Rex v Lwevola (Criminal Appeal No. 35 of 1943) [1943] EACA 18 (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)

## PAULO LWEVOLA s/o MUPERE, Appellant (Original Accused) Criminal Appeal No. 35 of 1943

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

Criminal Law—Murder—Refusal of sexual intercourse—Provocation—Reasons for assessors' opinions—Brevity of trial judgment—Section 168 Criminal Procedure Code.

The accused was convicted of the murder of his wife who, as the accused said, refused to have sexual intercourse with him. He also said that she had abused him. It was submitted that these factors amounted to legal provocation. The trial Judge and the assessors rejected the defence of legal provocation. Each of the assessors merely said "I find accused guilty of murder". The judgment of the trial Judge was very short, consisting only of 32 words.

Held $(16-2-43)$ .—(1) That a refusal of sexual intercourse does not afford a basis for the doctrine of legal provocation.

(2) That it is often desirable for the Court of Appeal to know not only the opinions of the assessors but also the reasons for their opinions.

(3) That a judgment of the Court must contain the point or points for determination, the decision thereon and the reasons for the decision; (Section 168 Uganda Criminal Procedure Code).

The appeal was dismissed.

Appellant absent, unrepresented.

### Brown, Solicitor General (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The accused admittedly killed his wife and he did so, according to his statement to the police which was put in evidence at the trial, because she had refused him sexual intercourse. This Court has in previous cases held that a refusal of sexual intercourse does not afford a basis for the doctrine of legal provocation. Before the trial Court the accused stated that his wife abused him by calling him a poor man and saying he was like a dog, and later in his evidence he said he used the words "I will kill you as you refuse sexual intercourse". It would appear that his reason for killing her was the refusal of intercourse. The learned Judge and the assessors rejected the defence of legal provocation and we cannot say that they were wrong.

It is observed that the assessors merely said "I find accused guilty of murder". It is often desirable for the Court of Appeal to know not only the assessors' opinions but also the reasons for their opinions. With regard to the judgment we should have liked a fuller judgment and we attract the attention of the learned Judge to section 168 of the Criminal Procedure Code.

$\cdots$ The appeal is dismissed.

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