BRATTY V
ATTORNEY GENERAL FOR NORTHERN
IRELAND[1963] AC 386
FACTS
The appellant (B) was convicted of
the murder of an 18-year-old girl. In his statement to the police, he said that
he had been overcome with a “terrible feeling” and a “sort of blackness” during
the event. At trial, B relied upon the defence of automatism as a result of
psychomotor epilepsy but the trial judge dismissed this defence and did not
submit it to the jury.
ISSUES
On Appeal to the House of Lords, B
argued that the trial judge was wrong to dismiss the automatism defence. It was
argued that the burden of proof was on the Crown to prove that;
(i) the acts were conscious and voluntary
beyond reasonable doubt;
(ii) there was a body of evidence
indicating the act was not voluntary or consciously done and
(iii) this body of evidence should have been
left to the jury. The Crown submitted, inter alia, that where the defence of
automatism is based on an internal factor then the onus upon the accused is the
same as on a plea of insanity.
HELD
The trial judge was only under a
duty to leave the issue of automatism to the jury where the defence had left a
proper evidentiary foundation for doing so. The trial judge in this case was
right to not leave the defence to the jury as the only cause alleged for the
act in question was an internal factor i.e. a defect of reason from disease of
the mind. Furthermore, as B was deemed to have been sane and reasonable at the
time of the killing, he could not be said to lack intent and, therefore, there
was no question of a reduced manslaughter charge.
D.P.P. v.SHAW(1962)A.C.220
FACTS
The appellant published a 'ladies
directory' which listed contact details of prostitutes, the services they
offered and nude pictures. He would charge the prostitutes a fee for inclusion
and sell the directory for a fee. He was convicted of conspiracy to corrupt
public morals, living on the earnings of prostitution and an offence under the
Obscene Publications Act 1959. The appellant appealed on the grounds that no
such offence of conspiracy to corrupt public morals existed.
HELD
The appeal was dismissed. The House
of Lords in effect created a new crime.
Viscount Simonds:
"In the sphere of criminal law
I entertain no doubt that there remains in the Courts of Law a residual power
to enforce the supreme and fundamental purpose of the law, to conserve not only
the safety and order but also the moral welfare of the State, and that it is
their duty to guard it against attacks which may be the more insidious because
they are novel and unprepared for. That is the broad head (call it public
policy if you wish) within which the present indictment falls. It matters
little what label is given to the offending act. To one of your Lordships it
may appear an affront to public decency, to another considering that it may
succeed in its obvious intention of provoking libidinous desires, it will seem
a corruption of public morals. Yet others may deem it aptly described as the
creation of a public mischief or the undermining of moral conduct. The same act
will not in all ages be regarded in the same way. The law must be related to
the changing standards of life, not yielding to every shifting impulse of the
popular will but having regard to fundamental
assessments of human values and the
purposes of society."
Lord Reid dissenting:
"Even if there is still a
vestigial power of this kind it ought not, in my view, to be used unless there
appears to be general agreement that the offence to which it is applied ought
to be criminal if committed by an individual. Notoriously there are wide
differences of opinion today as to how far the law ought to punish immoral acts
which are not done in the face of the public. Some think that the law already
goes too far, some that it does not go far enough. Parliament is the proper
place, and I am firmly of opinion the only proper place, to settle that. When
there is sufficient support from public opinion, Parliament does not hesitate
to intervene. Where Parliament fears to tread it is not for the courts to rush
in."
KNULLER v DPP [1973] AC 435
FACTS
The defendant was the director of a
company, which published regular magazines for distribution. Inside the
magazines, there was a page that had columns to advertise homosexual practices.
It was concluded that this information encouraged males to meet up and engage
in homosexual activity. The defendant was convicted for conspiracy to corrupt
public morals.
ISSUE
The defendant appealed his
conviction for conspiracy to corrupt public morals. This was on the issue of
whether there was an offence of conspiracy to corrupt public morals recognized
by the law of England and if he could be convicted of such an offence.
