LUPUPA v THE PEOPLE (1977) Z.R. 38 (S.C.

SUPREME COURT
SILUNGWE, CJ., BARON, DC.J., AND GARDNER, J.S.
11TH JANUARY, 1977
S.C.Z. JUDGMENT NO.5 OF 1977.

Flynote

Criminal law - Evidence - Medical opinion - Weight of - Ability to challenge - No

evidence to justify rejection - Whether opinion not challenged at trial can be
challenged on appeal - Setting aside of finding of fact by trial court in teeth of
evidence.

Criminal law - Criminal responsibility - Act or omission independent of exercise of

will -Penal Code, s. 9 (1) - Whether section applies to negligent acts or omissions -
Whether defence under s. 9 is one of insanity - Onus.
Criminal procedure - Expert's reports - S.191A of Criminal Procedure Code -
Propriety of reliance on written report only when contents go to root of charge.

Headnote

The appellant was charged in the subordinate court with theft by public servant.
Before the commencement of the trial counsel for the appellant applied for an order
that he be medically examined to determine whether he was fit to plead and to
determine also what was his state of mind at the time of the commission of the
offence. A psychiatrist's report was submitted which stated the opinion that the
appellant was fit to plead, and the trial proceeded.

It was alleged that the appellant, a public servant, had on five separate occasions
stolen substantial sums of money. There was no dispute that he had physically taken
the money; his defence was that because of the influence of N he was not acting of
his own free will, which was supported by the psychiatrist's report, and that he
therefore came within s. 9 of the Penal Code. The magistrate rejected the psychiatrist's
opinion and held that the appellant was acting of his own free will; he held that s. 9
applied only where the act or omission was negligent. He also regarded the defence as
one of insanity and that the onus of establishing it was on the appellant.

Held:
(i) Medical evidence, while weighty, is only one of the factors a court should take
into account when deciding whether or not an accused person has acted of his own
free will or whether he falls within s. 9 of the Penal Code.

(ii) It is perfectly valid to challenge a medical opinion that a person was not acting
of his own free will, but it cannot be argued on appeal that evidence which has not
been challenged at the trial should not be accepted.

(iii) There being no evidence entitling the trial court to reject the medical evidence,
a finding in the teeth of such evidence must be set aside as one which could not
reasonably be entertained on the evidence.
(iv) The reference to negligence in s. 9 (1) of the Penal Code is an exception to the
circumstances in which the section applies, not prerequisite.

(v) A defence under s. 9 is not a defence of insanity (which is dealt with under s.
12) and once there is material before the court to suggest that the appellant might not
have been acting of his own free will the onus is on the prosecution to negative the
defence.

Per curiam

S.191 A of the Criminal Procedure Code was intended to obviate the necessity to call
experts to prove purely formal matters, but should not be used as a substitute for
verbal evidence when the actual content of the report goes to the very root of the
charge; in any case where the evidence is more than purely formal the expert should
be called.

Cases cited:

(1) Edwards v Bairstow, (1955) 3 All ER 48

Legislation referred to:

Penal Code, Cap. 146, ss. 9 (1), 12.

Criminal Procedure Code, Cap. 160, s. 191 A

For the appellant: C. U. Osakwe, Director of Legal Aid.

For the respondent: K. R. K Tampi, State Advocate.

Judgment

BARON, DCJ: delivered the judgment of the court.

The appellant was charged in the subordinate court with theft by public servant, there
being five counts and the total amount involved being over K14,000. Before the
commencement of the trial counsel for the appellant applied to the court for an order
that he be medically examined to determine whether he was fit to plead and to
determine also what was his state of mind at the time of the commission of the
offence. Subsequently a report was submitted to the court by the Medical
Superintendent of Chainama Hills Hospital which stated the opinion of the
psychiatrist that he was fit to plead, and the trial proceeded. We will refer in more
detail to the contents of the report later.

