BURA AE v REPUBLIC 1994 TLR 13 (CA)

BURA AE v REPUBLIC 1994 TLR 13 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Makame JJA, Ramadhani JJA and Mnzavas JJA

CRIMINAL APPEAL NO. 129 OF 1990 D

22 October, 1991

(From the conviction of the High court of Tanzania at Arusha, Mroso, J)

Flynote

Criminal Law - Murder - Intoxication as a defence to murder - Not established where

the conduct of the accused E is inconsistent with a person intoxicated.

Criminal law - Murder - Defence of provocation - Not available where the deceased

did not utter or do the acts of provocation alleged. F

-Headnote

The Appellant was convicted of murder by the High Court of Tanzania and sentenced

to death. It was found that he had chased the deceased for some forty paces, stabbed

him twenty- six times and then dragged the body half a kilometre to a valley. That

same night he washed his blood stained shirt. G On appeal to the Court of Appeal, it

was argued that the appellant acted under provocation, and that he was so intoxicated

that he was incapable of having the necessary mens rea for murder.

Held:

(i) The conduct of the appellant during and after the assault was

inconsistent with a person H intoxicated within the meaning of the law;

(ii) Provocation was not available because the deceased did not utter or try

to carry out the threats alleged by the appellant;

(iii) The appellant had the requisite mens rea for murder.

Case Information

Appeal dismissed.

No case referred to. I

1994 TLR p14

A Loom-Ojare, for the appellant.

Mrs Lyimo, for the respondent.

[zJDz]Judgment

Makame, JA delivered the following considered judgment of the court:

B Bura Ae was condemned to death by the High Court sitting at Babati (Mroso J),

consequent upon his conviction for the murder of his brother-in-law, Qwatema

Darabe, the husband of the appellant's sister, PW1 Maria Ae. The fact of killing was

not denied, the only controversy being whether or not C the act amounted to the

offence of murder.

Mr Loom-Ojare, learned advocate, argued the appeal before us on behalf of the

appellant while Mrs Lyimo, learned State Attorney, supported the High Court

decision. Mr Loom-Ojare submitted and argued four grounds of appeal. One of them,

the third one, that there was a miscarriage of justice D because the learned judge

asked the assessors for their `views' rather than their `opinions', we did not take

seriously. It was pointed out to the learned advocate that he was splitting hairs really,

one definition of `opinion' being a `mental view'. We wish to add that Hornby and

Parnwell's An English-Reader's Dictionary gives `opinion' as one of the meanings of

`view'. We certainly do not E think there is any merit in this third ground.

In the other grounds Mr Loom-Ojare submitted that his client was so intoxicated that

he was F incapable of having the necessary mens rea for murder, that he in fact acted

under grave provocation, and lastly that the finding of murder was on the whole

against the weight of the evidence.

The deceased was married to PW1 and they had children together. The evidence was

that he would G often assault her whenever he abused himself with liquor. On such

occasions PW1 would remove herself to the homestead of the appellant and stay

there until reconciliation was effected. She had done so eight times before the fateful

occasion. On the material day PW1 had been at the appellant's place for two or three

days before the deceased arrived at about 9 in the evening when the found H PW1

and their three children eating in a house about fifteen paces from the appellant's,

and whose door faced that of the appellant's own house. According to PW1 the

deceased, who was unarmed, called the children but when the eldest one said he was

sleepy the deceased allowed them to go and sleep. Just then PW1 heard the repeated

cries of her sister-in-law, the appellant's wife, Yasinta Uo, I (who declined to testify

in

1994 TLR p15

MAKAME JA

accordance with s 130 of the Evidence Act) to the effect that Bura, that is the

appellant, had a spear. A Then PW1 heard the deceased crying out for help and

people running. The following morning PW1 and Yasinta found a pool of blood some

forty paces from PW1's house and some drag marks which they followed for about

half a kilometre before they found the deceased's dead body in a dry valley. B

As we have already said, at his trial in the High Court the appellant owned that he

had killed the deceased. He told the trial court that he had earlier that day imbibed a

liquor called `Mangure', made of millet, and then drank an orange squash bottleful of

`Moshi'. He got home at 6 pm and retired to C bed at 7 pm. When he went out to

ease himself at about 9 pm he heard the deceased announce loudly that he would set

the house on fire; indeed the deceased struck a match so as to set the appellant's house

ablaze. The appellant took his spear, chased the deceased with it, and after some D

five paces, when the deceased made to disarm the appellant, the latter stabbed the

deceased once with the spear. Then the appellant dragged the deceased's body to a

valley `because I was afraid and I knew I had done wrong. I threw the spear away

from the dead body. . . .'

Mrs Lyimo urged us to find that the appellant was not intoxicated at the material

time. She said if he E was he would not have done the things he did after the killing.

Mrs Lyimo also submitted that the appellant lied about the deceased threatening to

set the appellant's house on fire but later, in response to a question from the Bench,

Mrs Lyimo said the appellant could have been provoked by the deceased to the house

in which PW1 and her children were without first calling on the appellant. F

We are satisfied that this was a sure case of murder. We are convinced that the events

and their sequence were as told by PW1. Like the three assessors and the Trial Judge

himself, we are G satisfied that the appellant's story about the deceased wanting to

set the appellant's house on fire was a fib. PW1's testimony, believed by the trial

Court, and which we also accept as true, cannot accommodate the appellant's version

of the events that evening. On his own account, when the appellant went outside, the

deceased was calling his own children. `I heard him also say loudly that H people in

the house would all be burnt down.' If this were true PW1 would have heard the

utterance and we are also of the view that the deceased would not have been so daft

as to allow his own children to go to bed in a house so close to the one he wanted to

burn down.

We also regard the appellant's conduct during the assault and I

1994 TLR p16

A thereafter as inconsistent with a person who was intoxicated within the meaning

of the law. He gave chase for some forty paces, not for only five as he said during his

trial. He had the capacity to run that far and, after the twenty six stabs, he had the

presence of mind, ability and composure to B drag the body half a kilometre to a

valley, and know that `I had done wrong'. His blood-soiled shirt he washed the same

night until `there was no blood stains left on the shirt', and he had already left his

homestead by the time his sister and his wife went looking for the deceased. Quite

apart from his prevarication as to whether or not he was drunk that day, we have

been unable to see evidence that C would reasonably persuade us to say he was

intoxicated. We do not agree that Provocation was available because we do not

believe that the deceased uttered the threats or tried to set the house on fire. Also we

are unable to hold that the appellant was provoked by the deceased not first stopping

by D the appellant's house before going to converse with his own wife and children.

We respectfully agree with the learned Trial Judge that the appellant had the

requisite mens rea and that it was therefore murder that the appellant committed. We

are satisfied that the High Court E decision was decidedly sound and so we dismiss

the appeal entirely.

1994 TLR p16

F