[1952] EACA 220

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BOURKE, J. (Kenya)

## OCHUKU s/o OCHEDE, Appellant (Original Accused)

v

REX, Respondent (Original Prosecutor) Criminal Appeal No. 253 of 1951

(Appeal from the decision of H. M. High Court of Uganda-A. J. Ainley, J.) Homicide—Self defence—Whether excusable.

The appellant was convicted by the High Court of Uganda of murder by stabbing his brother with a clasp knife in the abdomen. The trial Judge accepted appellant's story that as he was leaving the hut carrying a lamp the deceased grasped him round the waist from behind and started to wrestle with him but rejected his explanation that the wound was accidental and held the appellant intentionally thrust with the knife during a scuffle which was occasioned by the deceased's annoyance at the breaking of the lamp.

Held (8-1-52).—The circumstances of this case warrant the inference of malice as the only possible one and that this being so the appellant has been rightly convicted of murder.

Cases referred to: Rex v. Shaushi s/o Miya, (E. A. C. A.) Cr. App. No. 119/1951;<br>Rex v. Ngoilele, (E. A. C. A.) Cr. App. No. 42 of 1951; Regina v. Smith, (1837) 8 C. & P.<br>160, Rex v. Makandi, (1948) 15 E. A. C. A. 142; Rex. v. Semi

Appellant absent, unrepresented.

McMullin, Crown Counsel, Uganda, for Crown.

JUDGMENT.—The appellant was convicted by the High Court of Uganda of the murder of his brother Obaja by stabbing him with a large clasp knife in the abdomen. He inflicted one wound about halfway between the navel and the pubis which penetrated the abdominal wall: the medical expert witness stated that the abdominal wall is fairly thick and fibrous in that area and that very considerable force would be required to inflict this wound. The appellant has never disputed that he inflicted this wound but has relied upon the defences of accident, provocation and drunkenness.

The incident which led up to the stabbing occurred during a beer-party in the deceased's house on 17th June of this year at which the appellant was present. The appellant took up a hurricane lamp (which appears to have afforded the only light in the room) dropped it and broke the glass. There was a sharp conflict of evidence as to whether this was done deliberately or by accident, but the learned trial Judge, although he does not come to any definite finding on this, was inclined to believe the appellant's story that it was accidental, and he was not prepared to hold that the appellant broke the lamp-glass to create a cause of quarrel. He accepted the appellant's story that he apologized and promised to replace the broken glass.

The learned Judge rejected the story told by the Crown witnesses that the appellant then without further ado slapped and stabbed the deceased and appears to have accepted the appellant's story that, as he was leaving the hut. carrying the lamp, the deceased grasped him round the waist from behind and started to wrestle with him. The appellant said that he had also in his hand an open clasp-knife, which he had been using earlier in the evening to clean his drinking tube, and that, as he twisted and turned to break the deceased's hold. the blade of the knife was accidentally driven into the deceased's abdomen.

The learned trial Judge appears to have been sceptical of this story of the appellant having an open knife in his hand but decided the case upon the assumption that it was true and came to the conclusion that the story of accident was quite incredible. He had no doubt whatever that the appellant "intentionally thrust with the knife during a scuffle which was occasioned by Obaja's annoyance at the breaking of the lamp" and we see no reason to differ from this conclusion.

He also rejected, correctly as we think, the defence of drunkenness, holding that there was no suggestion of temporary insanity due to drink nor evidence of such a degree of drunkenness as would affect the appellant's power to form an intention to kill or cause grievous harm.

The learned Judge further considered the possible defences of self-defence and provocation. On the former, he says, "Not even the accused suggests that self-defence can be advanced and it is clear that any scuffle which took place was of a minor nature, not seriously endangering the deceased." On the question of provocation, he held that the mere seizure of appellant by his brother was not an act which would cause an ordinary villager of their class to lose his self-control and that the appellant's retaliation was out of all proportion to the provocation offered. He concluded therefore that the appellant "knowingly drove his knife into his brother's belly, intending to kill him and that there was no sufficient provocation partially to excuse his act."

