IN THE SUBORDINATE COURT OF THE FIRST CLASS HOLDEN AT KITWE (Criminal Jurisdiction) THE PEOPLE VS DUCE HASTINGS CHILOMO ACCUSED’S FINAL SUBMISSIONS MAY IT PLEASE YOU, YOUR HONOUR, these are the submissions of the Accused. 1. CHARGE Under the charge, DUCE HASTINGS CHILOMO is charged with the offence of assault occasioning actual bodily harm contrary to section 248 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence are that: DUCE HASTINGS CHILOMO on 29th April 2013, at about 08:30 hours, at ERB Kitwe Office, at Kitwe, in the Kitwe District, the Copperbelt Province of Zambia, did commit an assault on GRACE LIKANDO thereby occasioning actual bodily harm on her. The Accused has denied the aforesaid charge. 2. INGREDIENTS OF CHARGE In the first place, it is pertinent to highlight the provisions of section 248 of the Penal Code, Chapter 87 of the Laws of Zambia, which state as follows: “248 Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.” It is submitted that since this is not a strict liability offence, the Prosecution must prove the actus reus and the mens rea of assault or battery beyond reasonable doubt. It will be noted that the actus reus of section 248 requires the commission of an assault or battery. Under this section, the actus reus and mens rea must be established by the Prosecution. Thus, to secure a conviction on the basis of the said charge, it is not enough to show the actus reus of assault or battery. The Prosecution must establish the assault or battery causing actual bodily harm. On the other hand, the Prosecution must prove the mens rea of the offence with which the Accused is charged, that is, the Accused must have intended to cause the assault or was reckless thereto. It is necessary for the Prosecution to prove that the bodily harm was caused in fact and in law by the assault. This proposition was confirmed by the House of Lords in the English case of Regina v Parmenter . 3. SUMMARY OF EVIDENCE ADDUCED BY THE STATE The State called one witness, namely, Ms. Grace Likando (hereinafter referred to as “the Prosecutrix”). The crux of the evidence adduced by the State’s sole witness is that the Accused perpetrated an assault on the Prosecutrix when the latter had approached the Accused at the Accused’s office on the material date. In her evidence under oath, the Prosecutrix alleged that while she and the Accused were discussing arrangements as their children’s maintenance, the discussion descended into an argument whereupon the Accused hit the Prosecutrix with a stapler, strangled her by her neck and attempted to yank out her hair. In her further testimony before this Honourable Court, the Prosecutrix averred that following the alleged assault on her person by the Accused, the Prosecutrix was saved from further assaults by spiriting her out of the Annex Office and locking her away in one of the adjoining offices. 4. CASE FOR THE DEFENCE Four witnesses testified on behalf of the Accused. Their evidence is summarized below. 4.1 DW1: Obby Kafunda DW1 testified that he was in the annex office with the Accused when the Prosecutrix entered the office. Upon entry into the annex office, the Prosecutrix walked up to the Accused’s desk. The Accused then offered the Prosecutrix a seat and the two then started a conversation although DW1 could not hear what the two were discussing. However, no sooner had the Accused and the Prosecutrix started their conversation than DW1 heard the Prosecutrix raise her voice. Although the witness could not understand what the Prosecutrix was saying, DW1 heard the Prosecutrix tell the Accused that the latter was “a fool” and “stupid”. Upon hearing such strong words uttered by the Prosecutrix, DW1, in his capacity as the Accused’s supervisor, thereupon urged the Accused to request his wife to take leave to which the Prosecutrix refused to oblige. At that stage, DW1 stood by the Accused’s desk and asked the Accused to take leave as the Accused’s wife had clearly expressed her unwillingness to leave. At DW1’s suggested, the Accused stood up and motioned to leave the office when the Prosecutrix objected to the Accused’s leaving the office and insisting that the Accused needed to give her the money for the children’s school fees. Despite the Prosecutrix’s objection, the Accused left the office and proceeded to the next office. DW1 remained standing by the Accused’s desk and tried to persuade the Prosecutrix to leave the premises but the Prosecutrix was undeterred. All the while, the Prosecutrix was shouting on top of her voice and hurling insults at the Accused. Asked whether he had witnessed any assault by the Accused on the Prosecutrix, DW1 stated that he witnessed no such assault. This evidence was not contradicted or shaken by cross-examination. 4.2 DW2: Christopher Chisi At the material time, DW2 was a workmate of the Accused and was employed by the ERB as an Intern-Electrical Engineer. When the Prosecutrix entered the annex office, DW2 was sitting at his desk which was next to the office door. When she entered the office, the Prosecutrix greeted DW2 before proceeding to the Accused’s desk. While in conversation with the Accused at the Accused’s desk, DW2 heard the Prosecutrix raise her voice and used what was obviously abusive language against the Accused. She used such expressions as “you are a fool”, “stupid” and also said Bemba Language that “uli muntu fye nganawiminina” (literally translated as “you are only a human being when awake” that is to say ‘you are senseless’). DW2 further testified that, at DW1’s instigation, the Accused left the office while DW1 persuaded the Prosecutrix to leave the office. In view of the Prosecutrix’s conduct, DW2, of his own initiative, went and called DW3, who was DW2’s supervisor. Asked whether he had witnessed any assault by the Accused on the Prosecutrix, DW2 stated that he witnessed no such assault. This evidence was not contradicted or shaken by cross-examination. 