[1952] EACA 229

## COURT OF APPEAL FOR EASTERN AFRICA

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

## GODIYANO BARONGO s/o RUGWIRE, Appellant

$\mathbf{v}$ .

## REX, Respondent

## Criminal Appeal No. 262 of 1951

(From the decision of H. M. High Court of Uganda-Ainley, J.)

Insanity—Burden on accused to rebut a natural presumption.

The appellant was convicted of murder by the High Court of Uganda. The Judge was prepared to find as a fact that appellant's brain must have been inflamed and poisoned by drink but refused to believe that his intoxication was so complete as to amount to legal insanity.

*Held* (14-1-52).—The burden resting upon the accused when attempting to rebut a natural presumption which must prevail unless the contrary is proved will never be so heavy as that which rests upon the prosecution to prove defendant in civil proceedings. It must, however, at least establish the probability of what is sought to be proved.

Cases cited: Rex v. Howards Bateman Carr-Briant, 29 C. A. R. p. 87. Appeal dismissed.

Jaswant Singh for appellant.

McMullin, Crown Counsel, Uganda, for Crown.

JUDGMENT.—The sole issue in this appeal from a conviction of murder entered against the appellant by the High Court of Uganda is whether the learned trial Judge was wrong in refusing to bring in a special finding of guilty but insame. There was some evidence pointing to the fact that during several hours preceding the crime the appellant had been drinking heavily and the learned Judge was prepared to find as a fact that his brain must have been inflamed and poisoned by drink. He, however, refused to believe and his assessors were of the same opinion that the appellant's intoxication was so complete as to amount to legal insanity. We find nothing in the exhaustive and careful analysis of the evidence made by the learned Judge which indicates that he placed too high an onus on the appellant to prove his insanity. On the contrary he has advanced what seem to us unexceptional reasons for his conclusion that as a matter of probability the appellant knowingly decided to kill the midwife Euleni, and later attacked and killed deceased because he had interfered. In other words, the defence failed to satisfy the Judge of th probability of that which the appellant was called to establish, namely, his insanity at the time of the commission of the crime. We base this observation on the concluding passage of the judgment of the Court of Criminal Appeal in Rex v. Howard Bateman Carr-Briant, 29 C. A. R. at p. 87, which was a case which fully deals with the nature of the burden resting upon an accused when the attempt is made to rebut a natural presumption which must prevail unless the contrary is proved. This burden will never be so heavy as that which rests upon the prosecution to prove the facts which they have to establish and it will not be higher than the burden which rests on a plaintiff or defendant in civil proceedings. It must, however, at least establish the probability of what is sought to be proved. That is what

the learned trial Judge held that the appellant failed to do in this case and the only question that remains for us to consider is whether on the evidence before him, the learned Judge could reasonably come to the conclusion that he did.

We are of the opinion that the learned Judge's finding was justified even in the face of the evidence of Dr. Cherry, the only medical man called, for if this evidence is examined it does not amount to anything much more than Dr. Cherry's inability to explain this ferocious and motiveless crime on any other hypothesis than madness brought about by drink. Looked at in this way it is evidence which might have been given by any layman in support of an employee who had hitherto enjoyed a blameless reputation.

Dr. Cherry saw the appellant a little less than 12 hours after the crime. He was then quite normal and showed no signs of "hang-over" or drunkenness except that his eyes were reddish. There was no evidence also that shortly before the crime the appellant was incapable of rational speech and action and according to the midwife, whose evidence was fully accepted, he recognized the deceased when he came upon the scene. Lastly, it was the appellant himself who raised the alarm and announced what he had done.

Taking all this into account the learned Judge felt quite unable to assume even the probability that at the time of the commission of the offence the appellant's mind was so affected by drink that he was quite incapable of understanding what he was doing or of knowing that he ought not to kill people. There is evidence which fully supports this finding and that being so we are unable to say that a wrong conclusion was arrived at.

The appeal is dismissed.