HELD
The appeal was dismissed and the
conviction was upheld. The law does recognise conspiracy to corrupt public
morals as an offence, as this was created by Shaw v DPPand this was to be
followed. This case established that the courts has a duty to protect society’s
morals and can enforce their own decisions. Lord Reid commented that he did not
agree with the Shaw v DPPverdict and he had dissented in that case, but he also
did not wish to reconsider this decision now. He stated that while decisions
are not always binding on other courts, there is a need for certainty in the
law that means not every disagreeable decision should be reversed. The courts
now have no power to create new criminal offences and can only be created by
Parliament
SHERRAS V DE RUTZEN(1895)1QB918
FACTS
The defendant was convicted of
selling alcohol to a police officer whilst on duty under to s.16(2) Licensing
Act 1872. It was customary for police officers to wear an armlet whilst on duty
but this constable had removed his. The appellant therefore believed he was off
duty. The statute was silent as to the question of whether knowledge was
required for the offence. He was convicted and appealed contending that
knowledge that the officer was on duty was a requirement of the offence.
HELD
The appeal was allowed and his
conviction was quashed.
Wright J:
"There is a presumption that
mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is
an essential ingredient in every offence; but that presumption is liable to be
displaced either by the words of the statute creating the offence or by the
subject-matter with which it deals . . .It is plain that if guilty knowledge is
not necessary, no care on the part of the publican could save him from a
conviction under section 16, subsection (2), since it would be as easy for the
constable to deny that he was on duty when asked, or to produce a forged
permission from his superior officer, as to remove his armlet before entering
the public house. I am, therefore, of opinion that this conviction ought to be
quashed."
R v WINDLE[1952] 2 QB 82
FACTS
The appellant (W) was convicted of
murdering his wife. His wife had regularly spoke of committing suicide and
doctors suggested that she was certifiably insane. Upon arrest, W said to the
police: “I suppose they will hang me for this?”
ISSUE
On appeal, it was contended that W
had been suffering from a form of insanity called folie à deux which was
communicated to him by his wife as a result of his constant attendance to her,
his weak character and her dominating character. Accordingly, the plea of
guilty but insane should have been available to the jury. The key question was
whether the M’Naghten rules regarding insanity (see R v M'Naghten 8 E.R.
718)could be applied in a case of communicated insanity where the accused was
not suffering from a specific delusion. Counsel for the W suggested that that
the use of the word “wrong” as applied in McNaughten did not mean contrary to
law but morally wrong. Accordingly, if W believed that what he was doing was
beneficial, despite knowing it was illegal, then he should be excused.
HELD
The Court observed that it must not
consider whether an act is morally right or wrong but only whether it is lawful
or unlawful. The M’Naghten rules applied to all cases of insanity, whatever the
nature of insanity or disease of the mind. In the rules, the word “wrong” means
contrary to law. In the present case, W was clearly aware that what he was
doing was contrary to law. Therefore, the judge was correct to deny the plea of
insanity from the jury.
ALFRED BAZILA V R(PC)
Crim. App. 381-M-68,
30/5/68, Mustafa J.
FACTS
Accused, a
messenger employed by the Bukoba
District Council, was in charge of
prisoners held at a Primary
Court. He let
two prisoners out
of their cells
and ordered them to
wash his clothes
while he went
for a walk.
The prisoners escaped,
and accused was
charged under section
117 (1) of
the Penal Code
which applies to “any
person who aids
a prisoner in
escaping or attempting
to escape from lawful
custody ……”
HELD
“(T)he
word ‘aid’ would
import .. an
element of positive
assistance and/or an intention
of helping the
prisoners to escape.
The evidence led
only establishes that
[accused] was extremely
negligence and careless.”
Conviction quashed.
MCHELENGWAJINGI S/O MASALA V. R., Crim.
App. 279-M-68, 19/6/68,
Seaton J.
FACTS
The
four accused were
convicted of rape.
[P.C. s. 130].
