Rex v Retief (Criminal Appeal No. 119 of 1941) [1941] EACA 71 (1 January 1941)

#### COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and Sir Henry WEBB, C. J. (Tanganyika)

#### REX, Respondent

$\mathbf{v}$ .

## D. H. RETIEF, Appellant

### Criminal Appeal No. 119 of 1941

## Appeal from decision of H. M. Supreme Court of Kenya

Criminal Law-Murder-Drunkenness as matter of defence in homicide cases-Insanity—Capacity to form intent—Direction—Misdirection.

# The facts appear sufficiently from the judgment.

Held $(15-8-41)$ .—(1) That leaving aside any question of self-defence or provocation which must be dealt with separately, where drunkenness is put forward as a defence the jury should be told.

- (i) That as a general proposition drunkenness is no excuse for crime. - (ii) That insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes no note of the cause of insanity and if actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man's intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful his act would be excusable on the ground of<br>insanity and the verdict should be "guilty of the act charged and insane when he did the act". The burden of proof of insanity is on the accused and the degree of proof required is that required of a plaintiff in a civil case. - (iii) That if insanity is not established killing by a drunken man is either murder or manslaughter. - (iv) That in order to make such killing murder the prosecution must establish an intent to cause death or grievous harm. If on the evidence and all the circumstances such intent is proved the offence is murder. If it be found that by reason of intoxication the accused was incapable of forming such intent the offence is manslaughter. The nature of the weapon used may be a circumstance proper to be taken into account when considering the question of capacity to form the intent to cause death or grievous bodily harm without which the offence would not be murder.

(2) That where no direction has been given on the matter as to whether an accused<br>was through drunkenness capable or incapable of forming an intent to cause death or grievous bodily harm finding of murder will not be upset if it appears that on a right direction the jury must inevitably have come to the same conclusion.

Appeal dismissed.

Archer for the appellant.

#### Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The otherwise very careful summing up to the jury by the learned trial Judge contained a grave misdirection and, since it clearly goes to the root of the case, Mr. Archer for the appellant has contended with great force that it is impossible to allow the conviction for murder to stand.

Three defences had to be considered at the trial. The first was that the appellant was at the time of the stabbing so intoxicated as to be insane in the legal sense of the word. The jury were, subject to an omission to which we refer later, rightly directed on this point and on the evidence they were fully justified

in rejecting this defence and could not in reason have done otherwise. The second was that of provocation. Here the direction of the learned Judge is not open to criticism. The third was that the appellant, whilst not being so drunk as to be insane at the time, was yet so intoxicated as to be incapable of forming the intent necessary to be established in order to constitute malice aforethought so as to make his offence murder. It was on this point that the jury were not properly directed. The learned Judge read the following passage from Archbold:

"Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime charged must be taken into consideration with the other facts proved in order to determine whether or not he had such intent. But evidence of drunkenness falling short of this, and merely establishing that the mind of the accused was affected by drink. so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts."

He also read section 14 (4) of the Penal Code which in effect codifies the English law as stated above. There the matter was left.

This Court deprecates reading extracts from Archbold or other text books to a jury or assessors without proceeding to explain the principles of law therein enunciated in simple language capable of being easily understood by the layman and further indicating how they may be applied to the facts of the particular case.

In the present case the jury were not told what the intention was in these absence of which the appellant would not be guilty of the offence charged nor what their finding should be if they decided that such intention had not been proved. Neither the passage from Archbold nor section 14 (4) indicate that if a person by reason of intoxication is incapable of forming the intent necessary to constitute the offence of murder the verdict should be one of manslaughter and nowhere in the summing up were they given that essential direction. At the close the jury were told that three alternatives were open to them as follows:-

"If you find that this man in drink got into a violent passion and stabbed this unfortunate Indian, then there is only one verdict and that is guilty of murder.

If you find evidence to support a plea of insanity then you can bring in a verdict of guilty but insame, but as I say, the burden of proving insamity is on the defence.

If you find he was given grave and sudden provocation and while labouring under that grave and sudden provocation he stabbed one of his assailants, then he would be guilty of manslaughter."

As regards the first we consider the direction misleading in that it fails to state that if they found him incapable through intoxication of forming an intent to kill or cause grievous bodily harm their verdict should be manslaughter and indeed rather suggests that in the opinion of the Judge, the jury had no option but to return a verdict of murder if they found that the act was committed whilst the appellant was inflamed by drink.

As regards the second it should have been added that the burden on the defence is no higher than that resting on the plaintiff in a civil suit as explained in R. v. Noor Mohamed Kanji, 4 E. A. C. A. 34, but we do not consider that omission fatal since the facts in this case are so strong that no jury could in. reason have found insanity. On this summing up we agree with Mr. Archer that the jury, when deliberating their verdict, cannot have had present to their minds the all-important fact that it was open to them, if the evidence warranted it, to bring in a verdict of manslaughter on the ground that the appellant was through intoxication incapable of forming the intent requisite to make the offence murder.

That being so, we as an appellate Court are placed in the difficult position of deciding what the jury would have found if they had been properly directed on this point. It is well established that where misdirection as to the law is established by the appellant, as it has been here, the conviction must be quashed unless the prosecution can show that on a right direction the jury would or must. inevitably have come to the same conclusion.

