Rex v Ross (Cr. App. 205/1932.) [1932] EACA 23 (1 January 1932)

# COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Tanganyika Territory), LAW, Acting C. J. (Uganda), and THOMAS, J. (Kenva).

#### REX

#### (Respondent) (Original Prosecutor)

$\overline{1}$

### C. W. ROSS

## (Appellant) (Original Accused).

### Cr. App. 205/1932.

The Penal Code—Sections 12 and 13—Presumption of sanity— Insanity-Murder-Defence of insanity-Onus on accused to prove insanity—Direction to jury.

- $Held$ (29-12-32): On a trial for murder, where the defence is insanity, the accused person to exempt himself from criminal responsibility<br>must satisfy the jury beyond any reasonable doubt that he was<br>insane in the legal sense at the time of committing the act. - Also held that reports of trials appearing in a scientific journal were<br>properly rejected by the trial Judge.

Branigan, Acting Crown Counsel, for Attorney General.

Hogan for Appellant.

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Hogan said that accused had been convicted on 1-12-32, before Sir Jacob Barth, Chief Justice of Kenya, of murdering a Miss Keppie on or about 6th October, 1932.

The grounds of appeal were that the learned trial Judge: (1) misdirected the jury in directing them that the plea of insanity must be clearly proved beyond reasonable doubt, and in failing to direct that if they were in doubt on the matter the benefit of such doubt must be given to the accused; (2) failed to direct the jury clearly and adequately on the defence of insanity by neglecting to explain fully in relation to this case the circumstances in which such a defence could be made out, and in neglecting to indicate the relation of mental deficiency to such circumstances; $(3)$ erred in refusing to permit counsel for the defence to read reports of the cases of Rex v. Ware and Rex v. Thick: (4) wrongfully excluded evidence that statements were made by a witness, Mr. Thorpe, in relation to the killing of a hippopotamus at Lake Nakuru; (5) misdirected the jury in regard to certain facts in the life of the accused's (appellant's) father, in regard to the circumstances and characteristics of the accused, in regard to the actions of the accused immediately after the alleged crime, and in regard to the medical evidence; (6) that the comments of the learned Judge on the evidence were not justified by the evidence, were prejudicial to the accused and materially affected the verdict of the jury; (7) that the verdict is unreasonable and against the weight of evidence.

The only defence raised was that the accused was insane at the time. He submitted that although the learned trial Judge had read the "McNaughton Rules" (1 C. & K. 130, Note) to the jury he had not sufficiently interpreted those Rules in relation to the present case. He submitted that the Kenya Penal Code, sections 12 and 13, differed from the law laid down in the McNaughton Rules inasmuch as under these sections once any disease affecting the mind is proved-not necessarily in the sense of the McNaughton Rules, which are a definition of criminal irresponsibility and not of insanity—the burden shifts to the Crown. Evidence was given at the trial of events in accused's boyhood and adolescence which pointed to mental abnormality. There was an incident referred to at the trial when after a hippo had been shot accused repeatedly stabbed it with a knife, at the same time giving vent to his feelings by making unusual noises. That evidence justified the deduction that accused could not distinguish right from wrong and relieved him from criminal responsibility. Reg v. Davis, 14 Cox's Criminal Appeal Reports, 563; Rex v. Kay, 14 E. & E. Digest, p. 58.

In the True case (Rex v. Ronald True, 16 Cr. App. Reports, 164) uncontrollable impulse was raised as a defence.

Accused was on medical evidence suffering from upset of reason owing to overwork, puberty and sexual urge. This defence was not properly placed before the jury. The mere reading of the McNaughton Rules was not a proper direction to the jury-Rex v. Finch, 12 Cox's Criminal Appeal Reports at 78—nor was the defence properly put to the jury.

He then commented on those portions of the evidence which reflected on the accused's mentality.

Dr. Gordon's opinion was that accused did not know the nature or quality of his acts, nor did he know that what he was doing was wrong. That question was not properly left to the jury (Reg. v. Davis, supra).

Branigan.—Burden of proof of insanity rests on accused. Reg. v. Stokes (1848), 14 E. & E. Digest, 59. Rex v. Oliver Smith (1910), 6 Criminal Appeal Reports, 21. Rex v. re Vere (1909), 2 Criminal Appeal Reports, 19. Insanity must be clearly proved. McNaughton Rules (supra).

It is not necessary for a Judge to repeat all the arguments of the defence in his summing-up. Rex v. Abramovitch (1912), 7 Criminal Appeal Reports, 147; Reg. v. Layton (1849), 4 Cox, [149; Reg. v. Taylor (1869), 11 $Cox$ , 341.

