofPeople v Winter Makowela and another1979 ZLR p 290the question to be asked is
whether after the prosecution has made outtheir case, there is sufficient evidence on which a
reasonable tribunal may or mightproperly convict.Further to answer this question, the accused person
will be found with no case to answerwhere:

SEBASTIAN OGANDA ARUM V REPUBLIC[2012]eKLR

I do therefore find that there is material contradiction on the part of the prosecution case. The evidence
adduced are totally inconsistent. It is not the duty of the appellant or defence to add value to the
prosecution’s case. Criminal cases as they are, must be proved beyond any shadow of doubt. There is no
sufficient evidence in my considered opinion to convict the appellant. The prosecution evidence
remained inconsistent all through. There seems bad blood exists between the parties in regard to some
land issue.

Musee Joseph Musyoka v Republic [2014] eKLR

I think I have said enough to demonstrate that the production of the post mortem report in this case
was irregular. With this evidence this court is not able to confirm who conducted the post mortem, the
identity of the deceased and the cause of death. Further the appellant was not afforded a chance to
cross examine the doctor who prepared the report thereby infringing on his rights to a fair trial. This
being a criminal case, there is no room left for maneuver. There must be proof beyond reasonable doubt
that death of the victim named in the case occurred. This evidence on death leaves this court without
such proof.

Is the appellant guilty of unlawful omission? As defined above an unlawful omission is an omission
amounting to culpable negligence to discharge a duty tending to the preservation of life or health,
whether such omission is or is not accompanied by an intention to cause death or bodily harm.
Under English law, where a person causes death through extreme carelessness or incompetence, gross
negligence is required. In R. vs. Bateman 19 Cr. App. R. 8 the Court of Criminal Appeal held that gross
negligence manslaughter involved the following elements:

The defendant owed a duty to the deceased to take care;

The defendant breached this duty;

The breach caused the death of the deceased; and

The defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others
as to amount to a crime and deserve punishment.

Parents obviously owed a duty to take care of their young children and this court is alive to this fact. The
issue is whether the appellant breached that duty. In determining that issue, this court must scrutinize
the appellant’s conduct in all the circumstances. Although evidence of PW1 shows that the appellant
had left her for about two weeks, there is no evidence to show bad blood existed between them. She
allowed him to visit and take the baby with him as he greeted and talked to the neighbours. She allowed
him to come in and lay the baby to sleep and also slept next to the baby. There is no evidence to show
that he mistreated PW1 or the baby. It is my considered view that the prosecution has failed to establish
that the appellant was guilty of unlawful act or omission. The prosecution failed to establish that the
appellant breached the duty to take care of baby J.M; that the breach caused the death of the baby and
that the appellant's negligence was gross, that is, it showed such a disregard for the life and safety of the
baby as to amount to a crime and deserve punishment.

Since we are told in evidence that the appellant had to be pushed away from the baby and/or the baby
had to be pulled from under him; and in my view this shows that either he was too sleepy or too drunk
to know that he had slept over the baby, it is for the prosecution to prove that the appellant deliberately
slept on the baby; it is upon the prosecution to prove that the appellant breached the duty of care and
that he was guilty of gross negligence as set out in the R. vs. Batemant case, above. I say this because in
our African setting, mothers, fathers and sometimes other relatives sleep next to young babies all the
time. I would not equate the act of sleeping next to a baby with, for instance, leaving a baby inside a
house unattended with fire on. The latter scenario smacks of gross negligence.

It is not for the court to fill up the gaps left by the prosecution. It is the prosecution that bears the heavy
burden of proving any unlawful act or omission on the part of the appellant. Although the appellant did
not say much in defence, he was within his rights. He could have as well remained silent. This would not
have implied that he is guilty. He termed the incident as accidental and asked for forgiveness.

Manslaughter is defined under section 202 (1) of the Penal Code as the killing of another person by
unlawful act or omission.
Any person who by an unlawful act or omission causes the death of another person is guilty of the
felony termed manslaughter (emphasis added).

An “unlawful omission” is defined under section 202 (2) Penal Code as an omission amounting to
culpable negligence to discharge a duty tending to the preservation of life or health, whether such
omission is or is not accompanied by an intention to cause death or bodily harm (emphasis added).

