[1951] EACA 198

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

### REX, Respondent

#### $\mathbf{1}$

## SHAUSHI s/o MIYA, Appellant

### Criminal Appeal No. 119 of 1951

(Appeal from decision of H. M. High Court of Tanganyika—Mahon, J.) Murder—Provocation—Responsibility determined by principles of English law.

The appellant was convicted of murder by the High Court of Tanganyika. The appellant alleged that in the course of a dispute the deceased drew a knife

and tried to stab him and he hit the deceased twice on the head with a bill-hook. The High Court rejected the appellant's contention that he acted in self-defence and also that he acted under the stress of grave and sudden provocation.

- Held $(29-6-51)$ .--(1) That the appellant had failed to show the homicide was excusable by reason of self-defence. But that the deceased's action in threatening to stab the appellant with a knife could in law amount to provocation. - (2) That section 18 of the Tanganyika Penal Code applied the principles of English law as regards criminal responsibility for the use of force.

Appeal allowed. Conviction of manslaughter substituted.

Cases cited: Rex v. Semini (1948) 33 C. A. R. 51; Holmes v. D. P. P. (1946) A. C. 588; Ngoilele v. Rex (E. A. Cr. App. 42/51) 18 E. A. C. A. 164; Rex v. Smith (1837) 8 C. & P. 160; Kwaku Mensah v. The King (1948) A. C. 83.

Innis, Solicitor General (Tanganyika), for Crown.

Appellant absent, unrepresented.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—The appellant was convicted by the High Court of Tanganyika of the murder of his brother and appeals on the ground that the learned trial Judge should have found that the appellant acted in self-defence or was acting under the stress of grave and sudden provocation and should have been either acquitted or convicted of manslaughter.

It is not disputed that following a quarrel over repayment of a loan of two shillings the appellant hit the deceased twice on the head with a bill-hook, fracturing the skull and causing injury to the brain which resulted in death. The appellant's case was that in the course of the dispute the deceased drew a knife and tried to stab him and that he struck the deceased in self-defence. It was proved that after the killing the appellant was in possession of a knife, which the deceased was in the habit of carrying about with him and a headman, to whom the appellant gave himself up immediately afterwards, testified that the appellant told him that the deceased had tried to stab him and that was why he (the appellant) had hit the deceased. On the other hand the witness Kamele, a sister of both appellant and the deceased, who testified that she witnessed the killing, denied that the deceased ever threatened the appellant with a knife.

One of the assessors accepted appellant's story of being attacked with a knife; the other rejected it. The learned trial Judge does not make a definite finding on this point in his judgment but concedes that "this may be the case". The judgment then proceeds: -

"Assuming however that the accused was so threatened it cannot be said that he was acting in self-defence and if it be argued that (the deceased's) act amounted to provocation in law, which I do not think it did, it is impossible to say that the accused's reaction bore any proper or reasonable retalionship to the provocation given.... the evidence leaves me in no doubt that the accused murdered his brother." $\mathcal{L}_{\mathcal{A}}$

$\cdots \cdots$ The effect of this passage in the judgment is that the trial Judge felt some doubt as to whether in fact the deceased had threatened the appellant with a knife but considered that, even if that were so, it afforded no defence in law in the circumstances of this case. We are therefore bound to give the appellant the benefit of this doubt and to assume the truth of his story. Our task then is to consider whether the learned Judge was correct in his conclusion that the facts did not establish any defence in law.

Section 18 of the Tanganyika Penal Code (Cap. 16 of the Laws of Tanganyika, 1947) enacts that—

"Subject to any express provisions in this Code or any other law in operation in the Territory, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English law."

There are not any express provisions or other laws in force which modify the application of English principles to this case.

We respectfully agree with the learned Judge's conclusion on the plea of selfdefence 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, for the appellant entirely failed to show that he endeavoured to avoid the assault and retreated as far as he could.

We cannot however accept the proposition that the deceased's action in threatening to stab the appellant with a knife could not in law amount to provocation. In Rex v. Semini (1948), 33 C. A. R. 51, Lord Goddard, L. C. J., delivering the judgment of the Court of Criminal Appeal in England, said (at page 57):—

"No one doubts that blows and probably threatening gestures if near enough and serious enough to cause loss of control may justify and indeed require the killing to be regarded as manslaughter only."

He went on to say (at page 58) that in *Holmes v. Deputy Public Prosecutor* (1946), A. C. 588, the House of Lords had laid down rules on the subject of provocation 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 fight. In the latter case, Lord Simon in a speech with which the other noble and learned lords agreed said (at page 597): --

"The distinction, therefore, is between asking 'Could the evidence support the view that the provocation was sufficient to lead a reasonable person to do what the accused did?' (which is for the Judge to rule), and assuming that the Judge's ruling is in the affirmative, asking the jury: 'Do you consider that, on the facts as you find them from the evidence, the provocation was in fact enough to lead a reasonable person to do what the accused did?' and, if so, 'Did the accused act under the stress of such provocation?'"

We do not feel satisfied that the learned Judge directed himself fully on this point: when he says that he does not think that the deceased's action amounted to provocation in law, he appears to have telescoped the three questions into one.

There is another aspect of the case which, with respect, the learned Judge does not seem to have sufficiently appreciated. 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 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 Rex v. Smith (1837), 8 C. and 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 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 and serious enough to cause loss of control, then the inference of malice is rebutted and the offence will be manslaughter.

We feel considerable doubt as to whether, if the trial Judge had fully directed himself on these aspects of the case, he would necessarily have come to the conclusion which he apparently reached, that the appellant was acting neither in self-defence nor under the stress of provocation. In these circumstances it is proper to take the course following by the Privy Council in Kwaku Mensah v. The King (1948), A. C. 83, and substitute a conviction for the lesser offence of manslaughter.

We have not overlooked the learned Judge's opinion that even if the appellant were provoked, his retaliation bore no proper or reasonable relationship to the provocation given. We think, however, that examination of the evidence does not support this conclusion. When the appellant entered his father's house, where the deceased was, he was carrying a stick and a bill-hook: the deceased also had a stick and carried his knife in a sheath under his shirt. When the appellant was threatened with the knife, he might if he had considered the matter coolly have contended himself with warding off the blow and seeking to disarm his opponent by using his stick. But it is not reasonable to judge too nicely the reactions of a man who is attacked and seeks to defend himself. It does not appear from the evidence in which hand he carried the bill-hook, but, if it were in the right hand, it would be almost inevitable that he should use it to defend himself rather than use the stick. The fact that two blows were struck is in this case immaterial for it appears from the medical evidence that the first blow, which may be presumed to have been struck without deliberation was alone sufficient to cause death.

The appeal is therefore allowed: the conviction of murder and sentence of death quashed. We substitute a conviction of manslaughter and impose on the appellant a sentence of seven years' imprisonment with hard labour.