19730628 TZHC Mwanza

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TIW ffflSflX 'IIVWI °j - ''bs 7,, 'tCoj • OJOJ:eg ooqo 1-° JO 1.'°3 1.OT1.TCI 01(1. JO oL6i JO 001 'ON 0S03 1 0 UTWTI3 -Tou 2 ro 16t a o VU ON rIV7,. cldV '1NIt'tIHD L IMOD HDIH ¶TZWMJAI JT INZNTt 410 Ilyfloo HOIH FIRL NI I) house, he inforrned'his relatives that he was ieving for Ussoke on duty, but on arrival at Tabora bus stand, the appellant took a bus at about 5 p.m. and proceed.ed'toward'Nzega. However, he continued, the appellant told him that he met one Shabani, a person who was in charge of Kahama/zega Cramex .a.ndr toJ.,d.Shabani that'he wouldreturnto'Tabora soon, and later, in the vening, he took 'a bus to 'Man.za'. where he spent a night. And that on the following day, the appellant tookanother bus for Bukoba where he enrolled himself, as a turnboy ih one of the lorries which travelled: to Uganda. Mr. Kipario:said that the appellant continued to tell him that he did not stay long in Uganda before he returned to Bukoba where he took another motor vehicle and proceeded on to Bjharamulo, and that from Biharainu.lo, the appellant took another motor vehicle which was procee&ing to Rwanda, but • when he arrived at the border with Rwanda the appellant "felt that he had got lost" and that during the night, he began to walk on foot back to Bi1iramulo, and that he did not pass through'the bush. 'He said that the appellaxt fold him that he walked throughout the'night, and that in the morning, he was given a lift by a Kilirno vehicle which took liim to Biharait He said that the appellant continued to t'elI him that he toOk another bus, from Biharamulo, and reahed Bukoba, and that by this time; he had exhausted • the money he had. However, he said that the appellant told him that he received help from his friends,.and managed to travel to Mwanza and sub- seiient1y'to Shinyanga, but he returned towards Mwanza again and on the way he chnged a vehicle and took one to Bu.chosa ginnery, 'in Geita, and where friends gäve"h'im fareo And that from Buchosa, the appellant travelled to Ch'oma—cha—Nkola, in Nzega District, where he had a brother, and then with the alleged brother, the appellant arrived in his (P.W.2)s) office on the :18th. of December, 1971, at Tabora. Mr. Kipario said that he was ,4 convinced by th'is lengthy story, and he cllad in the police. • The books of accounts were properly maintained except for the shorta' of money. The money was kept in a oupboard in a cash box. The appellant • did not have the key to the cupboard. He told his seniors and the police officer that he had lost the cupboard key,:.wherefore the police officer opened the cupboard by use of a screw driver. It was alleged that slight force opined the cupboard. The account books were found in order. . However, in the particular situation, it was not clear whether the money was found in the cash box or in the cupoardlthoughit appeared that the cash box must have been in the cupboard itself. The same applied to the other forms of'. paper money and vouchers. It t'ias not clear, at what. stage, of the proceedings, the appellant was ordered to be' examined at to his mental state. The medical officer, in the psychiatric unit at Tabora hospital, recorded some of his observations on the 1st day of January, 1971. He recorded that the 1thoughts and speech and memory of the appellant appear to be normal, but he added that the appellant "should be tinder obseivation by the people close with him in the Remand Prison for about 3 weeks". These words were und.erstood to mean that the appellant should remain under medcal observation for 2 more weeks, -3- but in fact the appellant was not closely observed although he was admitted • in remand prison. It appeared that the remand prison kept so , registers forremand prisoners - a general register and a register for mental cases. • In this case, the appellant was believed to have been registered in , the general register although the two registers were not produced in court for examination. • Jsit can be seen, the appellant was putting in issue his mental stateat the time of the alleged commission of the alleged offence. He was not claiming that he was still "mentally disturbed" at the time of his trial. Section 13 of the Penal Code Cap. 16 provides that insanity would • be a defence in a criminal trial, and the burden is upon the defence to prove it. It is for the defence to show, on all evidence, that insanity 'is more likely than sanity, though it may be ever so little more likely and that merely to ±'aisE a reasonable doubt might still leave the balance 1959 E.L. p. 974, titled on the side of sanity (see 'NYINGE s/c SUWATU v. R. REPUBLIC v. SAIDIKABILA KIUNGA 1963 E.A. p.1 and MBELUKE v. REPUBLIC 1970 E..A. p.471). The defence has to prove insanity on the balance of probability. On the basis of the evidence before him, the learned trial magistrate found that inanityias not proved. It was his ôonsidered view that the dascript- ion he gave to the Ma'nagar of the Board, ahd his being seen by the Medical Officer, the owndr of a guet hose at Mwanza, and the Prison Officer at 1 '1 Tabora Remand Pr,son,,the appellant did not prove that he was insane. With duC reseot I •find myself 'in great difficulty in understanding this point. In the first place, it is useful to note the insanity which would be a defence is that insanity which existed at the time of the taking of the money not necessarily at the time of physical taking of the money, and themeaning of time is reasonable time whiCh can be considered to be the time of committing an offence. The learnedtril magistrate did not address hisrnind on this issue, and I cannot lie certain, having regard to the word- ing of his judgemen -t, that he had this in mind when he was considering this issue. Secondly, the appellant claimed that he ±ecovered after he had ari"iv- edin'Bukoba. He did not'give anydCte f his arrival at Bukoba, but this thean -t that his return travels from Bukoba to Tabbra cannot have much weight since th'eappellant then considered himself ma state of repair. As to whether his acts soon after leaving Tabora, it is a matter of argument whether 'these acts were or were not indicative of presence of insanity. This is wheie a much fuller report from a qualified psychiatrist would have been of tremendous help. He would have been to advise as to the interpretation of these acts; In all fairness, it was 'too dangers to take them easily as acts consistent with a sane hiind, especially when the Medical Officer at the Psychiatric Unit, felt that clothe observation was necessary although on his first observationhe said that he felt that the appellant appeared to' be normal. He certainly d±d not make a definate finding as to the mental state of the appe1lnt whether as it was at the time of the trial orat the time of the alleged commission of the offenCe. I am satisfied. that this point was unsatisfactorily dealt with. There was no explanation why 4 -5- It may well be that there was a case hero, but having regard to the ±'ict that it was not dealt with clearly and in some d.etail during the trial, this court does not feel safe to uphold such conviction. In the circumstances, I cannot say that the prosecution discharged its burden of proof beyond reasonable doubt. ORDER: Conviction is quashed and the sentence and orders set aside. The appellant should be released forthwith unless otherwise lawfully held. Delivered in Court at Mwanza on the 28th of June, 1973. 2 / / - Z.N. El—ICindy 28th June, 1 973- JUDGE Mr. Tukunjoba for Appallant. Mr. M'bilinyi - State attorney for Republic.