Rex v Kachinga (Criminal Appeal No. 40 of 1946) [1946] EACA 33 (1 January 1946)

## 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) v

## KACHINGA, Appellant (Original Accused) Criminal Appeal No. 40 of 1946

(Appeal from decision of H. M. High Court of Nyasaland)

Criminal Law-Murder-Insanity-Burden of proof.

The appellant without reason or motive killed his mother. He had never before been known to be violent or peculiar in his behaviour and at his trial for murder two doctors who had had him under observation gave evidence. They differed in their opinions one being unable to find any signs of mental disturbance except "weak-mindedness" and the other being positive that the appellant<br>had a mild condition of schizophrenia. The learned trial Judge held that the appellant had not proved beyond any reasonable doubt that he was insane and convicted him of murder.

The appellant appealed.

Held (6-5-46).—The burden of proof resting upon an accused to prove insanity is not as heavy as the burden of proof resting upon the prosecution to prove its case beyond reasonable doubt. It is, generally speaking, sufficient if he produces such a preponderance of evidence<br>as to show that the conclusion that he was insane at the time of the offence is substantially the most probable of the possible views of the facts.

Appeal allowed. A finding of guilty but insane substituted.

Cases referred to: Sodeman v. Rex 1936 A. E. L. R. 1138; Clark v. The King (Canadian Reports Vol. 61 No. 4 p. 608); Rex v. Nurmohamed Kanji 4 E. A. C. A. 34.

## Appellant absent, unrepresented.

Dreschfield, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).-In this case the appellant was found guilty of the murder of his mother, Kusekani, and from that conviction he appeals to this Court. There is no dispute about the facts of the killing; they are proved and admitted. Indeed the appellant at his trial when formally charged with the murder, said "I admit it".

The facts are that the appellant killed his mother by striking two blows on her head, the one with an axe and the other with a hoe handle. The appellant is about thirty years of age. He had never had any quarrel with his mother. He was not drunk at the time. There is no suggestion whatever of any motive for the killing. It was apparently an isolated act with no preliminary words. The appellant had never before been known to be violent or peculiar in his behaviour. When asked at the time why he had killed his mother, he replied that he had killed without reason.

The only defence at the trial was that the appellant was insane at the time he killed his mother. He made a statement from the dock expressing sorrow that he had killed his mother but stating that he did not remember having done so.

The appellant's advocate called no witnesses for the defence but the prosecution called two doctors who had had the appellant under observation as to his mental condition. The appellant's father and his wife, and other relations were also called for the prosecution.

The two doctors differed in their opinions. Dr. Schwartz could find on the several occasions he saw the appellant no signs of mental disturbance or deficiency

but only "weak-mindedness". Dr. Mayne on the other hand found from his observation quite positively that the appellant had a mild condition of schizophrenia which could make him incapable of knowing that he ought not to kill a person and could make him suddenly violent and subject to delusions and hallucinations. The history of normality and non-violence given by the appellant's relations was put to Dr. Mayne, who expressed the opinion that it was not inconsistent with the appellant having the mental condition he described. In particular Dr. Mayne said that Kayera's evidence as to the appellant's habit at times of sitting quiet with his head hanging down was consistent with the mental condition he had described.

The three native assessors agreed with the views of Dr. Mayne and gave their reasons based on the evidence they had heard and on the appearance of the appellant.

The learned Chief Justice disagreed with the assessors and expressed his views as follows: $-$

"I am of opinion that the accused has not discharged the *onus* which is put upon him by law. He has not convinced me that he is suffering from such a disease of the mind that at the material time he was incapable of understanding what he was doing or of knowing that he ought not to have done it."

In accordance with that view the learned Chief Justice found the accused guilty and rejected the plea of insanity.

It seems clear that the learned Chief Justice in coming to his decision on the question of insanity must have rejected the expert evidence of Dr. Mayne as to the diseased mental condition of the appellant but he does not expressly say why he did so. Against the evidence of Dr. Mayne there was of course the evidence of Dr. Schwartz who found the appellant on the occasions he visited him apparently normal and only weak-minded. But that evidence is not necessarily directly contradictory of, nor is it necessarily inconsistent with, that of Dr. Mayne who, on the occasions when he had the appellant under observation positively found evidence of schizophrenia, but made it clear that the finding was not inconsistent with the appellant at other times appearing and behaving as a person of normal mentality.

It may be that the appellant at his trial did not prove beyond any reasonable doubt that he was insane at the time he killed his mother, but it is well established (Sodeman v. Rex 1936 A. E. L. R. 1138) that the burden of proof upon an accused person on the question of insanity is not as rigorous as that. The Privy Council in Sodeman's case approved the decision in the Canadian case of Clark v. The King (Canadian Reports Vol. 61 No. 4 p. 608) where the necessary standard of proof is described as follows: -

"It is, generally speaking, sufficient if he has produced such a preponderance of evidence as to show that the conclusion he seeks to establish is substantially the most probable of the possible views of the facts."

That standard of proof was expressly approved by this Court in the case of Rex v. Nurmohamed Kanji (4 E. A. C. A. 34).

In our view the preponderance of evidence in the present case does show that the conclusion that the appellant was insane at the time he killed his mother is substantially the most probable of the possible views of the facts.

We therefore allow the appeal and quash the finding of guilty and substitute therefor a finding of guilty but insane and order that the case be reported for the order of the Governor—the appellant to be kept in custody as a criminal lunatic in such place and in such manner as the Court below shall direct pending the receipt of the Governor's order.