R. v. Matei Crim. Sass. Cas. 83-Dodoma-71; Mnzavas J.;

 R. v. Matei Crim. Sass. Cas. 83-Dodoma-71; Mnzavas J.;

One night, the accused’s cattle were stolen. He collected some friends and they went in pursuit, following the hoof marks. The search was resumed next day. At midday, they stopped and drank pombe, and then continued the search. As they approached a bush, they heard voices. They assumed that the people behind the bush were the cattle thieves, and decided to creep up on them from three different directions. There was a conflict of evidence as to whether the accused then speared the deceased without more ado, or whether he did so after the deceased had advanced on him brandishing a billhook. The accused was charged with murder c/s 196 of the Penal Code. The defences raised were accident and drunkenness.

Held: (1) “As tot eh defence that the accused attacked the deceased because he had an honest and reasonable belief that he was the cattle – thief, I tend to agree with the learned state attorney’s submission that for an honest and reasonable, but mistaken, belief to be a defence in a criminal charge under section 11 of the Penal Code the mistaken belief must be a mistake of fact and not a mistake of law. Section 11 of our penal code appears to apply the common law rules as to mistake in law summarized in Russel on Crime (11^th Edition) at page 79 – Here the learned author says: - “Mistake can be admitted as a defence provided – (i) that the state of things believed would, if true, have justified the act done; (ii) that the mistake must be reasonable; (iii) that the mistake relates to fact and not law”. In this case it would appear if the whole of the prosecution case is believed, that the accused believed that he was legally entitled to attack a thief when he inflicted the fatal blow on the deceased whom he believed to be the person who stole his cattle. This was clearly a mistake of law and therefore covered by the provisions of section 11 of the Penal Code which only embraces mistakes of fact.”(2) “If he court is to accept the evidence that the accused attacked and killed the deceased for no reason at all then the court will have to find the accused guilty of no lesser charge than that of Murder. If on the other hand the court is to believe that evidence of Matei when cross-examined, that the accused struck the fatal wound as he was about to be attacked by the deceased with such a lethal weapon as a bill-hook then the killing cannot be murder. If the deceased, in a bellicose manner, advanced towards the accused with his bill-hook in a striking position the accused was entitled in law to retaliate to ward off the imminent attack.” (3) “I cannot, without doing injustice to the accused find him guilty of the serious offence of Murder – Denning, L. J. (as he then was) had this to say in Bater vs. Bater (1950) 2 All E. R. 458 at page 459 – “In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear.” This exposition of the law as to the standard of proof in criminal cases was approved in Hornal vs. Neuberger Products (1956)3 All E. R. 970 and in Henry H. Ilanga vs. M. Manyoka (1961) E.A. 705 criminal offences in our law. It is

            Therefore necessary that for the court to find him guilty of the offence of murder the evidence must be much more clear that evidence required in support of say, a charge of causing grievous bodily harm or for that matter a charge of manslaughter.” Other case referred to were Yusito Onguti s/o Oyoo v. R. [1957] E. A. 134, Julius Masakhu (1956) E. A. C. A. 496. (4) Accused found not guilty of murder, but guilty of manslaughter c/s 195 of Penal Code.