Rex v Nagugu (Criminal Appeal No. 49 of 1948) [1948] EACA 22 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), PEARSON, J. (Uganda), and AINLEY, J. (Uganda)

#### REX, Respondent (Original Prosecutor) v

# WAYAĠA NAGUGU, Appellant (Original Accused)

Criminal Appeal No. 49 of 1948

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

Criminal Law-Murder-Secret Killing-Defence of Provocation-Credibility-Reasonable possibility of provocation—How Jury should discharge duty of giving accused benefit of the doubt.

On raising an outcry the deceased was found in an open place fatally wounded. Before he expired he made a statement to the effect that the appellant stabbed him without provocation. The appellant's defence was that he stabbed the deceased at a beer party on receiving provocation by blows from him, and that the wounding was accidental and unintentional. The trial Judge accepted as true the story told by those who found the deceased, and which supported his statement, and rejected in its entirety the story of the appellant, whom he convicted of murder.

Held (29-4-48).—(1) That once it had been proved to the satisfaction of the Judge that after dark on the night in question the appellant had driven a knife into the belly of the deceased and so killed him, the Judge was entitled to find, in default of any circumstantial evidence or of any credible evidence indicating the possibility of accident, that the appellant had driven the knife into the deceased with the intention of causing death or at least grievous harm.

(2) In a case where an accused has killed in secret and has either remained silent as to what took place immediately before the killing, or has told an incredible story as to what took place, there are many matters of speculation which arise, but whilst a in reasonable possibilities and may not invent possibilities which do not arise either from direct evidence or from the circumstances of the case.

(3) Even where no story of provocation is raised by the defence, there may still be in the circumstances of the case that which raises a reasonable possibility of provocation having been offered, but to avail the accused that possibility must appear from the evidence and must be reasonable.

(4) That in giving an accused the benefit of the doubt a jury should have regard to the material before them.

Appeal dismissed.

Woolmington v. Director of Public Prosecutions, 25 C. A. R. 72 discussed and quoted; Mancini v. Director of Public Prosecutions, 28 C. A. R. 65 quoted with approval. James for the appellant.

Dreschfield, Acting Solicitor-General (Uganda) for the Crown.

JUDGMENT (delivered by AINLEY, J.).—In this case the appellant was convicted of the murder of a man named Lasina.

The evidence for the Crown was that after dark upon the 17th November, 1947, one Wazisi s/o Wanyobo, who was in bed in his house at Namwezi, heard an alarm, and upon going out found the deceased lying wounded some 100 yards from his (Wazisi's) house. He raised an outcry and men named Matiansi, Yosamu, and Wazisi s/o Wembasa came in answer. To these four men the deceased stated that he had been stabbed by Wayaga, Wayaga being the name of the appellant. The deceased further added that he had been coming to spend the night with Yosamu and that he was going to say goodbye to his parents. It would appear from the prosecution evidence that Yosamu, who was the brother of the deceased had been expecting the deceased's arrival.

Later that night, and this was not disputed, the appellant presented himself at Jinja Police Station and made a cautioned statement to a European Police Officer there, the effect of which was that the appellant had stabbed the deceased after receiving provocation by blows from the deceased at a beer party. (The question of the admissibility of this statement was not argued before us or in the Court below though it is to be noted that the charge at the time it was made was one of attempted murder only. We can see, however, no prejudice to the appellant arising from its admission.) Following the making of this statement the appellant showed a police officer where he had hidden a knife, and this knife was admittedly the knife which had pierced the deceased.

Before the committing Magistrate and before the trial Court the appellant repeated the story of an assault made upon him by the deceased at a beer party and repeated that he was the cause of a knife piercing the deceased, though he claimed that the wounding was accidental and quite unintentional.

That the deceased died as a result of a stab wound in the belly received on the night in question is undisputed. Before he died, however, he made a statement which was recorded in writing by a European police officer. The statement was to this effect that he and the appellant had met on the night in question. That though no quarrel took place the appellant had refused to greet him and had chased and stabbed him. A trivial and month-old reason for illfeeling was mentioned.