The medical evidence for the greater part was speculative. Rex v. Holt (1922), 15 Criminal Appeal Reports, 10.

Misdirection as to the evidence to be of any avail to an appellant must be of such a nature, and the circumstances of the case must be such, that it is reasonably probable that the

jury would not have returned their verdict had there been no misdirection. Archbold's Criminal Pleading Evidence and Practice, 27th Edition, page 342.

In re Thomas Jenkins (1919), Vol. 2, Criminal Appeal<br>Reports, 247: "If a jury is directed properly, whether liability is civil or criminal, the Court will not interfere."

Hogan replied.

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JUDGMENT.—The appellant was convicted of murder in a trial before a Judge and jury on the 1st December, 1932. His defence at the trial was that he was insane at the time he committed the murder. The jury in finding him guilty of murder rejected the defence of insanity. He has appealed to this Court from the finding of the jury, and we have been asked to set aside the verdict of the jury and either to substitute therefore a verdict of guilty but insane or to order a new trial. To take the grounds of appeal seriatim: The first ground is that the learned judge misdirected the jury in directing them that the plea of insanity must be clearly proved beyond reasonable doubt, and in failing to direct that if they were in doubt on the matter the benefit of such doubt must be given to the appellant. The law on the subject of insanity as an excuse for crime is laid down in Cap. IV of the Penal Code, sections 12 and 13 reading $respectively:$

$(12)$ Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

$(13)$ A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.

It has been urged upon us by counsel for the appellant that once it is established by the defence that a prisoner is suffering from disease of the mind of whatever nature or degree the onus shifts to the Crown, who has to prove that the prisoner at the time he did the act or made the omission was through disease affecting his mind incapable of understanding what he was doing or of knowing that he ought not to have done the act or made the omission. This is not our reading of the law. Section 12, in enacting that every person is presumed to be of sound mind, must be taken to mean that every person is presumed to be sane; section 13 speaks as to what legal insanity such as $\mathcal{A}_{\mathcal{A}}^{(1)}(x)$

will afford an excuse or exemption from criminal responsibility is. The point in our minds is clear and the law is no different from the rule in McNaughton's case which, shortly stated, is that before a person can rely on a defence of insanity as an excuse or exemption from criminal responsibility it must be shown to the satisfaction of the Jury (in a case tried by a jury) that at the time of committing the act he was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. Differently expressed, the law on the subject in Kenya is the same as in England. Once the murder is proved the Crown has discharged the burden imposed upon it and the onus of proving legal insanity, where that is the defence, rests on the accused. Just as the Crown is obliged to prove its case beyond a reasonable doubt, so must an accused person, to exempt himself from criminal responsibility, satisfy the jury beyond any reasonable doubt that he was insane in the legal sense at the time of committing the act. The learned Judge, in his summing up, said: "If you find the accused killed the woman, you must be satisfied that the accused suffered from what has been described as legal insanity. If you are not so satisfied and find the fact of killing proved then you should convict the accused of murder. If you are satisfied the accused was insane at the time of committing the act and find that act also proved, then you will find that the accused killed Miss Keppie, but was insane at the time he did so." Then the learned Judge proceeded to read the Rule in McNaughton's case.

The first ground of appeal fails.

The second ground of appeal is "that the learned Judge failed to direct the jury clearly and adequately on the defence of insanity by neglecting to explain fully in relation to this case the circumstances in which such a defence could be made out, and in neglecting to indicate the relation of mental deficiency to such circumstances." Dr. Gordon was the principal medical witness for the defence and the learned Judge reviewed at length his evidence and put before the jury what Dr. Gordon's opinion was, and we can discover no reason in this ground of appeal for complaining of the summing-up.

The third ground of appeal is that the learned Judge erred in refusing to permit counsel for the defence to read reports of the case of Rex v. Ware and Rex v. Thick. These reports are contained in the Journal of Mental Science and do not purport to be reports of cases by a barrister. We consider the learned Judge acted correctly in not allowing them to be read to the jury. We go further and say that reports dealing with questions of law are for the Judge and not for the jury. There is no substance in this ground of appeal.

The fourth ground of appeal is that the learned Judge excluded evidence that statements were made by Mr. Thorpe in relation to the killing of a hippo at Lake Nakuru. Counsel for the defence has conceded that the point is a minor one. We are unable to perceive that it has any weight. The circumstances connected with the incident, and the alleged peculiar behaviour of the accused in unnecessarily plunging his knife into the dead beast, were fully before the jury and it was for them and not Mr. Thorpe to infer what indication of abnormality the incident established. Mr. Thorpe's opinion in the matter is of little moment and Mr. Thorpe himself said that at the time he thought it was nothing worth taking notice of. This ground of appeal fails.

