HILDA ABEL v REPUBLIC 1993 TLR 246 (CA)

 

HILDA ABEL v REPUBLIC 1993 TLR 246 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Lubuva JJA

B CRIMINAL APPEAL NO. 119 OF 1993

8 November, 1993

(From the conviction and sentence of the High Court of Tanzania at Moshi, Mroso, J.)

Flynote

C Criminal Law - Murder - Defence of insanity - Person suffering from defective

reasoning due to delusion but capable of understanding what she was doing -

Whether defence of insanity applies - Penal Code, s 13.

D Evidence - Expert evidence - Evidence by medical expert - Whether courts are

bound by such testimony.

-Headnote

The appellant was convicted of murder and sentenced to death. At her trial, she raised

the defence E of insanity. The doctor who examined her reported that she was

insane at the time of the alleged murder as she was suffering from defective reasoning

due to delusion of thought and imperative hallucination. After analysing and

evaluating the evidence and directing himself on the cautioned statement of the

appellant in which she admitted killing the deceased and gave a detailed account of F

the incident, the Trial Judge held that though the appellant was mentally disturbed at

the time, she was sane within the meaning of s 13 of the Penal Code. The appellant

appealed.

Held: (i) Insanity within the context of section 13 of the Penal Code is a

question of fact which could be inferred from the circumstances of the case and the

conduct of the person at the material time;

G (ii) Courts are not bound to accept medical expert's evidence if there are

good reasons for not doing so;

(iii) As the law now stands in Tanzania, though the appellant may well

have been under diminished responsibility, no destruction could be made in terms of

criminal responsibility; there is need to update the law in this field.

Case Information

H Appeal dismissed.

Case referred to:

1. Agnes Doris Liundi v Republic [1980] TLR 46.

I L. Ojare, for the appellant.

Mrs. Lyimo, for the respondent.

1993 TLR p247

[zJDz]Judgment

Lubuva, J.A., read the following considered judgment of the Court: A

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

Penal Code. She was sentenced to death by the High Court (Mroso J) sitting at Moshi

and is now appealing against both conviction and sentence. Before this Court the

appellant was represented by Mr Loomu Ojare B learned Advocate and Mrs Mary

Lyimo learned Senior State Attorney appeared for the respondent Republic.

The facts are simple and are not in dispute. They may briefly be summarised as

follows: The victim of the tragic death was a three and a half year old boy, one

Bethlehem John. On the fateful day, (5 C May 1985) while the parents of the

deceased John Urio (PW2) and Advesta w/o John (PW3) were away the appellant

came with a bill-hook hidden in her clothes with which she (appellant) hacked the

deceased to death. The deceased was then in the company of his elder sisters Judica

John (PW6), D Doreen and Regina. Deceased was the youngest of them all.

Immediately after the tragic incident the appellant went to her father's house in the

neighbourhood where she cleaned and hid the bill-hook, the weapon used in the

murder. Thereafter she went to hide herself at the house of her E aunt in Kondeni

Village nearby from where she was arrested the following day. Two days after the

incident, the appellant made a cautioned statement in which she admitted having

killed the deceased in revenge against Advesta John (PW3) the deceased's mother. In

the cautioned statement the appellant gave a detailed clear account of the entire

sequence of the incident. The statement was F admitted in evidence at the trial (exh

P1).

At the trial, the appellant denied her involvement in the offence. As the main line of

defence was insanity, the appellant was committed to Isanga Institution for

examination in order to determine G whether she was mentally sound at the time of

committing the offence. Dr Ngonyani, the Specialist Psychiatrist at Isanga Institution,

Dodoma duly reported on the appellant's condition. It was the opinion of the doctor

that the appellant was insane at the time of the alleged murder. According to the

doctor the appellant was suffering from defective reasoning due to delusion of

thought and imperative H auditory hallucination. The learned Trial Judge having

analysed and evaluated the evidence and directing himself on the cautioned statement

as well as the defence of insanity raised held that though the appellant was mentally

disturbed at the time, still she was sane within the meaning of s 13 of the Penal Code.

At the I

1993 TLR p248

LUBUVA JA

A hearing of this appeal the appellant through the learned Advocate Mr Loomu

Ojare, essentially raised one ground of appeal. He complained that the learned Trial

Judge erred in law and fact in not holding that the appellant was entitled to the

defence of insanity. Mr Loomu Ojare strongly urged that B in the first place, from

the initial stages there was evidence (PF 3 at Mawenzi hospital) to show that the

appellant was mentally ill. Secondly, the Isanga Institution's psychiatrist report on her

mental condition at the material time showed that she was insane at the time the

offence is alleged to have been committed. It was his submission that the Trial Court

should have accepted the defence of C insanity. It was, the learned Advocate further

argued that at the time when the appellant committed the offence she knew what she

was doing but did not know that it was wrong. In support of this argument, the

learned Advocate relied on the provisions of s 13 of the Penal Code Chapter 16 of the

D Laws of Tanzania wherein it is provided that:

`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 E ought not to

do the act or make the omission.'

It was the learned Advocate's complaint that the learned Trial Judge did not address

himself on the aspect of insanity touching on whether the appellant knew that she

ought not to do what she was F doing. The Trial Court merely concerned itself with

the issue of whether the appellant knew what she was doing the learned Advocate

further complained. This, the learned advocate submitted was a narrow and

restrictive approach on the question of insanity because an insane person suffering

from G some hallucination may well carry out murderous acts but may not know

such acts are wrongful.

