Rex v Bisamuli (Criminal Appeal No. 169 of 1942) [1943] EACA 9 (1 January 1943)

# COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

### REX, Respondent (Original Prosecutor)

## DANIERI BISAMULI s/o KITE, Appellant (Original Accused) Criminal Appeal No. 169 of 1942

#### Appeal from decision of H. M. High Court of Uganda

Criminal Law—Manslaughter by negligence—Plea of guilty not unequivocal— Necessity for full explanation to accused of ingredients of offence.

The accused was a warder in charge of a small native administration prison. On the day in question, the cells were fumigated with a strong deadly poisonous gas; the prisoners having been taken out in the morning. The cells were closed and the gas turned on. The accused was instructed that nobody was to enter the cells until evening and then not until the cells had been opened to the air for an hour. At 2 p.m., after dinner, one of the prisoners complained that he was unfit for further work. The accused, forgetting about the fumigation, put or caused to be put that prisoner—the deceased—into a cell of which the window was closed pursuant to the fumigation. The accused and other prisoners then returned to work and the deceased prisoner was asphyxiated in the cell. The accused, in answer to the charge, said "It is so", and this was entered as a plea of guilty to the offence. The accused was sentenced to imprisonment with hard labour for five years.

Held $(20-1-43)$ .—(1) Before a plea of guilty to manslaughter by negligence is entered, the Court should explain to the accused the ingredients of the charge:-

(a) That he had a duty to take care.

(b) That there was a failure to discharge that duty.

(c) That death was due to his default.

(d) That his negligence went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and was deserving of punishment.

(2) In the vast majority of cases where the ordinary native is charged with manslaughter by negligence there can be but one safe way of eliciting whether the crime has been brought home to the accused and that is by deciding the issue after hearing the evidence for the Crown and the defence.

Semble.—A sentence of five years' imprisonment with hard labour was excessive upon the facts as shown in the depositions.

The plea was not an unequivocal plea of guilty and the proceedings were declared to be a nullity.

The conviction was quashed and the sentence set aside.

Appellant absent, unrepresented.

#### Stacey, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—In this unusual case of alleged manslaughter by negligence we do not know what was put to the accused and how the ingredients of the offence were explained to him. It is obvious that it must be a very difficult matter for a native to understand the ingredients of a charge of manslaughter by negligence and this would be particularly so on the facts of this case. The accused in answer to whatever was put to him said "It is so", and this answer we are quite unable to accept as an unequivocal plea of guilty. The cases Rex v. Abyasali 3 E. A. C. A. 42 and Rex v. Yokana

3 E. A. C. A. 104 are in point. Was it explained to the accused (1) that he had a duty to take care, (2) that there was a failure to discharge that duty. (3) that death was due to his default, and (4) that his negligence went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and was deserving of punishment? There is nothing on the record to show that this was done. And we go so far as to say that in the vast majority of cases where the ordinary native is charged with manslaughter by negligence there can be but one safe way of eliciting whether the crime has been brought home to the accused and that is by deciding the issue. after hearing the evidence for the Crown and the Defence. From the learned Judge's remarks in sentencing the accused it would appear that what happened may have been due to forgetfulness on the part of the accused, which is something very different from the criminal negligence referred to in the well-known case of Rex v. Bateman 19 Criminal Appeal Reports p. 8. By reason of the plea not being an unequivocal plea of guilty the proceedings are a nullity, the conviction and sentence are quashed and the accused is discharged.

If we had to deal with the question of sentence we should have reduced it very considerably, for a case of manslaughter by negligence such as this must be definitely distinguished from the kind of cases which was before this Court recently where a person unqualified in medical science went round the country giving injections for profit. Should it so happen that any further proceedings are taken against the accused no doubt the period of four months already served by him will be taken into account.