The learned trial Judge accepted as being true the story told by those who first found the deceased. He entirely rejected the story of the appellant. Not only did he disbelieve that part of the story which set up accident, but he disbelieved that the background of the affair was a beer party quarrel and he disbelieved that the stabbing took place at the house of Wazisi s/o Wanyabo or indeed at the house of any one. We think that it is quite obvious that the learned trial Judge believed that the stabbing took place while the deceased was wayfaring.

Now two main heads of appeal were argued before us. The first was this that there was no justification for rejecting the story of the appellant in the wholesale manner in which it was rejected, and further that the learned trial Judge had specifically misdirected himself when considering the facts. It was stated that the learned trial Judge had improperly relied upon the fact that the deceased was found 100 yards from a dwelling house as "negativing" the suggestion that the deceased had got his injury at a beer party in a house. No doubt the position of the deceased was inconclusive as to where he received his wound, but we do not think that the learned trial Judge regarded it as conclusive. He treated the matter merely as one of the indications of the falsity of the appellant's story. He advanced other and cogent reasons for his disbelief of that story. He attaches some weight we think to the statements of the deceased before death, and he believes the evidence of Yosamu and of the other early arrivals on the scene, including that of Wazisi s/o Wanyabo. He was perfectly entitled to accept their evidence, and having accepted it we fail to see how the learned trial Judge could have had any reasonable doubt as to the falsity of the whole story of the appellant. In short we think that the first ground of appeal argued fails. The second ground of appeal may be stated in this way. That the learned trial Judge even if he was correct in rejecting the story of the appellant, was yet supplied with such meagre evidence of the circumstances of the killing that he should have been in doubt, and indeed showed that he was in doubt, as to whether murder had been established against the appellant. At the least, it was argued, no one could be certain in this case whether the killing had not been provoked by the deceased, and it was urged that the Judge indicated that he felt that there was a genuine possibility of provocation, but regarded himself as bound in law to give no effect to that feeling.

As to the attitude of the learned Judge we agree that one or two of hisphrases are a little puzzling, but nowhere do we find an indication that he had any doubts as to the guilt of the appellant of murder. It is true that he says "It may be that if the accused had told the truth, I and the assessors might have believed him and I might have been able to hold that, at most, the offence of which the accused should be convicted is manslaughter". It is difficult to see the necessity for this phrase, for it is sufficiently obvious that if evidence had been given by the appellant or any one else which raised the reasonable possibility of provocation. or self defence no conviction for murder could have been had, but we cannot. read into this phrase the meaning that either provocation or self defence was, to the Judge's way of thinking, a reasonable possibility in the case. It is quite plain, we think, that to the Judge's mind no one including the accused had given any evidence which did raise the possibility, the reasonable possibility either of provocation or of self defence. The appellant, so we understand the Judge to. say, has not raised such a possibility, for he has chosen to invent a story of a struggle which never occurred: and it is clear that the Judge found no such. possibility raised by any other evidence in the case. We think therefore that the Judge when using this phrase was far from expressing doubts as to the guilt of the accused upon the evidence before him, but was merely expressing what is. felt by many judges in this country, that is that if an accused person will only tell the truth some help may be given to him, but that if he chooses to lie he cannot. rely on the Court's powers of invention to help him.

But it is said, assuming that the Judge felt no doubt in the matter, he should have felt a doubt, so meagre was the evidence, that the prosecution failed to establish that the appellant's killing was murder and nothing else. Bound up with this argument is the contention that the learned Judge misdirected himself in holding that an onus lay upon the appellant to establish facts showing that the killing was not murder.

