Malakoni v Reginam (Criminal Appeal No. 156 of 1955) [1955] EACA 350 (1 January 1955)

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## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and HOLMES, J. (Kenva)

MANYARA s/o MALAKONI, Appellant (Original Accused)

REGINAM. Respondent

Criminal Appeal No. 156 of 1955

(Appeal from the decision of H. M. High Court of Tanganyika, Crawshaw, J.) Murder—Manslaughter—Burden of proof.

The appellant was found guilty of murder and sentenced to death. He admitted the killing but pleaded that his offence was only that of manslaughter because at the time concerned he was too drunk to be able to form an intent to kill or to cause grievous harm.

In his judgment the trial Judge stated: "The onus of proving inability to form intent is of course on the defence, and as learned Counsel for the Crown has pointed out the accused has not pleaded this. It is proper, however, to look at the evidence as a whole to see if an inference can be found". In a voluntary statement made soon after the crime and adopted at the trial the appellant said he was drunk at the time, and the case was one in which the appellant's unprovoked assault on the deceased was incapable of any reasonable explanation except on the hypothesis of drunkenness.

Held (7-7-55).—The quoted passage from the judgment was a misdirection. As to the first sentence, the onus of proof in murder and manslaughter cases is always upon the prosecution, whilst as to the second sentence it could not be taken as a direction that the evidence for the prosecution negatived drunkenness so that such evidence could only be found, if at all, on the defence evidence, and, in any event, having regard to the defence<br>evidence it was a misdirection upon the evidence itself.

Chan Kau v. R. referred to and followed.

Cases referred to: Chan Kau v. R., (1955) 2 W. L. R. 192; Obar s/o Nyarongo v. R., ante page 422; Festo Shirabu s/o Musungu v. R., ante page 454; R. v. Beard (1920)<br>A. C. 479; Woolmington v. D. P. P., (1935) A. C. 462.

Appeal allowed. Conviction and sentence for murder set aside. Conviction for manslaughter substituted. Accused sentenced to 12 years' imprisonment.

Appellant absent, unrepresented.

Troup for respondent.

JUDGMENT (prepared by Worley (Vice-President)).—The appellant was convicted by the High Court of Tanganyika sitting at Moshi of murder and was sentenced to death. He admitted that he unlawfully killed the deceased but pleaded that his offence was manslaughter only because at the time he was too drunk to be able to form an intent to kill or to cause grievous bodily harm. The only question that calls for consideration is whether the learned trial Judge misdirected himself on this aspect of the case and, if so, whether such misdirection has deprived the appellant of the chance of an acquittal on the charge of murder.

In his judgment the learned Judge says: "The onus of proving inability to form intent is of course on the defence, and as learned Counsel for the Crown has pointed out the accused has not pleaded this. It is proper, however, to look at the evidence as a whole to see if an inference can be found".

Prima facie, the first sentence of this passage is a plain misdirection, having. regard to the judgment of the Privy Council in *Chan Kau v. R.* (1955) 2 W. L. R. 192: and see the judgments of this Court in Obar v. R. and Festo Shirabu v. R. ante pages 422 and 454.

It is possible that what the learned Judge had in mind was that the evidence for the Crown negatived drunkenness and that accordingly, he could only find it, if at all, on the evidence of the appellant and his witness. Such a statement would have been unexceptionable, but we cannot assume that is merely what was intended especially as we have also had before us another appeal from the same learned Judge in which the same direction on onus of proving drunkenness appears. In that appeal we were able to find that the misdirection had not occasioned a failure of justice: in the instant case we must hold otherwise. In the first place, the second statement in the passage from the judgment cited above is a misdirection on the evidence. The appellant in a voluntary statement made soon after the crime and adopted at the trial did say he was drunk at the time. and he made the same answer when pleading to the charge. Indeed, in an earlier passage in the judgment the learned trial Judge says it was submitted by the defence "that the inference was that his condition was such as to make it unlikely he formed the intent".

The case was one in which the appellant's unprovoked assault on the deceased was not capable of any reasonable explanation except on the hypothesis of drunkenness, and we cannot feel assured that had the learned trial Judge not misdirected himself on law and on fact as indicated above, he would necessarily have rejected the defence submission. We must therefore allow this appeal, set aside the conviction and sentence for murder and substitute a conviction for manslaughter. We impose a sentence of $12$ years' imprisontment.