Rex v Kihigwe (Criminal Appeal No. 183 of 1948) [1948] EACA 43 (1 January 1948)

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and LLOYD-BLOOD, J. (Tanganyika)

> REX, Respondent (Original Prosecutor) v.

## KABANDE w/o KIHIGWE, Appellant (Original Accused)

# Criminal Appeal No. 183 of 1948

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

Criminal Law-Murder-Insanity-Burden of Proof-Absence of requisite examination by medical officer—Insane delusion as to existing facts— Application of question and answer IV, McNaughton Rules.

The appellant was convicted of the murder of a small boy, and sentenced to death. The trial Judge found, *inter alia*, that the appellant knew what she was doing when she killed the child, and that she tried to justify her action by saying that as the deceased had killed her children, she killed him. In fact, all the appellants children were alive and well, and the defence was that at the relevant time she did not know what she was doing and was labouring under an insane delusion. The crime was committed on 28th March and the appellant was examined by a medical officer for the first time on 12th May.

The facts appear sufficiently from the judgment below.

Held (25-10-48).—(1) That as the crime was committed on 28th March, and the appellant was first examined on 12th May, and a few occasions thereafter, by the medical officer, he was not in a position to give any evidence as to the appellant's mental condition at the time of her admission to prison, or an opinion as to her state of mind based on. observations of her during the whole period of her remand.

(2) That the learned trial Judge was right in holding that the appellant had failed to discharge the onus of establishing insanity, which is no higher than that laid on a party to prove an issue in a civil case.

(3) That as regards the defence that the appellant laboured under the delusion that her children were being killed, in applying the answer to question IV of the McNaughton Rules, there was no suggestion that the appellant was about to kill her children, and she really killed the deceased in revenge for what: she believed to be the killing of her children by the deceased.

Appeal dismissed.

Question and answer IV, McNaughton Rules as set out in Taylor's "Medical" Jurisprudence", 9th Edition, 1934, quoted and applied.

#### Appellant absent, unrepresented.

## Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—The appellant, a woman no longer young, was convicted by the High Court of Uganda of the murder of a small boy named Tarasisio, and sentenced to death. Against both conviction and sentence she now appeals to this Court. The sole question raised in the High Court and in her memorandum of appeal to this Court is whether at the time she committed the act she was insane and whether the learned trial Judge should. accordingly have returned the special verdict of "Guilty but Insane". The following facts were found by the trial Judge and with those findings we are unable to interfere $(a)$ the appellant struck Tarasisio on the head with a heavy hoe handle killing him by fracturing his skull, $(b)$ she realized what she was doing when she killed the child, $(c)$ she knew that she was killing a child and whose child it was, $(d)$ upon her arrest, almost immediately after the killing, she realized plainly enough what she had done and gave not only an explanation. but also a justification for her act to the deceased's father "Your children killed".

my children: so I've killed your children". (e) To another person she said that Tarasisio's father had killed her eldest son, and $(f)$ at her trial she appeared to understand all that was going on. At the trial Dr. Barnetson, District Medical Officer, Kigezi, swore that he examined the appellant on 12th May and on a few other occasions when he visited the prison and found no evidence of unsound mind. He saw her about three times for five or ten minutes on each occasion when she appeared to him to be a perfectly normal woman. We note; however, that the murder was alleged to have been committed on the 28th March so, if the medical officer's first examination of the appellant, in the prison where she was on remand awaiting trial, did not take place until the 12th May he was not in a position to give any evidence with regard to her mental condition at the time of her admission to the prison or an opinion as to her state of mind based upon his observations of her during the whole period she was on remand from the time she was arrested until she was brought to trial on the 28th June. Moreover he was unable to state whether she was pregnant or not. On the assumption that there are prison regulations in force in Uganda corresponding to the United Kingdom Prison Orders whereby a prisoner who is charged with a capital offence is always kept under special observation from the moment he is received into the Prison, for the purpose of enabling the medical officer to form an opinion as to his mental condition, it would appear that, in this case at least, such regulations were not fully carried out. We now quote from the judgment of the High Court: "What the defence really maintain is that the reasons advanced by the accused for her killing indicate so grave a disorder of the mind that a full grasp of the criminality of the killing was impossible or very improbable.

