MOSSES MICHAEL ALIAS TALL v REPUBLIC 1994 TLR 195 (CA)

MOSSES MICHAEL ALIAS TALL v REPUBLIC 1994 TLR 195 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

CRIMINAL APPEAL NO. 35 OF 1994 B

17 August, 1994

(From the conviction of the High Court of Tanzania at Mwanza, Chipeta, J) C

Flynote

Criminal Law - Murder - Malice aforethought - Whether malice aforethought may be

inferred from the amount of force used - Whether conduct may be indicative of

malice.

-Headnote

This was an appeal on conviction for murder by the High Court. The appellant had D

killed a woman he was cohabiting with and he argued that he ought not have been

convicted of murder because malice aforethought was not established.

Held:

(i) Malice aforethought may be inferred from the amount of force which

an E offender employs in inflicting fatal injury;

(ii) The conduct of the accused may be indicative of malice aforethought as

it was in this case where the appellant was persistent in beating the deceased for a

long time and prevented intervention by persons who wanted to help the deceased. F

Case Information

Appeal dismissed.

No case referred.

Butambala, for the appellant.

Lyimo, for the respondent. G

[zJDz]Judgment

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

The appellant was charged with and convicted of murder contrary to s 196 of the

Penal Code, and was sentenced to death by the High Court (Chipeta, J) sitting at H

Mwanza. He has now appealed against both conviction and sentence.

The background to the case may be set out briefly as follows: At the material time, the

appellant and the deceased were living together as husband and wife. According to

the appellant the union had lasted for a fortnight only. On the material night, the

couple I

1994 TLR p196

KISANGA JA

A had retired after a drinking session with friends; this was around 9 pm.

It would appear that during their short cohabitation the appellant disliked certain

aspects of the deceased's behaviour and had asked her to go away but she refused.

After the drinking session that night then the appellant set upon her and B assaulted

her, using bare hands, for a long time. She cried out and neighbours responded but

the appellant chased them away. The deceased died on the same day following the

attack. Her death was due to excessive internal bleeding resulting from a ruptured

spleen.

C The appellant vehemently denied assaulting the deceased. He claimed that the

deceased poisoned herself to death by drinking thiodan. The trial court rejected such

defence and, as already stated, convicted the appellant as charged.

In this appeal the appellant was represented by Mr Butambala, learned advocate

while Mr Lyimo, Principal State Attorney, was for the respondent Republic. D

In his memorandum of appeal, counsel for the appellant filed only one ground of

appeal which alleged that malice aforethought was not established. The learned

counsel elaborated on that ground at considerable length during his oral submission

before us. E

However, we could find no merit in the contention. The medical opinion which the

court accepted was that great force must have been used to cause the ruptured spleen

which led to the death of the deceased. The law is settled that malice aforethought

may be inferred from the amount of force which the offender F employed in

inflicting the fatal injury. In the instant case great force was used. That was a

circumstance from which malice could properly be inferred.

The evidence of PW1 and PW2 which the court believed was to the effect that the

appellant continued beating the deceased for a long period lasting between 9 pm G

and 1 am. The deceased was crying out but when PW1 went to plead with the

appellant to stop the beating the appellant chased him away, and when more

neighbours came there the appellant also chased them away. In our view such H

conduct was indicative of malice. To subject the deceased to persistent beating over a

long period when she continued to cry in pain, and to prevent any intervention by

persons who had come to the rescue of the suffering victim were acts which were

intended to end the life of the deceased or at least to cause her grievous harm.

The appellant did not feel sorry at all for what he had done. At some stage after

rendering the deceased helpless through the beat- I

1994 TLR p197

ing, he went to call the neighbour (PW1) and asked him to come and watch `free A

cinema'. Upon PW1 arriving there the appellant showed to him the deceased who

was lying on the bed helpless and virtually naked; she only had an underskirt on and

no underpants. The appellant then rolled bhang in a piece of paper `using B the skin

of the deceased as a pad and rolled the bhang from the vagina area up to her navel'.

The appellant showed complete disregard for human life and dignity. He turned

human suffering, a situation which he himself had created, into a scene of

entertainment. Had he not intended to kill or cause grievous harm to the deceased, he

would have felt sorry and would have enlisted the assistance of the neighbours who

called on him to take the deceased to hospital or dispensary. Instead he C turned the

neighbours away as if to say that the helpless victim should be left alone to die, which

is exactly what happened. Such conduct was clearly consistent with malice

aforethought. D

Mr Lyimo, the learned Principal State Attorney appearing for the Republic, opposed

the appeal and for the reasons as set out above we agree that the appeal is without

substance. It is accordingly dismissed in its entirety. E

1994 TLR p197

F