4.3 DW3: Felix Chama DW3 is employed by the Energy Regulation Board (ERB) as Electrical Engineer. Upon being summoned by DW2, and upon entry into the Annex Office, DW3 asked what was going on. In answer to DW3’s query, the Prosecutrix said “don’t be stupid”, “you are a fool”. DW3 answered and told the Prosecutrix that if she had a problem with the Accused, the Prosecutrix was at liberty to involve the Police so that the Accused could be properly summoned by the Victim Support Unit/Police. DW3 asked the Prosecutrix to take leave but the latter refused to oblige saying that if she left, then the Accused would run away from his responsibilities. DW3 continued persuading the Prosecutrix to leave but the Prosecutrix refused to do so. In view of the Prosecutrix’s unruly conduct, attitude and her abusive language towards everyone in the ERB annex office, DW3 instructed DW4, a G4 Security Guard, to effect the removal of the Prosecutrix from ERB premises. Asked whether he had witnessed any assault by the Accused on the Prosecutrix, DW3 stated that he witnessed no such assault. This evidence was not contradicted or shaken by cross-examination. 4.4 DW4: Joseph Muma DW4 is a security officer employed by G4 Security Limited, a security firm which is retained by the ERB to provide security guardship services at the ERB Kitwe Office. At the material time, DW4 was working at the ERB Kitwe Office gate, when he loud noises from the Annex Office. Upon hearing such noises, the DW4 proceeded to the Annex Office where he found, among others, the Prosecutrix and DW3. He found the Prosecutrix exhibiting unruly conduct while being persuaded by ERB personnel to leave ERB premises. DW4 joined in persuading the Prosecutrix to leave the ERB Office but the Prosecutrix refused to leave. Later on, DW4 was instructed by DW3 and DW1 to remove the Prosecutrix from the ERB premises. DW4 thereupon called his head office to send the G4 Rapid Response Team to assist in the removal of the Prosecutrix from the ERB Office. Within about 10 minutes later, the G4 Rapid Response Team arrived at the Kitwe ERB Offices who tried to reason with the Prosecutrix urging her to take leave. Despite such persuasion, the Prosecutrix refused to take leave with the result that DW3 firmly instructed the G4 Rapid Response Team to remove the Prosecutrix from the premises. The Prosecutrix was accordingly removed. Asked whether he had witnessed any assault by the Accused on the Prosecutrix, DW4 stated that he witnessed no such assault. This evidence was not contradicted or shaken by cross-examination. 5. SUBMISSION Your Honour, the Accused respectfully submits that the elements of section 248 of the Penal Code have not been established by the evidence laid before you so far. This submission will be amplified below. It is noteworthy that the Prosecutrix did not call any witnesses to corroborate her testimony. Furthermore, the stapler which was allegedly employed in perpetrating the assault has not been adduced or laid before this Honourable Court. The Prosecutrix merely made a bald statement from the dock which was not supported by any objective evidence. Indeed, the Prosecution’s evidence has been prejudiced by a dereliction of duty on their part, viz, their failure to produce the stapler, a failure that is so overwhelming as to render any conviction flowing therefrom unsafe. In the estimation of the Accused, the evidence which the Prosecutrix gave before this Honourable Court in this matter is manifestly unreliable at best. The crystal clear evidence tendered by the Accused’s witnesses clearly shows that, without any prior provocation by the Accused, the Prosecutrix conducted herself in a rowdy, boisterous and disorderly manner at the ERB Kitwe Office even when she was politely told to take her leave. Despite repeated pleas by DW1, DW3 and DW4, among others, for the Prosecutrix to depart from the premises, the Prosecutrix maintained her studied refusal to leave even when she knew or ought to have known that her continued presence at ERB Kitwe Offices amounted to a trespass. The irrefutable evidence before the Court is that the Prosecutrix was not assaulted or battered by the Accused or any other ERB staffers. Clearly, the evidence available discloses no actus reus capable of supporting the allegations set out in the charge. Simply stated, no unlawful violence was applied on the person of the Prosecutrix by the Accused on the material date. In fact, on the basis of the evidence adduced, the Accused had no physical contact with the Accused. It is respectfully submitted that the evidence as a whole, and in context, support the Accused’s contention that he did not commit any assault or battery on the Prosecutrix. Salmon J., in Regina v Spurge held that “if the Accused’s explanation leaves a real doubt in the mind of the Court, he is entitled to be acquitted.” It is humbly submitted that the evidence placed before this Honourable Court creates real doubt as to whether the Prosecutrix was assaulted by the Accused. Accordingly, such doubt must be resolved in favour of the Accused. Your Honour, the nature of the Prosecution evidence before you discloses a well calculated and orchestrated ploy by the Prosecutrix to implicate the Accused in an offence which never occurred. A fortiori, the Prosecutrix in her testimony sought to introduce extraneous matters regarding the Accused’s alleged refusal to render maintenance support to his and the Prosecutrix’s children. It is respectfully submitted that evidence touching on such extraneous matters ought to be expunged from the record. For all that it is worth the said evidence has no probative value and serves no useful purpose in these proceedings other than a theatrical exhibition of falsehoods in a bid to evoke sympathy from the Court. 6. CONCLUSION Your Honour, the Accused submits that the State has lamentably failed to prove what it had set out to prove. The evidence of the Prosecutrix has been demolished by the testimony of the Accused’s witnesses which remains unchallenged, uncontradicted and unshaken. I would respectfully submit that the prosecution has failed to discharge its evidentiary burden let alone prove its case beyond reasonable doubt. In the premises, this Honourable Court is respectfully requested to find that that no assault occasioning actual bodily harm was perpetrated on the Prosecutrix by the Accused. It is my humble prayer that this Court should dismiss this charge with costs in favour of the Accused. I humbly submit. Dated at Kitwe this 10th day of June 2013 Per: ___________________ Duce Hastings Chilomo House No. 2831 Jacaranda Street Buyantanshi KITWE Accused’s Address for Serv
Posted on: Thu, 27 Jun 2013 11:08:49 +0000
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