There was evidence
that the accused and
the complainant had
been drinking together
and that all
of them were drunk.
At about midnight,
one of the
accused carried complainant
away. Complainant testified that
the first and
second - 142 –
(1968)H.C.D. Accused then had
intercourse with her
by force. She
stated that the
third and fourth accused
later had intercourse
with her but
that she was
too tired and
drunk by that time
to resist. Another
prosecution witness saw
the third accused
having intercourse with complainant,
and a torn
piece of her
clothing was later
found near the scene.
The first and
third accused admitted
having had intercourse
with complainant but stated
that she had
consented. The second
and fourth accused denied having
had intercourse with
her.
HELD
(1)
There was no
corroboration for complainant’s
testimony that the second
and fourth accused
had had intercourse
with her.
(2)
There may be
authority supporting a
conviction for rape
when the complainant
is too drunk
to resist. [Citing
R. v. Complain
(1845) 1 Cox
C.C. 220]. However,
in the present
case, there is no
corroboration of complainant’s
testimony that the
intercourse with the first
and third accused
was without her
consent. Neither the
torn clothing nor
the fact that she
was drunk would
necessarily negative the
fact of her
consent.
(3) The trial
magistrate also failed
to consider the
possibility that because
of their drunkenness the
accused had no
intention to commit
rape and mistakenly
believed that complainant
had consented. Convictions
quashed.
R
V. ALLY MOHAMED, Crim Rev. 8-A-68,
6/2/68, Seaton J
FACTS
Accused,
aged 7,8 and
10 years, respectively,
were convicted of
indecent assault upon
a 6-year-old boy,
put on probation
and ordered to pay compensation of Shs.
10/- each to
the complainant. The
Magistrate did not
appear to have asked
the accused to
show cause why
they should not
be convicted, or
to have cross-examined the
witnesses against the
accused, as is
provided for by the
Children and Young
Persons Ordinance [Cap.
13, ss. 9,
12]. Nor did
he direct himself
as to the
presumptions of incapacity
of children under
12 years of age
laid down in
section 15 of
the Penal Code.
HELD
“The
omission to comply
with the procedural
formalities is serious but
even more is
the failure of
the learned magistrate
to direct himself
regarding the presumed incapacity.”
Convictions quashed, sentences
set aside.
R.
V. THOMAS S/O MFAUME. Crim. Rev.
4-D-67; 6/1/67; Mustafa,
J.
FACTS
Accused, 10
years of age,
kindled a fire
to warm himself
while grazing cattle.
The fire spread and
burned the complainant
’house. Accused was
convicted of negligently
doing an act
with fire or
omitting to take
precautions against the
danger of fire, and
compensation of Shs.
2,540/- was awarded.
(P.C. s. 16)
HELD
(1)
P. C. s.
15 provides that
a person under
the age of
7 years is not
responsible for any
act or omission,
and that a
person under the
age of 12
years is not criminally
responsible unless at
the time of
the act, he
had the capacity
to know that he
should not commit
the act. The
burden is on
the prosecution to show
that the accused
had known that
he should not
kindle the fire.
(2) A father, ordered to pay compensation
for the act of his
child, must be
given the opportunity
to be heard
in opposition to
the order.
MZEE S/O SELEMANI v. R., Crim. App.
244-D-68, 21/6/68, Georges
C. J.
FACTS
Accused, a
Divisional Executive Officer,
was convicted of
wrongful confinement [P.C. s.
253] and abuse
of office [P.C.
s. 96]. Complainant
went to accused
’s house to seek
a permit to
hold an ngoma.
When accused replied
that no such permits
were available, complainant
apologized for bothering
him. At this
point accused rebuked complainant
for interrupting a
“bwana mkubwa” and
ordered a clerk to arrest complainant.
No warrant for
the arrest was
issued. Complainant was charged
with an offence
contrary to section
124 of the
Penal Code and
was released on bail
after being detained
for short period.