These contentions deserve careful consideration. What was proved to the Judge's satsfaction? Plainly this that after dark on the night in question the appellant had driven a knife into the belly of the deceased and so killed him. What findings was the learned Judge entitled to make from that fact? Plainly. we think, he was entitled to find in default of any circumstantial evidence or of any credible direct evidence indicating the possibility of accident that the appellant had driven the knife into the deceased with the intention of causing death or at least grievous harm. In short we think that he had evidence, which a reasonable man would be entitled to rely upon, that the appellant stabbed with malice aforethought as defined by section 196 of the Penal Code. But, it may be argued, a man may have the intention of killing and yet be guiltless of murder by reason of provocation. Is there upon the facts proved here any reasonable possibility of provocation having occurred? Now in every case where an accused has killed in secret and has either remained silent as to what took place immediately before the killing, or has told an incredible story as to what took place, there are, of course, a thousand matters of speculation which arise. A thousand guesses may be made. But the trial Court though it may deal in possibilities when considering matters of defence, must deal in reasonablepossibilities, and may not invent possibilities which do not arise either from direct evidence or from the circumstances of the case. It would be wrong, we think, in the case of a secret killing for the Judge to say in effect "Let the killer prove provocation to my satisfaction or be convicted of murder". A direction such as that was held to be wrong in the well-known case of Woolmington v. Director of Public Prosecution. Even though no story of provocation has been raised by the defence there may still be in the circumstances of the case that which raises a reasonable possibility of provocation having

been offered. But that possibility to avail the accused, must appear from the evidence and it must be reasonable. Were any other view to be taken an intolerable burden would be cast upon the prosecution. Turning to the facts in this case again what shred of evidence is there of provocation? There is a cry for help. An almost immediate arrival of four helpers. There is the victim stabbed in the belly. There is proof that the appellant stabbed him. There is a lying statement by the appellant as to how he came to stab him. Upon what can the possibility of provocation be based?

It appears to us upon these facts that there was ample justification for saying as the learned trial Judge did say that murder had been proved, and that no possibility of provocation was raised by the evidence. Nor do we think that the learned Judge misdirected himself as to the onus of proof in this case. It is true that he says "As I do not believe the accused's stories it is impossible to hold that provocation has been established" thereby laying himself open to the criticism that he required some certain proof of a defence. But we think that he was not demanding certain proof of provocation. In his summing up to the assessors he shows clearly that he is alive to the onus which rests on the Crown. We think that he is merely emphasising what is perhaps sufficiently obvious and that is that no credible evidence of provocation exists in the case.

We think that nothing we have said in this judgment is in conflict with the decision of the House of Lords in Woolmington v. The Director of Public Prosecutions. That was a decision which condemned a certain direction to a jury in a murder case. The direction which was held to be wrong was this. "If the Crown satisfy you that this woman died at the prisoner's hands, then he has to show that there are circumstances to be found in the evidence which has been given from the witness box in this case which alleviate the crime, so that it is only manslaughter". The impropriety of that direction lay in the implication that the accused, to escape conviction, had to prove his defence affirmatively. The proper way in which to regard the question of proof was stated by the Lord Chancellor to be as follows: "Where evidence of death and malice has been given (this is a question for the jury), the accused is entitled to show by evidence or by examination of the circumstances adduced to the Court that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all his evidence are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted".

It seems to us that Woolmington's case decided no more, and no less, than that. As was said in the subsequent case of *Mancini v. Director of Public* Prosecutions, 28 C. A. R., page 65, by Viscount Simon: "Woolmington v. Director of Public Prosecutions is concerned with explaining and reinforcing the rule that the prosecution must prove the charge it makes beyond reasonable doubt, and consequently that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it".

The words we venture to stress here are: "on the material before the jury". It is sometimes questioned whether it is for the prosecution to negative such defences as provocation in murder cases. We think that the only answer that can be given is given in the two passages just quoted and we would only add to those passages one further quotation from Viscount Simon's judgment in *Mancini* $v$ . Director of Public Prosecutions. "The duty of the jury to give the accused the benefit of the doubt is a duty which they should discharge having regard to the material before them, for it is on the evidence, and on the evidence alone, that the prisoner is being tried, and it would only lead to confusion and possible

injustice if either Judge or jury went outside it". Returning to the case under review, the learned Judge had before him evidence which in our opinion was sufficient to support a finding that the accused killed with malice aforethought according to our definition of that term. He considered, and we think properly considered, that no evidence circumstantial or otherwise was before him upon which he as a reasonable man could find that the possibility of legal provocation existed. That being the position we consider that the conviction for murder was correct and we dismiss the appeal.