My understanding of this definition is that the prosecutor who bears the burden of proving a criminal
case against the accused person must, in a crime of manslaughter, prove that the deceased died as a
result of unlawful act or omission and that the appellant is responsible for the unlawful act or omission
causing the death. S. N. MUTUKU

Edward Munyua Kithure v Republic [2021] eKLR

The ingredients of the charge which the prosecution must prove are:-

i) Unlawful act

ii) The unlawful act must be a dangerous one

iii) Death must result from the unlawful act

The prosecution proved that it is the accused who committed the unlawful act of stabbing the deceased
with a knife and the act was dangerous as it resulted in the death of the deceased. I find that the charge
was proved to the required standards, that of beyond any reasonable doubts.

Submissions on behalf of the Accused

In the accused submissions dated 12th November 2018 and filed on the same date, Mr. Nairi counsel for
the accused challenged the prosecution witness testimonies, by stating the following; PW2 lived with
the accused for only a week till the incident happened. He did not know her well nor had any meaningful
contact. Purpose of the visitation was to discuss formalization of the relationship with the accused which
was not discussed during that period. He could not establish a rapport with the child, he had a busy
schedule he could not know if the child had health complications. Learned counsel impugned PW2
testimony that he was not capable of confirming whether the child was dead or alive. He indicated that
the child was sick as regards PW1 was negligent and did not make any effort to see whether he could
conduct first aid or save the child, he only peeped the face and decided to keep quiet.

Learned counsel further submitted that PW3 who was the investigating officer visited the crime scene;
he failed to produce before this Honourable court evidence like crime scene pictures. Did not gather
sufficient evidence to put accused on her defence. Mr. Nairi relying on the evidence by the prosecution
urged this court to find that the case against the accused falls short of the threshold of a prima facie
case. Learned counsel pointed out reasons why this court should not allow the case to proceed further
by calling the accused to answer under section 306(2) of the criminal procedure code, by restating the
following facts: that: 1. The death of the child was not caused by the action or omission of the accused
person. Prosecution has not established an independent explanation on the connection between the
accused and the offence. 2. The accused showed great concern; she first carried the child to pw2
workplace, rushed to the hospital and took herself to the police station upon advice from the hospital.

Learned counsel referred to section 210 of Criminal Procedure Code but correct governing procedures
for the high court trial is under section 306 (1) of the Criminal Procedure Code. Section 210 of the
Criminal Procedure Code applies for a motion of no case to answer for trials in the magistrates’ court

In conclusion the accused counsel submitted that the prosecution witnesses are of no probative value.
He prayed that a prima facie case has not been established and that it is an embarrassment and waste of
judicial time.

The term prima facie is defined by the Black’s Law Dictionary 18th edition as:

” A case sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what
seems to be true on first examination, even though it makes later be proved to be untrue.”

The Oxford Companion of Law at page 907 gives the definition as:

“A case which is sufficient to all an answer while prima facie evidence which is sufficient to establish a
fact in the absence of any evidence to the contrary is not conclusive.”

In Mozley and Whiteley’s Law Dictionary 11th Edition defines prima facie case as:
“A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong
for his opponent to be called on to answer it. A prima facie case then is one which is established by
sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.”

Sanjil Chattai v The State [1985] 39 WLR 925 stated thus:

“A submission that there is no case to answer may properly be made and upheld:

(a) When there has been no evidence adduced by the prosecution to prove an essential element in the
alleged offence.

(b) When the evidence adduced by the prosecution has been so discredited that no reasonable tribunal
could safely convict on it.”

In the persuasive authority decided by Malaysian Court in PP v Datoseri Anwar bin Ibrahim No. 3 of 1999
2CLJ 215 at page 274 – 275 Augustine Paul J made the following observations:

“A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing
party to be called on to answer. The evidence adduced must be such that it can be overthrown only by
rebutting evidence, must be such that, if rebutted, it is sufficient to induce the court to believe in the
existence of the facts stated in the charge or to consider its existence so probable that a prudent man
ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be
postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at
the close of the case for the prosecution before the court can rule that a prima facie case has been
made out in order to call for the defence.”

Republic v Juliana Wambui Thiong’o [2018] eKLR

In the offence of manslaughter, the prosecution is supposed to prove the primary ingredients of the
offence, namely:

I. Death of the deceased and the cause of death

II. That the accused committed the unlawful act which caused the death of the deceased.