This charge against
complainant was later
dropped. Accused argued
that because he
was an ex
officio justice of the
peace, he was
immune from prosecution
as a judicial
officer under section 16
of the Penal
Code and section
60 of the Magistrates' Courts
HELD
(1)
The immunity of
judicial officers extends
only to those
actions taken by the
officer in the
performance of a
judicial function. [Citing
Saudi Bakari Kionywaki v.
R., Crim. App.
714-D-67, High Court
Digest, Vo, I,
case No. 443].
(2)
Although the issuance
of a warrant
of arrest has been
held to be
a judicial function [Citing
Saudi Bakari Kionywaki
v. R., supra],
the arrest of
a person without
warrant for an
offence allegedly committed
within the officer’s
view does not constitute a
judicial function. In
the first case,
the officer is
to make an
impartial evaluation of the
grounds justifying the
warrant; in the
second case he
is exercising a
function similar to
that of countless
police officers. Therefore,
there was no immunity
and the conviction
for wrongful confinement
was proper.
(3)
Penal Code section 124
provides for the
disobedience of a
lawful order, and
since no order has
been made by
accused which could
be disobeyed, the
arrest of complainant
was unlawful.
(4)
Penal Code section
96 provides that
any officer “who ….
Does or directs
to be done,
in abuse of the
authority of his
office, any arbitrary act
prejudicial to the
rights of another,
is guilty of a misdemeanor.” Accused
knew that the arrest
was wrongful, and
the arrest was
arbitrary and prejudicial
to complainant. Sentence
on first count
reduced from nine
months to three
months; appeal otherwise
dismissed.
SAUDI BAKARI KIONYWAKIN V. R.,
Crim. App. 714-D-67,
6/11/67, Biron J.
FACTS
Accused was
convicted of wrongful
confinement. [P.C. s.
253]. He was
a divisional executive
officer in charge
of self help
scheme. In his
capacity as a
justice of the peace,
he issued a
warrant for the
arrest of complainant
on a charge
of obstructing the project
contrary to Penal
Code section 89C
(1) after the
complainant had refused
to participate in
the project. Accused
accompanied a special constable who
arrested and handcuffed
the complainant. He
and the constable fled when
the complainant’s uncle
threatened them with
a spear, but
the handcuffs were
not removed for
some twenty hours.
HELD
(1)
The substantive element
of an offence
under Penal Code
section 89C(1) is dissuading
others from participating
in a self-help
scheme, and the mere
refusal to take
part does not
constitute an offence
under that section. Therefore the
arrest of complainant
was unlawful.
(2)
Section 60(1) of
the Magistrates’ Courts
Act provides that
“No….. justice shall
be liable to
be sued in any
court for any
act done or
ordered to be
done by him
in the exercise
of his functions
….. as a
justice, whether or not such
act is within
the limits of
his or the court’s
jurisdiction, if …..
he believed in
good faith that
he had jurisdiction
to do such act
or make such
order.” Although this
section applies specifically
to immunity from
civil process or
liability, a fortiori
such a person
is immune from
criminal liability for
such an act.
(3)
‘Judicial functions’ (functions
of a justice)
are defined as all acts
emanating from, and
appropriate to, the
duties of the
office of a judge,
and includes the
issuing of a
warrant of arrest.
[Citing Calder v.
Halket, 18 Eng. Rep.
293; Ratanlal and
Thakore, The Law
of Crimes, 14th
Edn., p. 148]
(4) The trial
court erred in
failing to consider
whether accused believed
in good faith that
he was acting
within his jurisdiction. The
Court stated, obiter: (1)
Section 16 of
the Penal Code,
which provides that “(A)
Judicial officer is
not criminally responsible
for anything done
….by him in the
exercise of his
judicial functions, although
the act done
is in exercise
of his judicial functions,
although the act
done is in
excess of his
judicial authority, ……” applies
not only to
persons Exercising a
regular judicial office,
but extends to
any person whose
duty it is to
adjudicate upon the
rights, or punish
the misconduct, of
any given person,
whatever form the
proceedings may take and
however informal they
may be .
