[1946] EACA 28

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and Sir G. Graham Paul, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

## SUNGURA s/o NGOLILO, Appellant (Original Accused)

## Criminal Appeal No. 13 of 1946

## (Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law—Murder charges—Acceptance of pleas of guilty of manslaughter -Procedure-Discretion to accept plea of manslaughter is Crown Prosecutor's not Court's—Proper test as to whether provocation sufficient to reduce to manslaughter—Ss. 201 and 202 of Penal Code, 1945 (Tanganyika).

The appellant in reply to charges of murder—two counts in one information -made a statement amounting to pleas of guilty of manslaughter on both counts. The trial Judge entered pleas of not guilty to each count of murder and Crown Counsel opened the case for the prosecution. The trial Judge then asked the assessors for their opinions on the facts as appearing on the depositions as to whether there was sufficient provocation to reduce the crime to manslaughter. Having heard the opinions of the assessors, Crown Counsel expressed the view<br>that the case must in law be one of murder. The trial Judge ignoring the express view of Crown Counsel and without formally entering a plea of guilty of manslaughter gave judgment finding the appellant on each count guilty of manslaughter and sentenced him to 7 years' imprisonment with hard labour on each count, concurrently.

The appellant appealed.

Held (11-2-46).—(1) That the trial Judge exceeded his rights in ignoring Crown Counsel's expressed view and himself impliedly accepting a plea of guilty of manslaughter.

(2) That the trial Judge in finding that the charge should be manslaughter and not murder misdirected himself as to the meaning of S. 200 of the Penal Code and that the question in this case whether it was murder or manslaughter depended not on S. 200 but on Ss. 201 and 202 of the Penal Code 1945.

(3) That the appellant had suffered no injustice as a result of the trial Judge having misdirected himself as to the law and that the sentences were not too severe.

Appeal dismissed.

Appellant absent, unrepresented.

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant in this case by his Memorandum of Appeal, appealed to this Court against the conviction of manslaughter and sentence of seven years' imprisonment with hard labour pronounced by H. M. High Court of Tanganyika, sitting at Lindi. In the particulars of his Memorandum, however, he made it clear that he was appealing against sentence only. The appeal against sentence was dismissed by this Court on the 6th February, 1946, but in view of the peculiar circumstances of the case we indicated that reasons would be given later for our dismissing the appeal.

In the High Court the appellant was charged upon an information setting out two counts of murder. In pleading to the two counts the appellant said "On both counts I killed not meaning to kill, in the sense that I had no previous intention. Suddenly the woman annoyed me and I stabbed".

The learned trial Judge quite rightly entered these pleas as pleas of Not Guilty to the charges of murder. Assessors were then chosen and took their places. The Judge explained to them their duties and Crown Counsel opened the case for the prosecution. At this stage the learned Judge apparently put to the assessors the facts of the case as set out in the deposition at the Preliminary Inquiry of one prosecution witness, referring to these facts as "the admitted facts", and asked the assessors for their opinion on the said facts. The object of this apparently was to get the opinion of the assessors as to whether on these facts there was sufficient provocation to reduce the offence to manslaughter. Having heard the views of the assessors, Crown Counsel expressed the view that "the case must in law be one of murder".

The learned Judge then proceeded to give judgment in the case, finding the accused guilty of manslaughter on both counts and sentencing him to 7 years' imprisonment with hard labour on each count, the sentences to run concurrently.

From these sentences the appellant appealed to this Court. Nothing whatever can be said in favour of the contention that the sentences were too severe. Because of a most trivial provocation the appellant brutally inflicted seven wounds on one woman and five on another. Both women died from their wounds. One of the assessors expressed the view that the appellant should have regarded the so-called "provocation" as a joke. The learned judge apparently agreed with that view.

It is clear that in finding the appellant guilty of manslaughter the learned Judge was proceeding as if he had entered the appellant's answer to the charge as a plea of "Guilty to Manslaughter", although so far as the record shows he never entered such a plea. That was a technical irregularity but in all the circumstances we are satisfied that the appellant has suffered not at all by that irregularity.

We consider it necessary to refer to the reasons given by the learned Judge for his ruling, on the pleas of the accused, on the depositions, and on Crown Counsel's opening, that the case was one of manslaughter and not murder. The learned Judge apparently based his decision on this issue primarily on the view which he took of the words "intention to cause death" in the definition of "Malice aforethought" in S. 200 of the Penal Code, as applied to the facts of this case. His view was apparently that in this case the appellant in attacking the women reacted so quickly to the "provocation" that his action was "almost automatic reflex action" and not "intention". It cannot be too strongly emphasized that this is a completely wrong view. The law must presume that a man intends the natural and probable consequences of his own act. That presumption may of course be rebutted by proof that the act occurred independently of the exercise of his will, or was an accident, or by raising a reasonable doubt as to either on the whole case. The mere fact that man decides on the spur of the moment to do something does not of itself rebut the presumption that he intended the natural and probable consequences of what he did. It is absurd to suggest that in this case the brutal and prolonged attacks on the two women were done either independently of the will of the appellant or by accident and the learned Judge was clearly wrong in holding as he did that the offence was manslaughter and not murder because the offence was committed on the spur of the moment.

The question of whether the offence was murder or manslaughter depends on quite other considerations. Sections 201 and 202 of the Penal Code deal with these considerations. The question is whether the act of the appellant the natural and probable consequences of which he must in this case be presumed

to have intended—was done in the heat of passion caused by sudden "provocation" as defined in Section 201 of the Penal Code, and before there was time for the passion to cool. If that question be answered in the affirmative in this case the offence is manslaughter and not murder. If the question be answered in the negative it is murder.

We think it necessary to point out that where there is an information before the Court charging murder it is for the representative of the Crown at the $\bullet$ trial to say whether he will accept a plea of guilty of manslaughter. If he does say so, then the accused should be given an opportunity of pleading unequivocally Guilty or Not Guilty to the charge of manslaughter. It is quite proper for the Court having heard the opening of the case of the prosecution to *suggest* to the representative of the Crown if the facts opened justify it that the case seems to be one of manslaughter and not murder, but the Court cannot itself decide that a plea of guilty to manslaughter should be accepted in lieu of proceeding with the trial of the murder charge. In this case the trial Judge exceeded his rights in ignoring Crown Counsel's expressed view and himself accepting a plea of guilty of manslaughter.

For the reasons we have given the appeal was dismissed.