Rex v Omolo (Revision Case No. 177 of 1940) [1940] EACA 42 (1 January 1940)

## CRIMINAL REVISION

#### BEFORE LUCIE-SMITH, J., AND THACKER, J.

## REX, Prosecutor

$\mathbf{v}$ .

# OGOLA OMOLO, Acused

#### Revision Case No. 177 of 1940

Criminal Procedure—Defence of lunacy—Special finding—Section 159 Criminal Procedure Code—Evidence necessary.

Accused was charged on two counts of assault causing actual bodily harm contra section 229 of the Penal Code and pleaded "It is true that I did it but I was so drunk that I was totally unable to say what I was doing". The Court prosecutor intimated that he accepted the pleas and added "The man ran amok and probably did not know what he was doing". The magistrate without hearing evidence recorded a special finding of guilty but insane, remanded the accused and reported the case to the Governor.

Held (3-12-40).—That a special finding under section 159 of the Criminal Procedure Code must be based on evidence duly recorded. Special finding set aside—case remitted for retrial.

Accused in person.

Spurling. Crown Counsel, for the Crown.

JUDGMENT.—There is no evidence on the record to justify the using of section 159, C. P. C. That section requires that it be given in evidence on the trial of an accused that he was insane so as not to be responsible for his action at the timethat the act complained of was done. In this case we have the accused pleas "It is true I did it but I was very drunk" and "I was so drunk that I was totally unable to say that I was doing etc.". This the magistrate and prosecution accepted as pleas of guilty the prosecutor adding "the man ran amok and probably did not know what he was doing". It was presumably on this admission that the magistrate then recorded his special finding under section 159. Section 12 of the P. C. lays the burden of proof in a defence of insanity on him who pleads it. See also section 105 I. E. A. (as amended) subsection 22 para. (c). Such a defence must be proved just as any other defence. We therefore set aside the special finding and order that the case be returned to the magistrate for retrial according to law. The accused is remanded in custody.