The criterion is
the nature of
the act rather
than the status
of the actor.
[Citing Tozer v. Child,
119 Engl. Rep.
1286, KBD, and
Ashby v. White,
cited therein; Ratanlal
and Thakore, op. cit.,
at p. 147.]
(2) This section
apparently is much
broader than section 77
of the Indian
Penal Code, in
that it extends
not just to
judges but of all
judicial officers and
does not require
that they act
in good faith.
The court stated that
the generality of
the immunity was
“a matter for
the legislature to
concern itself with”, and
declined to rest
its decision on
this section.
SHENE KIMBOKA v. R.,
Crim. App. 157-D-67,
-/-/67, Duff J.
FACTS
The
five accused were
convicted on two
counts of robbery,
one count of
malicious damage to
property. A taxi
driver had taken
a passenger to
a certain hamlet,
where he waited
while the passenger
went to his
house for money
to pay the fare.
When the passenger
returned, a group
of persons, including
the five accused,
had gathered about
the car. They
questioned the driver
and passenger, indicating that
they suspected them of
being thieves. Dissatisfied,
they set upon the
pair; during the
struggle, the two
men were injured
and property and
money were stolen from
them. It is
not clear that
any of the
five accused stole
any of the valuables.
HELD
(1)
Clearly, the accused
participated in the
assault. Conviction entered
accordingly.
(2)
However, although the
accused “shared a
common intention to
prosecute an unlawful
purpose, namely, the
beating of so-called
thieves,” it is not
clear that they
themselves committed any
robbery directly, nor
is it clear that
“all of the
accused shared the
intention to steal.”
Absent such proof,
the conviction for
robbery must fail.
R vFLATTERY(1877) 2 QBD 410
FACTS
The defendant, John Flattery (JF)
posed as a medical doctor and surgeon. The complainant, a young woman aged 19,
consulted JF with respect to an illness she was suffering, accompanied by her
mother. JF advised that surgery was required. Under the pretence of performing
surgery, JF had sexual intercourse with the complainant. The crown brought
proceedings against JF under Statute 13 Edw. 1, c. 34, charging him with rape.
ISSUE
The issue was whether submission to
sexual intercourse amounted to consent. The complainant had submitted to JF’s
advances, but only on the belief that he was treating her for her seizures.
Submission did not amount to consent by law where that consent had been
obtained by fraud. There was no consent given to JF to have intercourse with
the complainant, only to treat her medically.
HELD
The complainant submitted to the
intercourse on a false pretence and was therefore unlawful. Mellor J. relied on
the case of R v Case 19 L. J. (Mag. C.) 174, agreeing with and quoting Wilde,
C.J. that ,
“she consented to one thing, he did
another materially different, on which she had been prevented by his fraud from
exercising her judgment and will.” (paragraph 414)
Mellor referred to the Statute 13
Edw. 1, c. 34 which defined rape to be sexual intercourse that had not been
“assented [to] before nor after”. Mellor concluded that submission may be
considered as consent, but not where consent was only given for some other
action or thing and not sexual intercourse. The appeal was dismissed and the
conviction stayed.
R v WILLIAMS [1923] 1 KB 340
The defendant was a singing coach.
He told one of his pupils that he was performing an act to open her air
passages to improve her singing. In fact he was having sexual intercourse with
her.
ISSUE
Did the pupil freely consented to
sexual intercourse ?
HELD
It was held that her consent was
vitiated by fraud as to the nature and quality of the act.
MTUNDU CHILE AND OTHERS
V. .R [1970] H.C.D 304
FACTS
The
three appellants were
convicted of burglary,
stealing and rape
and sentenced to a
total of three
years and twenty
four strokes each.
According to evidence given
by a woman
and her daughter,
the appellants broke
into their house, stole
some articles and demanded
to have sexual
intercourse with the daughter
who was in
an advanced state
of pregnancy. The
mother, fearing for the
life of her
daughter, offered herself
instead, whereupon each
of the appellants had
sexual intercourse with
her in turn.
