[1950] EACA 532

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SINCLAIR (Vice-President), RUDD and MAYERS, J. J. (Kenya)

KONGORO alias ATHUMANI s/o MRISHO, Appellant (Original Accused) $\mathbf{v}$

## REGINAM. Respondent

## Criminal Appeal No. 42 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Law, Ag. J.)

Murder-Defence of intoxication-Misdirection as to onus of proof-Intent-Tanganyika Penal Code, section 14 (2) (b), 14 (4) and 12—Indian Evidence Act, sections 105 (2) $(a)$ and 114.

The appellant was convicted of murder and appealed on two grounds. First, that he was, as a result of intoxication, insane when he killed the deceased or secondly, that due to his intoxication he was incapable of forming the specific intent to kill or cause grievous harm which is necessary to prove malice aforethought. The trial Judge found that although the appellant's mind was affected by drink, he knew what he was doing and stabbed the deceased intentionally. It appeared from the judgment that he had made no distinction as to the onus of proof in the alternative cases under section 14 (2) (b) and section 14 (4) of the Penal Code but had placed the onus of proof in each case on the accused.

Held (30-5-56).—The trial Judge had materially misdirected himself on the law and it could not be said that, had he correctly directed himself that the onus rested throughout on the prosecution to prove beyond reasonably doubt that the appellant had formed the requisite intent when he stabbed the deceased, he would have reached the same conclusion.

Appeal allowed in part. Conviction for murder set aside and conviction for manslaughter substituted.

Cases referred to: *Woolmington v. D. P. P.*, (1935) A. C. 462; *Chan Kau v. Reg.*, (1955) 2 W. L. R. 192; R. v. Steane, (1947) K. B. 997; *Cheminingwa v. R. (supra p. 451)*; Nyamweru s/o Kinyaboya v. Reg., 20 E. A. C. A. 192.

Appellant absent, unrepresented.

## Ballard for respondent.

$\overline{ }$

JUDGMENT (prepared by Sinclair, Vice-President).—The appellant was convicted by the High Court of Tanganyika of the murder of a young woman, Mcha binti Hamisi, with whom he had been living for some three years previously, and whom he was intending shortly to marry. We allowed the appeal in part, set aside the conviction and sentence for murder and substituted a conviction for manslaughter for which we imposed a sentence of ten years' imprisonment. We now give our reasons for so doing.

The evidence established that the appellant on his return home late one night after a bout of heavy drinking stabbed the deceased with a knife causing multiple injuries from which she died. The defence was that the appellant was intoxicated by having drunk an excessive quantity of native beer and rested on two alternative grounds, (1) that due to such intoxication the appellant was temporarily insane when he killed the deceased: section 14 $(2)$ $(b)$ of the Penal Code. and (2) that due to his intoxication he was incapable of forming the specific intent to kill or cause grievous harm, which is necessary to prove malice aforethought: section 14 (4). The learned trial Judge found that although the appellant's mind

was affected by drink at the time when he killed the deceased, he knew what he was doing and stabbed her intentionally. In directing himself on the onus of proof he said in his judgment: —

"In coming to my decision in this unusually difficult case, I keep in mind that the Crown bears the burden of proving the accused's guilt beyond $\mathcal{L} = \mathcal{L}$ all reasonable doubt. I also bear in mind the presumptions that every homicide is prima facie murder, and that every man must be taken to intend the probable consequences of his acts. In rebutting these presumptions, and in establishing the defence of intoxication upon which the accused relies, a far lighter burden rests on the defence. It is sufficient if the accused can raise a reasonable doubt as to his guilt, and the reasonable probability of what is sought to be proved on his behalf."

There are material misdirections of law in this passage. There is no presumption that every homicide is prima facie murder. Furthermore, the learned Judge made no distinction as to the onus of proof in the alternative cases under section 14 (2) (b) and section 14 (4) of the Penal Code and when the passage is read as a whole and with the remainder of the judgment it is evident that he placed the onus of proof in each case upon the appellant. Since *Woolmington's* case, (1935) A. C. 462, it is well settled law that the presumption of sanity is the only common law presumption which shifts the burden of proof to the accused in a criminal case. In Tanganyika that presumption is embodied in section 12 of the Penal Code. The law was recently restated by Lord Tucker in *Chan Kau v*. *Regina*, (1955) 2 W. L. R. 192, as follows at page $194:$ —

"in cases where the evidence discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of murder and the onus is never upon the accused to establish this defence any more than it is for him to establish provocation or any other defence apart from insanity. Since the decisions of the House of Lords in Woolmington v. Director of Public Prosecutions and Mancini v. Director of Public Prosecutions, it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exceptions save only in the case of insanity, which is not strictly a defence."

