[1994] UGSC 30

altie to to Nite de IN THE SUPREME COURT OF UGANDA

INSANITY AT MENGO

CORAM: MANYINDO, D. C. J., ODER, J. S. C., AND PLATT, J. S. C.

CRIMINAL APPEAL NO. 29/1992

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SEEASTINO. HAKI ZIMANA...................................

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(Appeal against sentence of High Court decision holden at Fort Portal (Hon. Justice $I_{\bullet}K_{\bullet}$ Mukanza J) dated 18th. March, 1992),

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## HIGH COURT CRIMINAL APPEAL NO.374/91

#### JUUDGMENT OF THE COURT:

The Appellant was convicted of murder contrary to Section 183 of the Penal Code Act and sentenced to death. He appeals mainly on the ground of insanity. In the first ground of appeal he complains that the statement he gave in his defence was wrongly rejected, and in the second ground he complains that the Republic had failed to prove malice aforethought beyond reasonable doubt.

The facts were quite simple and were related in the main by Kanyonyi Erika (P. W.3). This witness observed that om 1st. August, 1990, while he was in his garden digging at around $8.00$ a.m., he heard a noise as if something were exploding, and looking at the home of the Appellant, he saw the Appellant's wife Rose falling down. He then saw the Appellant hit his wife on the head with the blunt side of an. $exa_c$

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He raised an alarm and ran to the authorities and reported to, Mr^c Erikana Biremwa, the R\*C. I Chairman. The people towhom Kanyonyi. had reported\* came running to the scene as well as others. Rose lay where she had fallen dead. She. had sustained cuts on the head and she had be.en bleeding from the nostrils, ears and mounth. The axe which.the Appellant- had used in hitting his wife was lying, there beside the body, and the Appellant himself was inside the house.. The Accused was, persuaded to come out of the house by Mr. Biremwa Erikana (,PaW.4)j the Chairman ^RoCb^ol, and the authorities tied him up and took him. under arrest to the police post at, Hima\* At the police station the police recorded ^a statement from the Accused. It seems that the axe had also been taken to the police post. Throughout this time the Appellant appears to have admitted killing his wife either by accident, or without any intention to have done so.

In his statement to Detective Inspector Kamugisha Severino (P. W.2) the Appellant, stated that he had not quarrelled with his wife, and he had hit her on the head by accident. She had died after the assault.

The situation was, according to the prosecution witnesses who. knew the Appellant, that the Appellant, a person of quiet character, except when he was drunk was not expected to have behaved like this\* Mr. Biremwa Erikana stated that ho was suprised and annoyed at the way the Appellant had killed his wife^ and, indeed, he had not expected him to behave in that way\* Mr^c Kanyonyi Erika the Appellant's brother—in—law, did not know any reason why the Appellant had assaulted his wife\* They had lived together peacefully, and the Appellant had never been known to behave in a wild way\*

On this occasion the Appellant was not drunk, and so there was no reason why he should haver' assulted his wife\* The first reaction to such a situation must be, that the prosecution would take upon itself the burden of proving malice aforethought without any reason and without any motive\* While it is not essential to prove motive, at the same time where, a person has acted strangely and out of character in a very wild way, the situation must, suggest that perhaps- something was wrong with him\* Constable Ogwal. (PtW\*l) who arrested the Appellants at- midday on lsb August. 1990 did indeed form the opinion that the Appellant w\$ mentally confused at- first, although later he formed the opinion that the Appellant was just pretending^ His behaviour at the time of arrest was that ho was violent, and had had to be handcuffed, and even so had wanted to jump off the vehicle\* But. the Appellant was talking sensibly and regretted that ho had killed the woman, and was praying to God for forgiveness. The Constable found him in a dity state^ including his body and clothing, and also his. legs because he had been digging in the shamba. Altogether the Constable thought that he was really in a normal state of mind, especially after five days, when he saw the Appellant in prison. However, it is on record that when he first went to arrest the Appellant he looked mentally **confused** and, of course, if he had been suffering ^a mental episode he could calm down in the days that followed^

3 rw

The statement taken by the Inspector (PeWg2) on the 2nd August, 1990 occurred while the Appellant remained **.handcuffed** because he was wild\* Before ho made his statement ho seemed to the Inspector "a bit. disturbedThe Accused was able to understand, bub at times he could ''jump about % The accused appeared wild and he jumped up as someone who had lost his senses\*

This appeared to the Inspector to be somebody "who was not okay". The Inspector relates that once the Appellant was in his room, the Inspector **Eolt<** that it was unsafe to untie him, and this was ^a sign exhibiting that this: man was not mentally all right\* However, the Inspector explained that while such a person exhibiting such behaviour, would normally have been taken for mental examination, there was no money to do that, in order to establish his mental condition\* But it would have been ^a good case for mental examination, if there had been funds\*