For the Respondent Republic Mrs Mary Lyimo learned Senior State Attorney

supported the conviction and urged that the appeal be dismissed. It was Mrs Lyimo's

contention that the Trial Court while accepting the Psychiatrist's report on the

mental condition of the appellant at the material time H correctly held that though

she was suffering from defective reasoning due to delusion, still she was sane and

therefore was properly convicted upon the evidence available. The learned Senior

State Attorney further submitted that the conduct of the appellant immediately

before and after the incident indicates that she knew what she was doing. For

instance, the appellant came to the scene of I murder hiding the bill-hook. Further-

1993 TLR p249

LUBUVA JA

more, Mrs Lyimo submitted that after commission of the act she returned to her

father's house A where she cleaned the bill-hook and hid it. She (appellant) then

went to hide at the house of her aunt at Kondeni from where she was arrested. Mrs

Lyimo finally argued that in the cautioned statement which was taken two days after

the incident, the appellant gives a detailed account of all that had happened giving

reasons why she had set about killing the deceased. All these Mrs Lyimo, learned B

Senior State Attorney urged was clear testimony of the fact that the appellant was

legally capable of appreciating the nature of her action at the time. The conviction

was, according to Mrs Lyimo properly founded. C

We have given due consideration to the submissions of both learned Counsel for the

appellant and respondent Republic respectively. With respect, we are unable to agree

with the submission by the learned Advocate Mr Loomu Ojare for the appellant that

the Trial Court should have upheld the D defence of insanity. The evidence as

believed and accepted by the Trial Court was such that the appellant was at the time

not insane within the context of s 13 of the Penal Code. She knew what she was

doing. This is a question of fact which could be inferred from the circumstances of the

case and the conduct of the appellant at the material time. There was ample evidence

to show that the E appellant came with a bill-hook hidden in her clothes; the

appellant's quick retreat to her father's house with the bill-hook soon after the

commission of the offence, the cleaning of the bill-hook and the subsequent hiding of

it followed by her hiding at the house of her aunt at Kondeni until the time of F her

arrest. All this goes to show that the appellant knew and understood the nature of

what she had done and the consequences of such an act. We are of the view that the

totality of evidence is such that the Trial Judge correctly concluded that the appellant

knew as well that it was wrong for her to do the act. On the point the learned Trial

Judge can hardly be faulted. Apart from the conduct of the G appellant immediately

before and after the incident there was the evidence of the cautioned statement

which was admitted at the trial (exh P1). Though at the trial there was an attempt by

the appellant to repudiate the cautioned statement, it was nevertheless properly

admitted as there was H sufficient and independent evidence to support and

corroborate it. In the statement, the appellant quite clearly states that she had killed

the deceased as a revenge against Advesta the deceased's mother (PW3) on suspicion

of witchcraft. It is therefore quite clear that on the basis of the cautioned statement in

which the appellant sets out in detail the motive behind the murder of the I

1993 TLR p250

LUBUVA JA

A deceased as well as the conduct of the appellant immediately prior and after the

incident the Trial Judge concluded that the appellant was sane at the time of the

commission of the offence. We are satisfied that the learned Judge sufficiently

analysed and addressed himself on the law and evidence relating to the defence of

insanity when he concluded by saying `all this suggests that she must have B known

that what she did was wrong'. We can find no ground for the submission by Mr

Loomu Ojare learned Advocate for the appellant that the Trial Judge did not address

himself on the aspect whether the appellant knew that she was doing wrong.

C Finally we would wish to make an observation on medical expert's evidence. This

point was touched upon by Mrs Lyimo the learned Senior State Attorney at the

hearing of this appeal. She stated that the medical expert's report is not binding on

the Court and so it's acceptability or D otherwise depends on the circumstances of

the case. In the instant case, the Trial Judge while accepting the psychiatrist's report

as to the mental condition of the appellant at the time of the incident, he came to the

conclusion that she was nevertheless sane. The difference lies in the conclusion

arrived at. On the basis of this it is imperative to restate the legal position that the

courts are not bound to accept a medical expert's evidence if there are good reasons

for not doing so. We E respectively uphold Mrs Lyimo's submission on this point.

As regards the status of the law in Tanzania in connection with diminished

responsibility and insanity, F this Court has had occasion to make some remarks on

the matter in the case of Agnes Doris Liundi v Republic (1) where we observed that

there is the need to have the law updated in this field. In this case the learned trial

Judge has come to the conclusion that though the appellant may well have been

under diminished responsibility still the law being what it is, no distinction could be

made G in terms of criminal responsibility. With respect, we are in agreement with

the views expressed by the learned Trial Judge on this point. Once again we would

draw the attention of the authorities concerned to the need to take appropriate

legislative measures to amend the law in order to conform with current needs as

intimated.

H In the result we are satisfied that the Trial Court properly analysed and evaluated

the evidence of both the Prosecution and the Defence on the issue of insanity and

came to the right conclusion. The appellant's conviction was well founded. We find

no reason to interfere. Accordingly the appeal is I dismissed in its entirety.

1993 TLR p251

A