19891218 TZCA Mwanza9

i I * 'II' • IlJ TUE. COURT OF .A.PPE.'LL OF TLNZJJ~L;. AT I!WPJrL..A ( coru.M, M(,Trr,~,irr:, J •J.'l.. e 2 OJi,1~R l.L'l.L. 9 J D-'-• 'i A=d 1>,r;:;i•,T 2 .!.1.ll TT r. J b J.1.e •\ ) 9 J.'iJ..:JJ..\..UJ.'.LJ!I... ·•.u.•r....W..L.1.J.tl.7 CRTIUN.AL .4..PPEAL NO .. 124 OF 1989 BliJfiTEEN KULWA k_ljJJIMA.o . . o 'o • • • • •• 0 •• .A.PPELL.lJJT And THE REPIJP-iLIC. .. 0 • •. o. 0 • • • o • RESPOl\TDENT (Appeal from the conviction of the High Court of Tanzania at Tabora) ( Chipeta 2 J,.) · dated the 30th day of J','ic;,y, 1989 µi ... Criminal Sessions Case No.,100 of 1985 ·JUDGl',DTIN'.r OF TT.J.E CCJCJRr MAICAME, J. A. : At his trial in the High Court sitting at Tabora ( Chipeta, Jo) it ·was common ground that the appellant killed his wife I,IILIT:e::::n f:-LJL1Ia at Shabuluma Village in Shinya.nga District on 25th Febrwiry, 1984. The controversy was only over 1r~ether or not the killing Wd.S done. . . ' with malice afo1•ethought. The Prose·cution contended that t:10re was malice aforetb.ot1.Gb.t, whereas the appellant asserted that he uc1s insane wlien he committed the deed. The lea..rned trial judge, after· a ca:eefu.l review of a.nc1. analysis of the evidence, agreed with both his assessors that the appellant was compos mentis when he killed the deceased and so he convicted the appellant of Nurder and dtD.y condemned him to death. In this ap1)eal befor•e us the appellant was advocated for by Mr. Rugarabamu, learned Counsel, while Ur. :Gile..ro, learned :::i-t;2,te Attorney, represented the responde~t Republic in opposition of the appeal. 2 Mr., RugaralJamu continued to press. t)·:i.e defence that his client ~ insane at the material time and that, mo:i::eover, in that stc,te of mind, the appellant was provoked by the :9:rosence of the deceased. in the appellant I s :room, in which tl'1e appellant 1-ras sleeping alono 9 so late at night. There is on record evidence establisl1ing that some time pi•ior to the unhappy incident the appellany was afflicted by. some mental disease, refer-red to as r Chemba Mayor• The Republic has conceded as much. Th_e testimony of PW.1 SiuWC,:~ Kt.JLWL, the a:ppello.nt I s daughter, that of the appellant I s ne~'ghbour, PW. 2 J'.>IB:OJL TZi.:;...'.1-TYJ... z and the evidence of D'W.1 MirfE!:lDA KULWA 1 the ap;ellant I s son~ went to show that the appellant was not well mentally. Be had been behavi:.l'lg abnormally and had to resort to a medicinemari for treatment befoi•e t the incident. In the fatef'ul even4ig the appellant· and tbe deceased :retired to bed each in his or her own ·room. P}1.1 was aroused from slee1) by some cries in tl1e appellants' room and when she went the:;;e S:.1e fou.-rid the appellant pressing_ the deceased against a pillar. She t:i. ierl to 0 intervene by pulling off the appellant lmt the latter pusb.c0, her off and said "Leave meJ I will kill you too"~ Then the appellant 2,nd the deceased rushed out of the house, and sho:;:-tly afterwa.:cds the deceased collapsed outside PW.2 1 s house and died. She h~d stab wounds. PW.3 JIDAI.ii:llJE NG 1H..d1..l was the W.:~~d Secxetary for the a:i:-ea at the material time., He told the t1~ia1 Cot..U't that on 26th I,1e1J1•un.ry, 1984, that is tlle rnorni...11g immediately after tb.e killing tl:i.e a:.,,pellant reported to him that he had killed the deceased at Shabuluoa, u~1ich is some ten miles from the ";fard Off-ice. Th0 appellant told liim that he killed her because she had killed his clJ.ild and now he i'.ad. a.ecided to surrender h:i.mself to the Government 0ec2.v_se he was bejJ1::; :.oo~:ed -3 The appellant also· added that he had to l'l:m a,-ray and hide i.:i.:.1til it was dawn. There w2.s also put in evidence a :2s:9ort by a :psychia.trist Exb..P. 2 acco:;.•ding to 1-tllich the appellant was sane when he killed. Another m_edical l'eport,· a PFo 3 filled five do,;;rs after t:!.le killing, · pslY,chopathio . said that the appellant was . , . ir:L th delusional id.e..-,s "otherwise he is mentally ok'.tt 0 . When called-u:p?n to defend himself the appella.nt, wl,.o of course had an advocate, elected to say nothi.;.1go Going lJy the evidence we a:re un2.bl6 to agree 1d th Ero 2·1..1.;:;a..ra1Jamu rtllo urged us to fault the High Court decision. The ·1ea.:m0d t:;.•ial judge correctly directed himself on the 18-H :cegarding an accused person I s burden of proof 1-there the def e::1ce · put forward is thct of insanity. lTi th that in mind he looked at the evidence a.11cl :ceacl1ed the conclusion that at the material time the appellant was not insaneo When Pi'T.1 tried to stop him fl"Om attacking the decea,sed the appellant threa,tened to kill PW. 2 too 9 whicl"- means he knew that "1e was killing the deceased. He immediately went into hidi11g, as h'e told PW. 3, obviously because. he lrnew_ ' he h;:;,d something to hide from, . not quite the conduct of an insane person w:.10 did not k:no1;- tl:.at what he had done was wrori..g, and then he t?ekked the ten miles to PW.3's office to make the report the nature of which only goes to confi:rm that he appreciated what he l1sd clone. The fo1•egoing·, coupled with tl1e medicd :reports l"'GfeITecl to 1 I make us aoo:rec nith the trial Court "that the appellant failed to .. show, albei~ on a balance of probability that he was moj~e l:i.l>::oly insane than sane at the material time. ,.. . 4 -- The 102:.rned judge went on, gratuitously -as it were, ,;,,nd considered the issue of provocation,· uhich was not raised b;r the Defence., Ile obse:L"Ved that there was no evidei1ce of a q_ua:r:rel p:cior to people in the house going to bed, and t::;.e a:!.)pellant did not tell PW0 3 that he had been provoked.,it~ro :T.-1.l,garabamu urged '..!S to :in . find that the mere presence of the doceasedLthe appellant's ro~n so late at nigl1t would have provoked t~1e deceased., Then tl1e::e was the quarrel over money the appellant tol~ the psychictrist about., . ·1ilce the· trial Court we are not sctisfied that tl:ero -..~c:,s ( enough reliai:Jle ;rrateriru. from which to hold t:1at the appeJ.lc.nt killed under 1ee;al provocation. The ap1)ello.nt had some mental pro".JJ.0;'.:1 1::ut in our view, the learned trieJ. juclg·e 1ms :tight in the c)_j.>c.,1.mstances to hold that the· appellant· was not insane within the mean:::nc; of tlle lawo We accoI•dingly dismiss the appecl. D..lTED at }iWlµf~i. this 18th day of December, 1989. I \._, JUSTICE O?'L.PPELJ.. A. M. Ji.. QIILill JUsr ICE OF .iU:PELL I certify that this is a true copy of the ori€;inaJ.D