The allegation against the appellant, shortly, was that being a public servant he had
stolen on five separate occasions substantial sums of money, and there was no dispute
that he had in fact physically taken the money. His defence was that because of the
influence of a certain Frank Ninzi what he did was not done of his own free will, and
it was submitted that he came within section 9 of the Penal Code subsection (1) of
which reads as follows:
 "9. (1) Subject to the express provisions of this code relating to negligent acts
and omissions, a person is not criminally responsible for an act or omission which
occurs independently of the exercise of his will, or for an event which occurs by
accident."

The relevant portions of the psychiatrist's report read as follows:

"The findings are that for the material time from April to August this year the
accused was subjected to extraordinary forces of suggestibility equivalent to
hypnotism by another individual. The forces of suggestion appear to have been
skillfully and progressively applied so that in the end they prevented the free exercise
of the will of the accused."

and then again the concluding four lines of the report read:

"... as a result of extraordinary forces of suggestion imposed by another

person or persons, he developed a neurotic state which made the events of the alleged
offence occur independently of his own free will."

It is of course true that the report was originally sought and submitted in order to
assist the court in deciding whether or not the appellant was fit to plead, but, having
been submitted, it was evidence before the court and Mr. Tampi has very properly
conceded that this is so and that it has not been challenged in any way. We must
comment, as we have done before, on the practice which has become all too prevalent
of using section 191A of the Criminal Procedure Code to introduce medical reports
into evidence in circumstances in which the legislature surely did not intend it should
be used. The section was intended to obviate the necessity to call experts to prove
purely formal matters, like the fact of death in order to complete a chain of events; it
should not be used as a substitute for verbal evidence when the actual content of the
report goes to the very root of the charge, as it does in this case. Here the defence
claims that the appellant was acting otherwise than of his own free will, an that matter
has been left to be determined by the court on the evidence before it, including the
psychiatrist's report, without the court apparently considering it necessary to have the
assistance of the evidence from the witness box of that psychiatrist. It is highly
desirable in any case where the contents of the report go to the root of the charge for
the maker of the report actually to give verbal evidence so that he can be questioned
on it and explain it. Section 191A of the Criminal Procedure Code makes provision
for the witness in question to be called on the application of any party or the court,
and that course should be adopted wherever the evidence in question is more than
purely formal.

Mr. Tampi very properly submits that medical evidence, while weighty, is only one of
the factors the court should take into account when deciding whether or not an
accused person has acted of his own free will or whether he falls within section 9. He
submits that simply because a person is tricked by a confidence trickster that does not
entitle him to invoke this section and thereby escape the consequences of his act. We
accept this submission, but that is not the position here; the medical evidence before
the court goes very much further than the appellant being tricked by a confidence
trickster. The evidence here is that he was under an influence amounting to hypnotism
and that he was not acting of his own free will. It is of course perfectly valid to
challenge such an opinion, and this is precisely why we have made the foregoing
comments concerning the undesirability of a report of this kind being placed before
the court without the maker of the report giving verbal evidence; it cannot be argued
in this court that evidence which has not been challenged in the trial court should not
be accepted. There was no evidence whatever before the trial court which entitled it
simply to dismiss the medical evidence out of hand and to make a finding, namely
that the appellant knew what he was doing and that he was exercising both reason and
will when committing the crime, in the teeth of the opinions expressed by a highly
qualified psychiatrist; that finding must be set aside as one which could not
reasonably be entertained on the evidence (see Edwards v Bairstow [1]).

There were two other serious misdirections by the magistrate. He held that section 9
(1) of the Penal Code applied only where the act or omission in question was
negligent. This is a clear misdirection; the reference to negligence is an exception to
the circumstances in which the section applies, not a prerequisite. The other
misdirection was that he regarded the defence raised as being one of insanity and that
the onus was on the appellant to establish it. It is of course correct that where an
accused person raises insanity as a defence the onus is on him, but the defence in this
case was not one of insanity (which is dealt with in section 12 of the Penal Code) but
was raised specifically under section 9, and once there was material before the court
to suggest that the appellant might not have been acting of his own free will, as there
clearly was in this case, the onus is on the prosecution to negative the defence.

For all these reasons we are satisfied that this conviction cannot stand; the appeal is
allowed and the conviction and sentence are set aside.

Appeal allowed; conviction and sentence set aside