It. is clear, therfore, that the police, witnesses had generally formed the impression, that the Appellant was net mentally sound at the time of his arrest, and gave the Inspector the feeling that he was not mentally sound at the time he made the statement\* As against their evidence, there is the evidence of Kanyonyi Erika, the Appellant's, relation, and the Chairman. R. C;. 1 who discounted the possibility of the Appellant being of unsound mind. The result is that the prosecution had putforward two possibilities. The first, based on the police evidence, was that the Appellant appeared to be of unsound mind, and the second, based on the evidence of the brother of the Deceased and the R. C\* 1 Chairman, who thought that he was of sound mind. When the prosecution is uncertain which of such. possibilities is correct, it is vital that the Appellant be mentally examined, in order to ascertain.whether malice afore— ⁱ thought be proved beyond reasonable doubt\* We would like to observe in passing, that after the defence has been put forward, the State could have called for medical evidence in rebuttaf or support of the defence; and indeed the Appellant could have been examined whilst he was in custody for two years before the appeal was heard, and any medical evidence ascertained, offered as additional evidence\*

**• • • • •**

*5*

In this case, it is most. unfortunate. to have to record that the Appellant vzas not mentally examined. It is also clear that, no post mortem examination was carried out; and the axe. was not sent to the Government Chemist for examination, concerning the allegation of some stains of blood remaining upon it. All these lapses were said to be due to lack of funds to carry out proper investigations, The only result can be that the prosecution ended in confusion, the possibility of insanity or sanity being left open. In these circumstances it is of importance to study the defence.

The Appellant explained in an unsworn statement that at. about midnight, when he was lying on his back, he heard a voice of somebody making an alarm that lie should go and rescue his sister^f. He got up and told his wife that he had heard the voice of his sister, and he went out to see what vzas happening. As he left the front of his house he heard the voice, and as he went, the voice went on extending further and further. He kept tracing the voice until in the morning he came back and told his wife\* He then suggested that his wife should go and find out whether his sister was safe. Apparently his sister explained to him that he had heard ghosts which wanted to take him. He went back home, and teing very tired he lay down, but once again he heard another voice. He started to chase the voice and from that time he started fearing other people. He could not remember what happened after that but found himself in prison. He said that he could not deny what the witnesses had told the Court, but he could not remember what had happened to his wife\*

This statement could very well disclose a classic case of parnoia. During an episode of this illness, under which the person is suffering from hallucinations, it is common

for a permit to complain of hearing voices. These voices may be well known to him. They may be persecutory, or imperative with direct instructions. A general description of such a mental illness, may be seen in Black's Medical Dictionary 36th edition at pages 442-445. In this case, if the defence is true, the voice of his sister could be heard calling for her rescue, and after hearing the voice several times he began to fear other people. This Court, of course, is not in a position to say that the Appellant was certainly suffering from paronia at the time that he killed his wife, without any evidence from a specially qualified person. But it happens that the defence could very well be descriving a case of paranoia, as descrived in Black's Medical Dictionary, in which case a defence under Section 12 of the Penal Code Act would be available to the Appellant.

It is then the duty of this Court to weigh the evidence of both sides, (See Pandya V. R. (1957) E. A. 336). Where the prosecution is unable to rule out insanity beyond reasonable doubt and the Appellant described in his defence a situation which clearly raises the defence of insanity, the conclusion may be that the Appellant has proved insanity on the balance of probabilities.

Looking at the judgment of the trial Court, the learned Judge posed the question whether the Appellant had discharged the burden of proof upon him. The Judge had very carefully directed himself on the law as it stands in Uganda today, bearing in mind the decisions of the East African Court of Appeal. The conclusion reached was that it was for the Appellant to prove that he was insane on the balance of probabilities.

The learned Judge set out the facts of the defence shortly. He was impressed with the fact that the Appellant had been He was impressed with the fact that the Appellant had been<br>unable to raise the facts of his illness at an early stage,<br>or to state that he had actually assaulted his wife, because he<br>had lost his memory as to that part of

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accused was conscious at the time of the act. But it appears that the learned Judge took the view that the Appellant had never raised the defence of insanity as such. The conclusion appears to be borne out by the following passage:-

> " The position is that the Accused had failed to raise the defence of insanity which was his duty to do so. So there was no basis which would induce me to think that the Accused was insane at the time he killed the<br>Deceased within the meaning of Section 12 of the Penal Code. The truth is that there was no evidence to show that insanity was more likely that sanity".