The learned Judge was undoubtedly right in his conclusion on the question of self-defence if, as we think, he meant thereby that the appellant had failed to show that the killing was excusable as being committed in self-defence. It does, however, appear that the appellant was grappled by the deceased and, if so, he was entitled in law to seek to free himself: in other words, to defend himself. This brings in another aspect of the case which the learned Judge has not dealt with specifically. As this Court said in *Rex v. Shaushi s/o Miya*, (Cr. Appl. No. 119 of 1951 unreported): $\rightarrow$

"Being satisfied that the appellant had failed to show that the homicide was excusable, he appears to have then summarily dismissed any further consideration of the question of self-defence; but in Ngoilele v. Rex, (Criminal Appeal No. 42 of 1951) this Court said: 'If a man acting in good faith exceeds the power given him by law to defend himself and kills his assailant, the resultant homicide whilst not justifiable may yet be a mitigating circumstance so that his offence can be regarded as manslaughter and not murder.'

In addition to the authorities for this proposition cited in that judgment, we may refer to the direction to the jury given by Bosanquet, J., in Regina v. Smith, (1837) 8 C. & P. 160 at page 162:-

'Did the prisoner enter into a contest with an unarmed man, intending to avail himself of a deadly weapon? If he did, it will amount to murder. But if he did not enter into the contest with the intention of using it, then the question will be, did he use it in the heat of passion, in consequence of an attack upon him? If he did, it will be manslaughter.'

No doubt this element of self-defence may and, in most cases will in practice, merge into the element of provocation, and it matters little whether the circumstances relied on are regarded as acts done in excess of the right

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of self-defence of person or property or as acts done under the stress of provocation. The essence of the crime of murder is malice aforethought and if the circumstances show that the fatal blow was given in the heat of passion on a sudden attack or threat of attack which is near enough to cause loss of control, then the inference will be manslaughter."

In the case of Ngoilele (*supra*), this Court clearly regarded this aspect of the doctrine of "se et sua defendendo" as a part, not only of the law of Kenya but as a doctrine of the common law of England, and it affirmed this view in Shaushi's case, in the latter case citing also with approval the direction to the jury given by Bosanquet, J., in *Regina v. Smith*, (1837) 8 C. & P. 160 at p. 162, which had also been previously cited with approval by this Court in $\text{Re}x$ v. Makandi, (1948) 15 E. A. C. A. 142.

We are aware that the doctrine of chance medley, which was referred to in the last-mentioned case, has been held by the Court of Criminal Appeal in England to have no longer any place in the law of homicide. The term "chance medley", as it had come to be used in recent years, was a misnomer and historically, the expression only applied where the killing was *per infortunium*: that it to say, it applied to excusable as opposed to justifiable homicide (see Rex v. Semini, (1949) 1 K. B. 405). The Court of Criminal Appeal further said (at p. $410$ ):—

"The cases cited under that heading are to be regarded as illustrations of what the ... Courts have accepted as sufficient to reduce a killing from murder to manslaughter and all of them must now be read in the light of Holmes's case (1946) A. C. 588 and Mancini v. Director of Public Prosecutions, (1942) A. C. 1."

Earlier in the judgment the Court, after referring to cases cited in support of the defence of "chance medley" (including Regina v. Smith supra) said (at $\dot{p}$ . 409): —

"They are all cases which turn on whether there had been provocation enough to reduce the crime to manslaughter... It is enough to say that Holmes v. Director of Public Prosecutions lays down rules on the subject which are authoritative and are to be followed by all Courts when the question of provocation becomes an issue in relation to killing as the outcome of a quarrel or a fight."

No doubt it is very difficult and perhaps undesirable to attempt to draw fine distinctions between "grave and sudden provocation", "acting in the heat of passion and without premeditation in consequence of an attack", "exceeding the right of self-defence" and so on: nevertheless it would appear as if the Court of Criminal Apeal in England has laid it down that there is no room in the common law for the admission of any defence in relation to a killing as the outcome of a quarrel or a fight unless the circumstances fall within the rules as to grave and sudden provocation laid down in Holmes's case.