Now, unless this woman behaved with great cunning immediately upon her arrest and with great cunning I do not credit her, she was certainly very strangely deluded at the time of killing and was not completely sane. She has at this moment all her six children alive and well. Her eldest son Mperuka is alive and well. Her statements upon arrest if they were not a piece of acting and I cannot really believe that they were, were not the statements of a completely sane woman. This woman must I think have been hallucinated.

It seems reasonably clear moreover from her actions some days previous to the killing that she bore an unbalanced suspicion against Nyansio's family, for without previous indication of animosity she did suddenly shout accusations of witchcraft against Nyansio's wife. Now, suspicion of witchcraft springs up in the minds of perfectly same people in this country but there is usually some basis for the suspicion, a death, illness, or the like, while in this case there is no shred of evidence that this woman had suffered any misfortune in her family.

Upon this question of hallucination, delusion, or belief in non-existent persecution and injury whatever it may be called I do not consider that I have received any assistance from the doctor. The doctor examined this woman upon perhaps three occasions for not more than twenty minutes at a time. No doubt this was sufficient to establish that the woman was in most ways rational, but I very much doubt if the genuine nature of the alleged delusions could be established or disproved in that time. Without professing to complete certainty on the point I think it is probable that this woman held the belief, round about the time of killing at any rate, that her children or some of them were dead. But now arises this most difficult question. Given that this woman believed insanely in the wickedness of Nyansio's family is she to be excused if knowingly she takes her revenge by killing members of that family. I am groping in the dark to some extent here. But I have this guiding principle that it is the attitude of mind towards the actual deed that must be regarded. The crazy nature of the motive

which prompts the deed is, I think, irrelevant if the mind of the accused grasps that unlawful or wrongful killing is being done. Doubtless if an accused is so hallucinated and is living in such a world of fantasy that it can be said that the mind appreciates nothing clearly then there is no responsibility for crime. But, upon the doctor's evidence to which I must give weight, this woman is not a witless creature incapable of reason. I have pointed out that she knew that she was killing a child, and a particular child. Her flight from the scene and her throwing away of the weapon indicate a realization of wrongdoing. Therefore, though this woman has been proved as a matter of probability to have crazy beliefs I do not think that it has been shown as a matter of probability that she neither knew what she was doing nor that she failed to realize that what she was doing was wrong. The rule of law on this topic may appear harsh, but it is certain enough and I must abide by it.

Here and now I have no concern with mercy.

I therefore convict the accused of the murder of Tarasisio contrary to section 195 of the Penal Code.

In our view, the learned trial Judge was right in holding that the appellant had failed to discharge the onus (which is no higher than that laid on a party to a civil case) of establishing insanity.

With regard to the defence that the appellant had delusions that her children were being killed we refer to question and answer IV put to and answered by the Judges in McNaughten's case as set out at page 802 of Vol. 1 of Taylor's "Medical Jurisprudence", 9th (1934) Edition. Question IV. If a person under an insane delusion as to existing facts commits an offence in consequence thereof is he thereby excused?

Answer IV. The answer must of course depend upon the nature of the delusion, but, making the same assumption that we did before, namely, that helabours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusions exist were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self defence, he would be exempt from punishment". In the instant case, the appellant: never suggested that she supposed that the deceased was about to kill her children. or any of them. She really killed the deceased in revenge for what she believed. to be the killing by deceased or his brothers and sisters of her children.

The only matter which might raise a doubt as to the correctness of the conviction is the use by the trial Judge of the words "she was certainly very strangely deluded at the time of the killing and was not completely sane". These: words must, however, be read together with the words used later on in the judgment "Though this woman has been proved as a matter of probability to have: crazy beliefs I do not think that it has been shown as a matter of probability that she neither knew what she was doing nor that she failed to realize that what she was doing was wrong". We consider that the learned trial Judge came: to a correct conclusion on law and fact and we accordingly dismiss this appeal.