Cheminingwa v Reginam (Criminal Appeal No. 450 of 1955) [1950] EACA 451 (1 January 1950)

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

# CHEMININGWA, Appellant (Original Accused)

#### ν.

### REGINAM, Respondent

# Criminal Appeal No. 450 of 1955

(Appeal from the decision of H. M. High Court of Uganda, Rasool, Ag. J.)

Intent—Effect of intoxication on—Onus of proof.

The appellant had been convicted of murder, his defence being that he was intoxicated at the time he committed the offence-Uganda Penal Code, section 13 $(2)(b)$ and $(4)$ .

Held (21-1-56).—That intoxication may provide a defence either by enabling the accused to<br>prove temporary insanity or by indicating that he was incapable of forming the intention necessary to constitute the offence. In the first case the onus is on the accused to show the insanity. In the second, the onus never shifts from the prosecution. Unless the intention is established the case fails at the outset and the Judge had erred as to the onus on this point.

Appeal allowed in part. Conviction for manslaughter substituted.

Cases referred to: Manyara v. Reg., 22 E. A. C. A. 502; Festo Shirabu v. Reg., 22 E. A. C. A. 454.

Appellant in person.

Few for respondent.

WORLEY, President.—This appellant was convicted by the High Court of Uganda sitting at Mbale of the murder of his wife. We allowed the appeal in part, setting aside the conviction and sentence for murder and substituting a conviction for manslaughter for which we imposed a sentence of four years' imprisonment with hard labour. We now give our reasons for so doing.

The Crown case was that the appellant, early one morning and without any ostensible reason, struck his wife on the head with an axe inflicting injuries from which she died. The defence was that the appellant was intoxicated by having imbibed the previous evening an excessive quantity of *waragi* and, as the learned trial Judge noted in his judgment, rested on two alternative grounds, (1) that due to such intoxication the appellant was temporarily insane when he did the act charged: section 13 (2) (b) of the Penal Code, and (2) that due to his intoxication he was incapable of forming the specific intent to kill or to cause grievous harm which is necessary to prove malice aforethought: section 13 (4). It is evident from the judgment that the learned Judge misdirected himself on the rule to be applied as to onus of proof in these alternative cases. He says at page 29 of the record:—

"The question I have to decide is whether on the evidence before me the accused has discharged the onus resting upon him to prove his insanity so as $(1)$ to reduce his crime to manslaughter, or $(2)$ to entitle him to a special verdict of guilty but insane."

and again, after considering the evidence, the learned Judge says at p. $31$ —

"Taking the evidence as a whole I find that the accused has not discharged the onus that rests on him to prove that he was legally insane so as not to know what he was doing or to form the necessary intent to cause death or grievous harm. There is not sufficient evidence to show that he drank much *waragi* that night so as to render him legally insane."

It is of course correct that if the accused seeks to set up a defence of insanity by reason of intoxication, the burden of establishing that defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove. But if the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required to constitute the offence charged, it is a misdirection if the trial Court lays the onus of establishing this upon the accused. See Manyara v. Reg., 22 E. A. C. A. 502 and Festo Shirabu v. Reg., 22 E. A. C. A. 454.

The only evidence of the consumption of *waragi* was that given by the appellant himself in his statement to the police and to the committing magistrate and in his statement at the trial. In all these statements he alleged that one Chesoroi had brought him waragi the previous evening and "made my head not all right". Chesoroi, called as a Crown witness, denied having given the appellant any liquor and the appellant's other surviving wife also testified that, although Chesoroi had come the previous evening to see the appellant who was sick, she had no knowledge of the appellant having been given *waragi*. The learned trial Judge apparently accepted the evidence of Chesoroi and the surviving wife on this point, and, had his finding of fact on this issue been arrived at independently of his misdirection of himself on the onus of proof, it might well be that that misdirection would be immaterial. But it is apparent from the judgment that the learned Judge was considering the evidence relevant to the question of drunkenness against the background of the onus which he had wrongly put upon the appellant. It may also be noted that the learned Judge did not in terms consider the possibility that, since the production and sale of *waragi* are illegal in Uganda, these witnesses had a direct motive for concealing the fact, if it was a fact, that Chesoroi had supplied *waragi* to the appellant. We observe also that the learned Judge was of the opinion that the appellant loved the deceased and killed her whilst he had "a mental upset not amounting to legal insanity". In the circumstances therefore we are unable to say that had the Judge correctly directed himself that the onus rested upon the prosecution to prove beyond reasonable doubt that the appellant had formed the requisite intent when he struck the deceased, he would have reached the same conclusion.