It must however be remembered that in Holmes's case the House of Lords was considering a case of provocation by words, though Their Lordships took the opportunity to state general rules on the subject. In Mancini's case, which was a case of killing consequent upon a quarrel, Lord Simon saw nothing to object to in the following passage in the summing up of the trial Judge:—

"If you think that there was such a disturbance going on, unprovoked by him he was not justified of course in using the dagger assuming you reject the plea of self-defence, that cannot be justified but if in the whole of the circumstances, i.e. having regard to the character of the people there,

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and the sort of conduct which was going on in such a place, you think that the blow may have been struck without any premeditation and in the excitement of the disturbance, whatever it was, it seems to me you might be justified in returning the verdict of manslaughter."

On this passage, Viscount Simon commented:—

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"It seems probable that the Judge in this passage was not referring to the defence of provocation, but rather had in mind the excuse which in the old books went by the name of chance medley. However the defence may be classified, the verdict should not, in my opinion, be upset on the ground of the above extract from the Judge's charge."

(This last sentence refers particularly to a criticism that the trial Judge ought to have said "should" instead of "might".)

Viscount Simon goes on to say that in his opinion on the facts of that case there was no evidence to justify a verdict of manslaughter, but it does not appear from the passage cited above from this speech that he thought there was any error in law in that passage from the trial Judge's summing up or that it was unduly favourable to the prisoner.

We note also that in the 1949 (32nd.) Edition of Archbold's Criminal Pleading, etc. at p. 899, the following still appears under the heading "Killing" by fighting:-

1. Quarrels. If two persons quarrel and afterwards fight, and one of them kills the other in such a case, if there intervened between the guarrel and the fight a sufficient cooling time for the passion to subside and reason to interpose, the killing will be murder—if the parties in their passion, fought immediately ... the killing in such a case would be manslaughter only, whether the party killing struck the first blow or not ...."

(This passage is not modified in any way in the Sixth Cumulative Supplement, dated 1st September, 1951.)

Again at p. 907 in the latest edition of Archbold the following passage occurs: -

"The proper direction for the jury in cases of killing by a weapon during a quarrel seems to be that given in *Regina v. Smith*, 8 C. & P. 160, 162 by Bosanquet, J., with the concurrence of Bollard, B., and Coltman, J.'

and then follows the passage cited by this Court in Shaushi's case.

On the other hand, the learned author of the 10th Edition of Russell on Crime (1951) at p. 521, after referring to the decision on chance medley in Semini's case, says: -

"Each case therefore must now be decided upon the established principles of justifiable homicide, or provocation, as the case may be."

It seems to us therefore that the position in England is a little obscure as the result of the judgment in Semini's case (which, we note, is referred to also on p. 899 of Archbold 32nd Edition) and it is to be hoped that it may soon be clarified by a further decision of the House of Lords or the Court of Criminal Appeal. In the meantime, we see no reason as matters stand to modify the views expressed by this Court in Ngoilele's case and Shaushi's case. This brings us then to the only question that has caused us any difficulty in this appeal. Can it be said that the learned Judge in his direction of himself and the assessors overlooked the possibility that the appellant in a bona fide effort to free himself

from the clutches of his brother struck the blow with the knife without any premeditation and in the excitement of the disturbance? After consideration we have come to the conclusion that even if he did not so address himself specifically, had he done so, he must have reached a conclusion adverse to the appellant. As the learned Judge observed in the course of his most careful judgment the appellant was never in any real danger and in using his knife in the way he did he acted out of all proportion which he had received. In other words we consider that the circumstances of this case contra the circumstances in Shaushi's case supra warrant the inference of malice as the only possible one and that this being so the appellant has been rightly convicted of murder.

The appeal is dismissed.