Mbeluke v. R. Crim. App. 61 of 1971. E. A. C. A. 20-7-71; Spry V. P.

Mbeluke v. R. Crim. App. 61 of 1971. E. A. C. A.  20-7-71; Spry V. P.

            The appellant was convicted of murder and sentenced to death. Before the commencement of his trial he had been remanded by the High Court at the request of the State Attorney for medical observation at the Isanga Institution under Section 168A of the Criminal Procedure Code. at his trial nothing was said of his mental condition until the end of the case for the defence, when at the request of the defence attorney, the psychiatrist’s report was put in. it stated, inter alia, that the appellant had no clear recollection of the events at the time of the alleged crime and concluded “I am of the opinion that the accused has suffered from Catatonic Excitement. This is a Schizophrenic Reaction in which the patient became acutely disturbed with destructive and aggressive behaviour ……….. I am also of the opinion that it is most likely that he committed the alleged crime while in this state of unsound mind.”

                        Held: (1) “At the beginning of his summing up the judge said to the assessors “It is your duty and yours alone to find the facts” but it is obviously that this was a slip of the tongue. Although the judge may derive great assistance from the opinions of the assessors, decisions of fact as well as law are entirely his.” (2) “Mr. Jadeja submitted that the judge ……… had virtually excluded [from the assessors] the question whether the appellant had known what he was doing …………. In seeking the opinions of the assessors he put a specific question “did he know that that he was doing ………….. in seeking the opinions of the assessors he put a specific question “did he know that what he was doing ……… in seeking the opinions of the assessors he put a specific question “did he know that what he was doing was wrong?” But did not put the other question, whether the appellant knew what he was doing ……….. We think there is some merit in this criticism. (3) “The judge appears to have put three specific questions to the assessors, instead

            of seeking their opinions generally. This is a subject with which we dealt in the case of Victory Kalinga v. R. Cr. App. No. 17 of 1971 (unreported).” (4) “Mr. King (for the Republic) submitted that the report of the psychiatrist was not admissible in evidence and that if it were excluded there was no evidence on which a finding of insanity could be based. (He submitted) that Section 168A applies were “it appears to the Court during the trial” and that this restricted the scope of the section to those cases where in the course of the proceedings, the judge, from what has taken place before him, suspects insanity. He argued that here the issue did not arise in the course of the trial and was not raised by the judge but by the State Attorney. We have no doubt that the matter arose “during the trial” because the appellant had been arraigned and had pleaded to the charge. We think also that the words “it appears to the court” apply equally whether the question I drawn to the attention of the court or is raised by the court of its own motion. We think therefore that the psychiatrist’s report was properly admitted.” (5) “If the issue (insanity) has substantially been raised by the defence we think the burden of proof must rest on the defence in the ordinary way. If the issue has been raised by the court itself, possibly against the wishes of the accused person, there can obviously be no burden of proof on the defence. In any case however, we think the standard of proof must be the same, that is, the balance of probabilities.” (6) “The evidence at the trial gives the impression of a senseless attack on one of a group of children playing together. The statements at the preliminary inquiry present a completely different picture of a man who must have been completely berserk, who caused a general, local panic and who inflicted grave injuries on three men, apart from killing the small girl, the subject of the charge. The only constant factor is that there was no grievance, no quarrel, and no provocation that caused the appellant’s behaviour. We have not the slightest doubt, on the evidence at the trial; including the psychiatrist’s report, read with the earlier statements, that the appellant was insane, legally as well as medically, at the time of the killing. We think that both the state attorney and the advocate for defence were at fault in not ensuring that the relevant facts were brought out at the trial and in those circumstances were think, with respect that this is one of those exceptional cases where the judge would have been justified in taking a rather greater part in the proceedings.” (7) “The appeal is allowed, the conviction is quashed and the sentence of death set aside and there is substituted a special finding that the appellant did the act charged but by reason of his insanity is not guilty of the offence. The appellant is to be kept in custody as a criminal lunatic, pending the order of the Minster.”