Although the learned Judge was distrubed by the fact that the Appellant had not been medically examined, yet in the circumstances of the case, it was not fatal to the prosecution case. It seems that the learned Judge believed the testimony of Kanyonyi Erika and Biremwa Erikana that the Accused had been known as a normal person and that he had appeard normal a few moments before he struck the fatal blow. Indeed: the Appellant appeared to the learned Judge to be a liar trying to exonerate himself, and that having in mind the use of an axe on a vulnerable part of the body, namely, the head, malice aforethought must be found to have been proved.

¹In choosing to follow the evidence of Kanyonyi Erika and Biremwa Erikana, it would be of interest to know what the learned Judge thought of the evidence of the Detective Inspector $(PW_2)$ . In setting out that evidence, the learned Judge noted that the Appellant did not look mentally sound to the Insepctor, but in the final analysis the learned Judge does not explain why he did not accept that evidence, or at least why the first impression of the arresting Constable and the very clear impression of the $\,$ Inspector, that the Appellant was of unsound mind could be negatived beyond reasonable doubt. It is difficult to see that the evidence of Kanyonyi Erika that he had observed the

Appellant sitting on the verandah with fols wife shortly before the fatal accident occurred, was any more than the fact that, the Appellant was sitting there\* The witness was somewhere away in his garden digging. He did not speak to the Appellant nor observe him closely^o In general, where the prosecution puts, forward two possibilities, it is necessary for the trial Judge, to be able to give reasons showing that one possibility can certainly bo ruled out\*

Wo may test the matter by looking at the opinion of the Assessors^ The first Assessor was very clear that he could not accept the evidence of the Constable and Kanyonyi that the Accused was mentally sound at the time of the act. He found that the lack of medical evidence could lead to injustice and therefore? be advised that malice aforethought had not been proved^a

In the case of the Second Assessor he found that the defence of insanity could be ruled out, but looking, at all the circumstances the Appellant should not be convicted of murder but of manalaughter\* Indeed that was. the final conclusion of the First Assessor, that the Appellant was guilty of manslaughter\* That was a strange result;, but it would seem that the effect of ^a successful defence of insanity\* namely, that the Assessors should advise a special finding was not specifically left to the Assessors as an option. The learned Judge recorded that, he explained Section 46 of the .^.ial pn Indictment Decree and asked the Assessors to consider this explanation. It. would have, been better to have directed the Assessors in a straight-forward manner, requiring ^a special verdict that if the Appellant did discharge the burden of proof of insanity, the Assessors should advise a special finding to the effect that the Appellant did the act charged but was insane at the time that he did so\*

The learned Judge also mentioned that he explained the law on diminished responsibility\* That. would also have resulted in a special finding, if that defence had been made out. It was apparently misleading to say that if the case was not proved, the Assessors should advise an acquittal ''and to consider my explanation as on Section^ T.\*I\*D% In the end, neither Assessor was satisfied that the Appellant was^t guilty of murder and one Assessor clearly should have advised a special finding•

Taking all the circumstances into account as it is the duty of this Court, to do on first appeal, it is clear that the preponderance of evidence lies on the side of the first impression of the arresting Constable^ the clear impression of mental confusion on the part of the Detective Inspector who recorded the Appellant's statement, a day later, and the Appellant's. defence\*. as a gainst the inexplicable sudden and violent attackon the Deceased as observed byK^nyopyi Erika, and accepted by Biremwa Erikana\* In. the absence of medical evidence it would be unsafe to rule out the possibility of insanity; while on the evidence on the record^ w the balance of probabilities, the only reasonable conclusion is that the inexplicable attack on tZ'V Deceased was due to insanity\* Consequently, the Appellant is not guilty by reason of insanity\*

Accordingly we allow the appeal, quash the conviction of murder and set aside the sentence of death, and substitute therefore\* the special finding that the Appellant did the act, but that he was insane at; the time that he did so and therefore, not guilty by reason of insanity. It. further follows that; in accordance with Section 42(2) of the Tria¹ pryJndictment^s De croc, this Court, must report the case for the order of the Minister, and mean while we order the Accused to be kept in custody as. a criminal lunatic at, Luzira Prison\*

Dated att Menga this day of April, 1994 ^o

#### S.»T» MANETNDQ

# DEPUTY CHIEF JUSTICE

# ^a.o^h;cu ODER

JUSTICE OF THE SUPREME COURT..

# H»G» PUTT

## JUSTICE OF THE SUPREME COURT

1 CERTIFY THAT THIS IS ^A TRUE COPY OF THE ORIGINAL

Signed:

J. MULANGIRA ^j EOR: REGISTRAR. SUPREME COURT