All the appellants
set up defences of
alibi.
HELD
(1)
“The appellants were
well known to
the women who
had ample opportunity of
recognizing them. There
was no reason
to doubt the
credibility of the women
and therefore the
learned magistrate was
justified in finding
that the appellants broke
into the house,
stole therefrom and
had sexual intercourse
with the older woman.
(2)
“On the issue
whether in the
circumstances consent to sexual
intercourse was given,
“I know of
no specific case
to the point.
“The judge then set
out s. 130
of the Penal
Code where under
the accused were
charged and convicted and
then continued
(3)
“The two women
were alone in
the house, which is
apparently isolated. They
were threatened with
death by three
men armed with knives
if they tried
to raise the
alarm. Although the
mother consented, in fact
volunteered herself as a
substitute for her
daughter, such consent
is, to my mind,
vitiated by her
fears for her
daughter’s health, and
it is not
irrelevant to not that
the section above
set out expressly
states that if
the consent is
obtained ‘by fea of
bodily harm’, the
act would still
constitute rape. The
mother, apart from her
maternal affection was
under a duty
to protect her
daughter, therefore I
fully agree, with respect,
with the learned
magistrate that the
acts of the
three accused constituted rape
on the part
of each. The
conviction for rape
is therefore duly upheld.”
(4)
“The rape in
this instant case
was, considerably aggravated
by the fact that
the three accused
were prepared to
have sexual intercourse
with the daughter, which,
in her condition,
as is commonly
believed, would have
been extremely dangerous to
her health; then,
when the mother
offered herself in order
to save her daughter, they
each in turn
had inter course
with this elderly lady,
whose age is
given as about
fifty. The sentence
imposed on the
conviction for rape is
accordingly set aside,
and there is
(1970) H.C.D. -296 – substituted
therefore a sentence
of imprisonment for
two years, to run
consecutively with the
other sentences, making
an aggregate of
imprisonment to be served
of four years.
(5)
Appeal dismissed.
R.v. SALIM ABDALLA[1970]H.C.D.38.
FACTS
The
accused was charged
with indecent assault,
contrary to section
135(1) of the Penal
Code and was
instead convicted of
rape, contrary to
section 131 of the
Penal Code. Evidence
was adduced by the complainant
that while she
was asleep one night,
she was suddenly
awakened by finding
someone lying on top
of her,
and she then
believed she had
been sexually assaulted
as she found seminal
fluid on her
vagina and her
thighs.
HELD
(1)
“Rape carried a
sentence of life
imprisonment, whereas indecent assault carries
a maximum of
only fourteen years’
imprisonment. Rape is certainly
not a minor
offence to indecent
assault. Section 181
(1) of the
Criminal Procedure Code allowed
a cognate and
minor offence to
be substituted in
certain cases
The
provisions of section
185(1) of the
Criminal Procedure Code
allow a person charged with
rape to be
convicted of indecent
assault, but not
the reverse.”
(2) “Even on
the evidence adduced,
there does not
appear to have
been rape. There was
no evidence of
penetration. In the
circumstances, I substitute
a conviction for indecent
assault against the
accused, as originally
charged, and set
aside the conviction for
rape.”
MOHAMED KIBWANA V R.[1968]H.C.D.186
FACTS
Accused ’s
only possible defence
to a murder
charge was that
shortly before the killing
he heard deceased
say to someone
else that he
(deceased) had signed
a paper authorizing the
police to beat
accused.
HELD
“As
a general rule
… spoken words
alone cannot be
the basis for provocation… but
variations of (the
rule) may arise
by virtue of
the application of section
200 of the
Penal Code in
special instances among
particular communities. Where
spoken words are
accepted in customary
view as constituting
provocation, the words
must be of
so devastating a
character, of such
overbearing force, as to
shatter the self-control
of a normal
person of that community.”