The presumption that every man must be taken to intend the natural and probable consequences of his acts is merely an evidential presumption which may, not must, be drawn and it does not shift the onus of proof from the prosecution to the accused. As Viscount Sankey, L. C., said in *Woolmington's case* at page 480:—

"if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may, not must, find him guilty of murder. It is difficult to conceive so bare and meagre a case, but that does not mean that the onus is not still on the prosecution."

And in R. v. Steane, (1947) K. B. 997 at page 1004 Lord Goddard said: -

"No doubt, if the prosecution prove an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they are left in doubt as to the intent, the prisoner is entitled to be acquitted."

See also section 105 (2) (a) (as substituted by the Indian Acts (Application) Ordinance (Cap. 2)) and section 114 of the Indian Evidence Act.

The rule as to onus of proof under section 14 $(2)$ (b) and section 14 (4) has recently been clearly stated in E. A. C. A. Criminal Appeal No. 450 of 1955, Cheminingwa v. Reg. (unreported), when this Court said:

"It is of course correct that if the accused seeks to set up a defence of insanity by reason of intoxication, the burden of establishing that defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove. But if the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required to constitute the offence charged, it is a misdirection if the trial Court lays the onus of establishing this upon the accused. See E. A. C. A. Criminal Appeal No. 156 of 1955, Manyara v. Reg., and Criminal Appeal No. 72 of 1955, Festo Shirabu v. Reg. (both unreported)."

We do not accept the contention of Mr. Ballard for the Crown that the onus of proof in the latter case is shifted to the accused by virtue of section 105 (2) (c) of the Indian Evidence Act. Section 105 reads: -

"105. (1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact, especially within the knowledge of such person, is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in crossexamination or otherwise, that such circumstances or facts exist; and

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.

- (2) Nothing in this section shall— - $(a)$ prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; or - (b) impose on the prosecution the burden of proving that the circumstances or facts described in sub-section (1) do not exist; or - (c) affect the burden placed upon an accused person to prove a defence $(c)$ of intoxication or insanity."

In our view, sub-section 2 $(c)$ applies only to the defence of intoxication as defined in section 14 (2) of the Penal Code and has no application to section 14 (4) which merely provides that intoxication shall be taken into account for the purpose of determining whether the accused had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. That the burden of proving intention remains on the prosecution is clear from the provisions of sub-section 2 (a) of section 105 of the Evidence Act. $\frac{1}{2}$

There is no doubt that the appellant was in an advanced state of intoxication shortly before he killed the deceased. The learned Judge accepted his statement that he drank eight pints of native beer between 5 p.m. and when he killed the deceased. On the way home he called at a bar where he was truculent and started to quarrel with and insult one of the girls who worked in the bar. From there he had to be taken to his house. He was staggering and swaying and when he visited a lavatory he put his foot in the pit and fell. He had to be helped to get up. He said he had no recollection of visiting the bar and that, although he remembered

stabbing the deceased once, he did not know why he had done so. Dr. Tiagi, who saw the appellant about two hours after the killing, testified that he was not then under the influence of alcohol though he was smelling very strongly of alcohol. But he said that as the smell was very strong there was a possibility that he had been very drunk two hours earlier. Dr. Smart, the specialist in charge of the Dodoma Mental Hospital, who examined the appellant several times and heard his story, expressed the opinion that there was a possibility that he was too drunk to form the specific intention of killing the deceased or of doing her serious injury. The attack upon the deceased was a very violent one with a lethal weapon. The use of such a weapon may indicate a malicious intent but it is not conclusive of such an intent, for a person may be so drunk as to be utterly unable to form any intention at all and yet may be guilty of very great violence: Nyamweru $s/o$ Kinyaboya v. Reg., 20 E. A. C. A. 192. Here there was no evidence of any quarrel between the appellant and the deceased and the killing appears to have been completely motiveless. Taking all the circumstances into consideration we are unable to say that, had the learned Judge correctly directed himself that the onus rested throughout upon the prosecution to prove beyond reasonable doubt that the appellant had formed the requisite intent when he stabbed the deceased, he would have reached the same conclusion.