Rex v Ndeka (Criminal Appeal No. 226 of 1948) [1948] EACA 50 (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)

SHEKANGA ALIAS ROMAN s/o NDEKA, Appellant (Original Accused)

## Criminal Appeal No. 226 of 1948

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

Criminal Law-Murder-Defence of insanity-Finding of insane delusion as toexisting facts but otherwise sane—Uncontrollable impulse—Observation on. absence of proper examination by medical officer.

The appellant was convicted of the murder of a boy aged 13 years. In anextra-judicial statement made to a Magistrate three days after the commission of the crime (and to which he adhered at his trial) the appellant said that every night for a month the devil urged him to kill someone, that for a time he resisted temptation but finally yielded. He was examined by an assistant surgeon for the first time six days after the killing and then at irregular intervals while on remand. On his trial the defence was one of insanity. The trial Judge came to the conclusion that the appellant, at the time he committed the crime, was labouring under an insane delusion as to existing facts but was not otherwise insane, and therefore would have to be considered in the same situation as to responsibility as if the facts with respect to which the delusion existed were real, and applying the principles laid down in R. v. Geravazi, 9 E. A. C. A. 56, found that the partial delusion from which the appellant was suffering could not excuse him.

**Held** (1-11-48).—(1) That as the assistant surgeon's first examination of the appellant took place three days after his arrest, and the subsequent examinations at irregular intervals. thereafter the assistant surgeon was not in a position to give evidence of the appellant's mental condition at the time of his admission to prison or an opinion of his state of mind based on observations of him during the whole period of his remand.

(2) That the appellant did not appear to have been labouring under any delusion. as to existing facts at the time he killed the boy, but rather under a belief founded upon. something metaphysical as opposed to something physical.

R. v. Geravazi s/o Lutabingwa, 9 E. A. C. A, 56 distinguished.

(3) That the only construction to be placed upon the appellant's extra-judicial statement was that at the time he committed the act, whatever may have been disease of his-<br>mind, he was capable of understanding what he was doing and knew that what he did was wrong; and that at the best his defence could not amount to more than that he was acting from uncontrollable impulse, which did not excuse the homicide.

Appeal dismissed.

#### Appellant absent, unrepresented.

### Southworth, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by LLOYD-BLOOD, J.).—The appellant was convicted in: the High Court of Tanganyika of the murder of a boy about 13 years of age by decapitation. Three days after his arrest the appellant made an extra-judicial. statement to the Second Class Magistrate at Tanga in the course of which he said that he did not know the deceased boy but for a period of a month he had been. tempted every night by a devil and urged to kill someone. He successfully resisted this temptation for a time but finally succumbed and asked the devil what person he was to kill and the devil replied that he was to kill a half-grown boy by strangulation and that thereafter he was to take the body to a place where three paths.

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met and there cut off the head and bury it at a point beyond the Pingoni Sisal Estate in the direction of Pande. The appellant concluded his statement by saying that he complied with the instructions given to him by the devil in all respects and that ever since the devil had entered into him his left big toe had been trembling.

At the preliminary enquiry the appellant reserved his defence and at his trial he informed the Court that he had nothing to add to his extra-judicial statement.

The defence at the trial was one of insanity but appellant's counsel did not ask for the Assistant Surgeon Gopal Ganesh to be called, who appeared as the fifth prosecution witness at the preliminary enquiry and who gave evidence with regard to the appellant's mental state. Moreover, the learned trial Judge did not apparently see fit to call the Assistant Surgeon himself under the provisions of Section 151 of the Criminal Procedure Code, as a witness whose evidence appeared to be essential to the just decision of the case.

The learned trial Judge, however, having considered the evidence and the question of the burden of proof in such cases, came to the conclusion that nothing more had been established than that the appellant at the time he committed this terrible crime was labouring under an insane delusion as to existing facts but was not in other respects insane and that applying the principles laid down in $R$ . $v$ . Gerevazi bin Lutambingwa, 9 E. A. C. A. 56, the partial delusion from which the appellant was suffering could not excuse from the consequences of his act.

In addition to the appellant's extra-judicial statement, the evidence relied upon in support of this finding was that of the father of the deceased boy and that of a headman employed at the Pingone Sisal Estate where the appellant also worked, both of whom stated that they never noticed anything abnormal about him, and, lastly the deposition of the Assistant Surgeon Gopal Ganesh.

This deposition reads as follows:—

"I am an Assistant Surgeon stationed at the Tanga Hospital. I have visited the accused in the Tanga Prison at various intervals.

When the accused first came to the prison he was labouring under some delusions but he is settling down gradually now. I started to observe the accused on the 9th day of June, 1948.

The accused, in my opinion, is able to understand the nature of his crime but appears to have delusions and to be under the influence of someone else. The accused complained to me that he was working under someone else's advice, a devil's advice. The accused does not appear to be perfectly sane as sometimes he is moody and makes irrelevant remarks which do not refer to the matter being discussed at the time. My opinion about the accused is that he may settle down after a short period. But he is yet not free from delusions."

From this deposition it appears that the Assistant Surgeon's first examination of the appellant in the prison he was on remand awaiting trial did not take place until three days after his arrest and that the subsequent examinations took place at irregular intervals thereafter so that this medical officer was not in a position to give evidence of the appellant's mental condition at the time of his admission to prison or an opinion of his state of mind based upon his observations of him during the whole of the time when he was on remand. Moreover, in giving evidence at the preliminary enquiry the medical officer did not disclose the nature of the delusions which the appellant spoke to him about.

As we understand that there are prison regulations in force in Tanganyika requiring prisoners who are charged with a capital offence to be kept under special observation by the medical officer from the moment they are received into the prison until they are brought to trial, it seems that in this case at least such regulations were not fully complied with.

$\cdots\,$ Nevertheless, we do not consider that the Assistant Surgeon's deposition can be relied upon to support the finding of the learned trial Judge that the appellant was labouring under one insane delusion only and was not in other respects insane, for the Assistant Surgeon referred to delusions, not one delusion, and he also said that the accused did not appear to be perfectly sane as he was sometimes moody and made irrelevant remarks.

We also consider that this case may be distinguished from Rex v. Gerevazi. relied on by the learned trial Judge, as the appellant does not appear to have been labouring under any delusion as to existing facts at the time he killed the boy. but rather under a belief founded upon something metaphysical as opposed to something physical that he must kill the first young boy he came across.

There remains, however, the appellant's own extra-judicial statement which he adopted at his trial and the only construction that it is possible to place on this is that at the time he committed the act, whatever kind of disease of the mind he was then suffering from, he was capable of understanding what he was doing and knew that what he did was wrong. The fact that he himself stated that he resisted the temptation at first and his subsequent conduct in pointing out the whereabouts of the grave to others, leaves us in doubt in this question. At the best it seems to us that his defence cannot amount to more than that at the time he committed this atrocious act he was acting from uncontrollable impulse, a defence which for good reason has, so far as we know, never been accepted as excusing either in these Territories or in the United Kingdom.

For these reasons we find that the appellant was rightly convicted of murder and we dismiss the appeal.

$\mathbf{E}_{\mathbf{J}}$