Accused was convicted
of murder and
sentenced to suffer
death by hanging.
LAMECK V. R.[1972]H.C.D.207
FACTS
The accused Lameck Kiteka is charged with murdering his wife
by stabbing her with a knife in the
chest penetrating right into her heart. Both is a free and voluntary statement
to a justice of the peace and in an unsworn statement from the dock, the
accused has admitted having
stabbed his wife and so caused her
death, and from the nature and location
of the injuries inflicted, together with the
rebuttable presumption that a man
intends the natural and probable consequences of his acts, the only reasonable acceptable conclusion is that, at
the moment when he stabbed her the
accused probably intended to kill his
wife or he at least intended to cause
her grievous bodily harm.
No question of self – defence arises
in this
case but the defence has argued that at the time the accused inflicted
the fatal blow he was drunk.
The defence also brought forward a
defence of provocation. From the
evidence there can be no doubt that the
accused was under the influence of alcohol when he fatally stabbed the
deceased.
But the evidence clearly shows that the
accused was not under such intoxication
as to excuse him from criminal liability.
Coming to the defence of provocation
the defence argument is that notwithstanding that the accused killed the
deceased with malice aforethought; he did so
while acting under grave and sudden provocation, in the heat of
passion, and while deprived of his self control.
It is common ground in this case
that the marriage between the Accused and the deceased was not altogether a
very happy one. From the evidence
it can be said with some certainty that of the two deceased shared
greater blame for their domestic misunderstandings. More than two times she
left the matrimonial home and went to
live with neighbours or with
her mother. When she left the matrimonial home and went to live with her mother the accused followed
her and persuaded her to return to him.
She became violent and assaulted the accused. She was charged with assault and
was convicted and imprisoned for six
months.
Apart from the above previous
misunderstandings the only evidence of what happened, and how and why the
accused came to kill his wife, is his own long extrajudicial statement,
corroborated by his very brief unsworn statement from the dock. I may say at
once that this extra-judicial statement, has, to my mind a ring of truth and
attempts to conceal nothing.
In it the accused, after relating to the
antecedent history which I have already
referred to above, he told the justice of the peace how he experienced domestic
quarrels with the deceased, how on the fateful night he came back home at
about midnight and how he was served
with cold stiff-porridge by his wife. He related to the Justice of the Peace
that the asked the deceased to prepare fresh ugali for him as the one she had
given him was already very cold. To this request the deceased is said to have told the accused that she was not going to cook fresh ugali for him and told the accused to cook
himself or find another person to cook for him. After saying this the deceased left the house and went to one, Jackson’s house where she forced the door
open and got in. The accused followed her and, according to his extra judicial
statement, got into the house of Jackson and held the deceased by her arm and asked her to
follow him home. As he was doing so the
deceased violently pushed him and he hit his
head against the wall and was
injured. It was at this juncture that the accused pulled his knife and stabbed
the deceased once in her chest. After summing up to the assessors all of them were of the opinion that the refusal by the deceased to cook “Ugali” for the accused
could not under Nyiramba customs amount to
provocation and they found the
accused guilty of murder as charge. I tend to agree with the gentlemen
assessors that the refusal by the deceased to cook food for the accused could
not, by itself, amount to legal provocation. But in my view whether an act can
be said to constitute sufficiently grave and sudden provocation for the
purposes of section 210 and 202 of the
Penal Code should always be considered
in the light of antecedent
aggravating circumstances over a period,
if such exist, so that a culminating “last straw” may be considered as
provocation sufficiently grave, which
might not have been so considered if it has been the first act of its kind.
