Court name
Court of Appeal of Tanzania

Hilda Abel vs Republic () [1993] TZCA 27 (08 November 1993);

Law report citations
1993 TLR 246 (TZCA)
Media neutral citation
[1993] TZCA 27

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

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-

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

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.

A
________________