The fifth ground of appeal is "that the learned Judge misdirected the jury in regard to certain facts of the life of the accused's (appellant's) father, in regard to the circumstances and characteristics of the accused, in regard to the actions of the accused immediately after the alleged crime and in regard to the medical evidence." At page 5 of the summing-up the learned Judge reviewed the evidence as to accused's father in such a. manner as not to be open to criticism, and Dr. Gordon's evidence after his having heard the evidence in regard to Major Ross was that he was a type of a man who might be called insane by the laity and yet not be insane, that he would not like to say more than that he suffered from mental instability of a pronounced type. According to the witness Greenslade, who served under him during the Boer War, Major Ross was a man who had no value for life whatever. That he was an abnormally cruel man is borne out by the evidence. In a hearing lasting over several days the jury must have had present to their minds the evidence bearing on the character and behaviour of Major Ross and the summing-up cannot fairly be attacked on the ground that it might have been more detailed. This criticism might be levelled at any summing-up. The circumstances and characteristics of the accused were also reviewed by the learned Judge, and we can find no ground for complaint on this head. The reference to the actions of the accused immediately after the crime in the summing-up is brief, but as to what happened at this stage nobody but the accused could tell, and the jury's attention was attracted to the statements made to Mr. Hodge and Mr. Allen by the accused. Reference was also made to his visit to his stepfather's home at Maji Mazuri, where according to the evidence based on what the accused himself said he did not quite know what he had been doing at the critical time. Here again we are of the opinion that there was not any failure on the part of the learned Judge to which a Court of Appeal should take exception. There was no misdirection as to the medical evidence; that evidence, particularly Dr. Gordon's, was put before the jury at some length and it was for the jury to weigh that evidence

and consider, with the other evidence in the case, whether the accused at the time he committed the crime was insane in the legal sense.

The sixth ground of appeal is "that the comments of the learned Judge were not justified by the evidence, were prejudicial to the accused and materially affected the verdict of the jury." Having regard to what we have said concerning the fifth ground of appeal, it suffices to say that we find no substance in the sixth ground of appeal.

The seventh and final ground of appeal is "that the verdict is unreasonable and against the weight of evidence." This ground has not been substantiated. It was for the accused to establish that he was legally insane at the time he committed the crime. By that we mean that the evidence in the case must be such as to prove affirmatively the insanity of the accused. In the case before us the accused, in a voluntary statement made to Mr. Hodge, the District Commissioner, Nakuru, in admitting that he killed Miss Keppie, said: "She was sitting next to me in the car and she grabbed at my revolver, which was in my left pocket, so I ordered her out of the car and took her fifty yards from the camp." In another statement volunteered to Mr. Allen, the Chief Officer of the Nakuru Prison, the accused said that when the car was stuck in the ditch he got out to push and Miss Stevenson drove; that they got out of the ditch and as they got towards the camp Miss Keppie tried to take the revolver from his pocket, that he then became infuriated, saw red, let go the steering-wheel of the car, which ran into a tree and stopped, that he dragged Miss Keppie from the car, took her about fifty or sixty paces away, held her with his left hand and shot her with his right. So that according to the account given by the accused, which there is no reason to doubt, and which the jury were entitled to accept as true, his reason for shooting Miss Keppie was that her actions in attempting to take his revolver from him infuriated him. In referring to the case of Rex v. Stokes (1848), Vol. 14, the English and Empire Digest at page 59 contains the following paragraph: -

" (1) Where the defence of insanity is set up, in order to warrant the jury in acquitting prisoner, it must be proved, affirmatively, that he is insane; if the fact be left in doubt and if crime charged in the indictment be proved, it is their duty to convict him."

In Rex v. Coelho 30, T. L. R. 535 (1914), it was laid down by the Court of Criminal Appeal, England, that on a trial for murder where the defence is insanity, the prisoner must be presumed to be sane and possessed of sufficient reason to be conscious of his crime unless he establishes the contrary and proves that he was suffering from such a disease of the mind as to be unconscious of the nature and quality of his act, or, if so conscious, not to be conscious of the difference between right and wrong. Before interfering with the verdict of a jury we should have to be satisfied that it was unreasonable or could not be supported having regard to the evidence, or that the judgment of the Court before whom the Appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice. Applying that principle to the present case we can find no reason for interfering with the verdict and dismiss the appeal.

Counsel for the appellant asked us at the conclusion of the appeal to make a recommendation to the Governor in favour of the appellant. The duty of reporting to the Governor is one for the presiding Judge and not the Court of Appeal (section 315, Criminal Procedure Code).