[1950] EACA 555

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

Before SIR NEWNHAM WORLEY (President), SIR RONALD SINCLAIR (Vice-President) and Briggs, Justice of Appeal

ABDURABI s/o MUSA, Appellant (Original Accused)

# v

# REGINAM, Respondent

### Criminal Appeal No. 131 of 1956

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

Interpretation—Section 200 of the Tanganyika Penal Code.

(23-7-56).—This was an appeal from a conviction for murder. The appeal was dismissed but, as a result of a passage in the judgment of the trial Court, the Court considered the interpretation of section 200 of the Penal Code, which provides that malice aforethought shall be deemed to be established by evidence proving, inter alia, an intent to commit a felony. This was wider than the law in England and was due to the fact that unlawful wounding, which is a misdemeanour in England, has been made a felony in Tanganyika (and also in Kenya and Uganda) for reasons which are not apparent. In all the cases in England where a person has been convicted of murder because the deceased died as a consequence of violence inflicted in the course of a felony, the felony was not the act causing death but a separate and distinct felony such as robbery or rape. While the point was not fully argued and a decision on it was not necessary for the determination of the appeal, the Court expressed the view that where the essence of the offence is the intention to do bodily injury to the deceased, paragraphs $(a)$ and $(b)$ of section 200 are exhaustive of the type of intention which will cause that act to amount to murder. Where, on the other hand, there is an intent to commit a felony other than one of causing personal injury, then paragraph $(c)$ applies; in some such cases an intent to commit a personal injury may be an element in the felony but it is not the gist of the offence.

Appeal dismissed.

Case referred to: Petero Sentali s/o Lemandwa v. Reg., 20 E. A. C. A. 230.

Appellant absent, unrepresented.

#### Davies for respondent.

JUDGMENT (prepared by Sinclair, Vice-President).—This is an appeal from a conviction for murder by the High Court of Tanganyika. As we have already intimated, we have dismissed the appeal and now give our reasons for so doing.

The material facts are that the deceased, though engaged to be married to another man, was the mistress of the appellant. On the day before the deceased's death, the appellant called at her house to find her entertaining another man. The deceased told him that he could not visit her that day. He spent the night in a maize store. The following morning he met the deceased accused her of infidelity and asked her to have sexual intercourse with him. The deceased said there was no opportunity that day and added, "To-day, you go and have intercourse with your mother". The appellant became angry, drew his knife and stabbed her in the neck causing fatal injuries.

There are two grounds of appeal. The first is that the learned trial Judge erred in law in drawing an adverse inference from the appellant's election to make an unsworn statement. In an unsworn statement at the trial the appellant

said that he intended to stab the deceased in the arm only and had no intention of killing her. The learned Judge did not believe that statement and found, as did the two assessors, that the appellant killed the deceased intentionally. He was entitled to draw an adverse inference from the failure of the appellant to go into the witness-box and submit himself to cross-examination on this point and the comments which the learned Judge made on such failure were both fair and justified. He based his finding, however, mainly on the other aspects of the case including the failure of the appellant to explain how, in the absence of a struggle, he could have stabbed the deceased in the neck when he intended to stab her in the arm and the fact that he made no mention of such an intention in the extrajudicial statement he made to a magistrate. We can see no reason to disturb that finding.

The second ground of appeal is that the learned trial Judge misdirected himself in holding that the cumulative effect of the provocative acts did not collectively constitute provocation sufficient in law to reduce the homicide from murder to manslaughter. We agree with the learned Judge that the acts relied on as provocation, whether considered separately or cumulatively, did not constitute such grave and sufficient provocation as would be sufficient to reduce the charge to manslaughter. We are satisfied that the appellant was rightly convicted of murder.

There is, however, one passage in the judgment which has caused us considerable difficulty. That passage reads: —

"It may well be contended that even if the accused is to be believed, and that he intended to stab the deceased in the arm, this homicide would still constitute murder by section 200 of the Penal Code, as the accused intended to commit the felony of wounding."

Section 200 of the Penal Code is as follows: -

"Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances-

- (a) an intention to cause the death of, or to do grievous harm to any $(a)$ person, whether such person is the person actually killed or not; - (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; - (c) an intent to commit a felony; $(c)$ - $(d)$ an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony."

Paragraph (c) of that section is wider than the law of England. In construing paragraph $(c)$ of section 186 of the Penal Code of Uganda, which is in the same terms as paragraph ( $c$ ) of section 200 of the Penal Code of Tanganyika, this Court said in Petero Sentali s/o Lemandwa v. Reg., 20 E. A. C. A., 230:-

"In this respect the law of Uganda would appear to be wider than the law of England. In R. v. Jarman, (1946) L. R. K. B. 74, the Court of Criminal Appeal said:

'We think ... that he who uses violent measures in the commission of a felony involving personal violence does so at his own risk, and is guilty of murder if these violent measures result even inadvertently in the death of the victim.'

This was a restatement of the rule approved by the House of Lords in R. v. Beard, (1920) A. C. 479 at p. 493. In Uganda, however, it is sufficient if death be caused by an unlawful act or omission done in furtherance of an intention to commit any felony."

On the face of it this passage is a justification of the direction which we have cited above. It may, however, be that, though correct in reference to the facts of that case, it was expressed in too general terms. We think that section 200 of the Tanganyika Penal Code was intended to be a codification of the law of England as to malice aforethought and, if that is so, then English decisions are relevant to its interpretation. So far as we are aware, in all the cases in England where a person has been convicted of murder because the deceased died in consequence of violence inflicted upon him in the course or in furtherance of a felony, the felony was not the act causing death, but a separate and distinct felony such as robbery or rape. It may well be, therefore, that the true construction to be put on paragraphs $(a)$ , $(b)$ and $(c)$ of section 200 is that where the essence of the offence is the intention to do bodily injury to the deceased, in those cases paragraphs (a) and (b) are exhaustive of the types of intention which will cause that act to amount to murder. Where, on the other hand, there is an intent to commit a felony other than one of causing personal injury, then paragraph (c) applies; in some such cases an intent to commit personal injury may be an element in the felony in question but it is not the gist of the offence. If that is not the correct construction, the consequences would be appalling. As unlawful wounding is a<br>felony in Tanganyika and "wound" by definition means "any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane", a person who intentionally and unlawfully inflicted a minor cut would be guilty of murder if death resulted from that injury. It would surprise us if that were the intention of the legislature. The point, however, was not fully argued before us and a decision on it was not necessary for the determination of the appeal. The whole trouble arises from the fact that unlawful wounding, which is a misdemeanour in England, has been made a felony in Tanganyika (and also in Kenya and Uganda) for reasons which are not apparent.