So here the deceased’s refusal to cook for her husband her running away
from the house to Jackson’s house and
her pushing the accused and thereby causing him to suffer injury on his
head being the last of many such
wrongful acts were in my view
sufficiently grave and sudden provocation to a wronged husband in the accused’s
walk of life to make him lose his self control and attack her. Clearly
this is not a very easy case to decide and it is with great reluctance
that I have decided to differ with the
unanimous opinion of the assessors. I however have doubts as to whether the facts warrant a conviction of murder. I at least entertain
reasonable doubt. The accused is entitled to the benefit of that doubt. I
therefore hold that the accused killed the deceased with malice aforethought
but while acting under such grave and
sudden provocation as to reduce his
offence from murder to manslaughter. I find him guilty of the lesser
offence of manslaughter c/s 195 of the Penal Code, and I accordingly convict
him. [Accused sentenced to 12 years’ imprisonment.].
Johari Ismail.R.[1974]L.R.T.23
REPUBLICv.JOHALIISMAILIHIGHCOURTCRIM.SESS.72-DSM-72,MFALILA,AG.J.
1)Provocation is a statutory defence
created under 8S.201 and 202 ofthePenalCode.
2)When provocation is raised as a
defence to the charge of murder:
a)The provocative act pleaded must
be a wrongful act or aninsuIt.
b)The provocative act must be of
such gravity as would deprive a reasonable man of his power of self-control.
c)The murder must be done in the
heat of passion.
d) The means of retaliation adopted
must be proportionate to the degree of provocation committed.
3)Making an allowance for the
"last straw' doctrine of cumulative provocation there was no wrongful act
or insult and the accused's passion had time to cool.
R.v. JUMA LEGEZA[1969]H.C.D.244
FACTS
Accused was
told his wife
was having an
adulterous association with
another man. He questioned
her after having
taken drink, slapping
her several times. When
she confessed, he
beat her with
stick, told her
to go and
followed her to her
supposed lover’s house
where he took
away her clothes
and left her naked
on the bed.
The accused later
returned and found
her dead due to
head injuries suffered
during the beating.
His attempts to
revive her with buckets
of water failed.
He reported the
matter, and confessed
his actions to the
elders subsequently the
matter, and confessed
his actions to
the elders subsequently to the Administrative Secretary.
HELD
“I
am obliged to
defence counsel for
his reference to
the case of Manyeri
s/o Mukonko v. R.,
(1954) 21 E.A.C.A
274 where it
was held that
the sudden discovery of
a wife’s adultery
even if not
by finding her
in flagrante delicto may
in Tanganyika in law be
sufficient provocation to
reduce an intentional killing
to manslaughter. I
have no doubt
that that case
reflects well established law.”
(Also citing: Russell
on Crime, p.
584;
YOVAN V. UGANDA [1970] 1 EA 405
FACTS
The appellant suspected the
deceased, his step-mother,
of having killed his children by witchcraft or poison. On his blaming her, she
replied that he would die before he could bury
his children. He
then cut her about the head
causing her death. It appeared from the statement made by him
that he armed himself intending to kill her for killing his children.
The trial judge rejected the
defence of provocation and
sentenced the appellant to death.
HELD
(i) a threat to cause the death of the accused may amount to provocation, depending on the
circumstances ( Eria Galikuwa v. R. (1)
considered);
(ii) provocation must
be judged by the standard of an ordinary
person of the community to which
the accused belongs ( Chacha s/o Wamburu v. R . (2) followed);
(iii)the heat of passion required by s. 188 refers not only to a state
of anger but
to any emotional state caused
by the provocation and which is such as to deprive
an ordinary person of self-control;
(iv)the judge’s finding that there was no
legal provocation was correct on the facts.
Appeal dismissed.
JUMA MASUDI V. R .[1968]H.C.D109
FACTS
Accused, posing
as a police
officer, induced complainant
to place Shs.
360/- in his custody
by saying that
it was the
subject of a
police investigation. Accused then
disappeared. He was
subsequently convicted, inter
alia, of obtaining
money by false pretences.
[P. C. s.
302].
HELD
“It
is clear that
the complainant had
no intention of
parting with his money
(permanently) ….(Q)uite clearly
these facts support
a charge of
theft and not of
obtaining by false
pretences.” Conviction under
P.C. s. 265
substituted.
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