Mr. Spurling for the Crown whilst unable to dispute the gravity of the misdirection has argued that the jury must have come to the same conclusion and after a careful consideration of the law and the evidence we feel no doubt that he is right. It would of course have been the duty of the jury to base their finding reasonably on the proved facts. The uncontradicted evidence of the prosecution witnesses established the following. The appellant having tried to break into Mrs. Fernandes' room chased her downstairs into the billiard saloon brandishing a knife and shouting "I will kill her". He had before going upstairs had some conversation with the deceased Indian at the billiard table. One Indian took Mrs. Fernandes to à place of safety and the appellant then caught hold of two Indians. who broke away from him before he stabbed the deceased who was standing by the billiard table. The wound entered the chest and was $3\frac{1}{2}$ inches deep penetrating the heart. He then picked up a quarrel with an Indian working outside a garage abusing him for not fighting for his country. The Indian abused him in return and appellant then threatened him with a knife until Colonel Martin intervened. Colonel Martin admonished him and told him to put the knife in its sheath which he did. The Colonel found him quite amenable but very shortly afterwards found the quarrel had been resumed. The Indian had now armed himself with a piece of iron and appellant was dodging for an opening with his naked knife. He said he had again been insulted by the Indian and was not going to stand it. The Indian was slightly wounded in the arm. The Colonel took the knife from the appellant without resistance and says that he appeared to understand what was said to him and gave sensible answers. The Colonel kept the knife and saw blood on it right up to the hilt. When the appellant got back to camp he told his comrades that an Indian had invited him to a house; that on coming down he had to defend himself against Indians in a very threatening attitude; that he had stabbed one of them to the heart and that on his way back another Indian had hit him with a knobkerry and that he had stabbed that Indian in the arm. and that a Colonel had taken his knife away. The Crown contention is that in the face of that mass of uncontradicted evidence it would be impossible for a jury to find that the appellant, however drunk he may have been, was incapable of forming an intent to cause death or grievous harm. All that the defence can rely upon to suggest the contrary is the evidence that the appellant is very easily influenced by drink and that he appears to have been very drunk at the time; and his own statement that the last thing he remembers is having a double whisky at the Carlton Bar and that he knows nothing of the stabbing and the events leading up to and following it.

Upon consideration of the English case law upon which our section 14 is based we are satisfied that the jury in this case, if they had been rightly directed on that law, must on the facts before them have rejected the defence of incapacity to form the necessary intent and must have returned the verdict which they have done namely murder. The authorities are exhaustively reviewed by Lord Birkenhead in his judgment in the House of Lords in the case of R. v. Beard, 14 Cr. App. Reports at page 184. On the particular question of applying this defence to a case of stabbing he quotes, without dissenting from it, the direction of Baron Alderson in $R$ , $\nu$ , Meakins 7 C, and P. 297 that "if a man use a stick you would not infer a malicious intent so strongly against him if drunk when he made an intemperate use of it, as you would if he had used a different kind of weapon; but where a dangerous instrument is used, which, if used, would produce grievous

bodily harm, drunkenness can have no effect in the consideration of the malicious intent of the party," and observed that the learned Baron's view was that drunkenness might affect the jury's view of the intent, but that the use of a deadly weapon

, in that case showed the malicious intent so clearly that the drunkenness of the accused could not alter it. From Lord Birkenhead's judgment and the cases referred to therein it would seem that the classes of cases in which it might properly be held that drunkenness had produced an incapacity to form the intent required would be such as (1) cases of killing by the intemperate use of a stick, as envisaged by Baron Alderson in the Meakins' case, under such circumstances as to reduce the offence to manslaughter (2) similar cases where the charge is wounding with intent to cause grievous bodily harm and (3) cases in which the drunkenness might take away from the act all criminal intent as on a charge of breaking into a store with intent to steal where the evidence might show that the prisoner blundered into the store by a drunken mistake and under such circumstances as to indicate inability to form any definite purpose and especially to form the purpose of committing larceny. If so he should be acquitted; but if on the other hand, although under the influence of liquor, he was not so intoxicated as to be unable to form such purpose and knew what he was about, his partial intoxication would not so excuse him. (See Russell on Crime, 9th Ed., Vol. I, page 40). We are aware that Courts have experienced difficulty in applying section 14 so that it may be useful if we state what, on our reading of Beard's case, which is codified in the section, is the proper direction on law to be given to a jury or assessors in a case such as the present one where drunkenness is put forward as a defence. Leaving aside any question of self defence or provocation which must of course be dealt with separately if raised, they should be told.

(1) That as a general proposition drunkenness is no excuse for crime.

(2) That insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes no note of the cause of insanity and, if actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man's intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful, his act would be excusable on the ground of insanity and the verdict should be as laid down in section 159 of the Criminal Procedure Code "guilty of the act charged but insame when he did the act". The qualified nature of the burden of proof on the accused to establish insanity is as laid down in R. v. Noor Mohamed Kanji (supra).

(3) That if insanity is not established killing by a drunken man is either murder or manslaughter.

(4) That in order to make such killing murder the prosecution must establish an intent to cause death or grievous harm. If on the evidence and all the circumstances such intent is proved the offence is murder. If it be found that byreason of intoxication the accused was incapable of forming such intent the offence is manslaughter. The nature of the weapon used may, as we have indicated above, be a circumstance proper to be taken into account when considering this difficult question of capacity to form the intent to cause death or grievous bodily harm without which the offence would not be a murder.

The jury's strong recommendation to mercy is of course a matter for the consideration of His Excellency the Governor. The appeal is dismissed.