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8TH JULY, 1960.


3PLR/1960/29 (SC)





MYLES JOHN ABBOTT, F.J. (Read the Judgment of the Court)




PRACTISE AND PROCEDURE – APPEAL: Misdirection on medical evidence – Effect.

CRIMINAL LAW: Murder – Defence of insanity – Medical evidence of accused’s mental state – Psychiatric observation suggested by doctor – Need for adjournment by trial Judge-Duty of pro­secution and defence counsel.



Mr. J. A. Cole -for the Appellant.

Mr. E. A. Ademola, Senior Crown Counsel -for the Respondent.




ABBOTT, F.J. (Delivering the Judgment of the Court):


This appeal came before us on the 24th June, 1960, when we allowed the appeal, quashed the conviction for murder and set aside the sentence and ordered that the appel­lant be discharged. We now give our reasons for so doing.


This is, in many respects, an unsatisfactory case. The learned trial Judge, rightly in our view, was of the opinion that the defence of insanity was raised, and the evidence in support of this came from the 6th Prosecution Witness, Dr. Francis Saliba, and this is what he said on the subject of the ap­pellant’s mental condition, the appellant having been admitted into his hos­pital with a neck wound, indicating that he had tried to kill himself:


“I did not keep the accused under psychiatric observation but I reported that he required such observation.


Xxd. A weak man can inflict a severe blow and I cannot say whether the neck wound on the deceased could have been in­flicted by a weak hungry man. A weak man thrown into a sudden frenzy could have inflicted such a wound. The accused while in hospital was in a state of agitated depression. That was one reason why I thought that he should be detained for psychiatric observation. The man was so depressed that he could behave ir­rationally on the slightest provocation.


Re Xxd. I gained the impression that the accused was depressed about his health as a result of which he was so worried as to be agitated. He gave me the impression that he was fed up with life. I cannot say whether he was depressed over anything, beside his health – he was very difficult to approach as he did not care whether he was treated or not. I formed a strong doubt as to the man’s mentality but I could not give him at Epe the observation to determine his mental condition.


To the Court: In my opinion, if the accused had killed someone on the 26th May, 1959, his agitated depression could have ante­dated that event. The accused’s state of health was poor – he had the clinical signs of filariaiusis – a disease which gives intractable itching to the skin. The complaint is not dangerous to life but the patient was pre-occupied about it. The accused was mal­nourished. I had in mind that the accused was suffering from paranoia but that can only be determined from long observation, paranoia is a disease of the brain. Usually a patient suffering from paranoia is under a strong delusion of persecution so that he thinks that anything he does is right. Medically I think that paranoia creates an irresistible impulse to remove the object round which the delusion is centred – usually it is centred round one delusion and otherwise the patient appears to be normal – paranoia can be in a mild form but usually it becomes stronger and stronger -it is one of the most progressive brain diseases. I also wanted the accused under observation for hysteria – it seems to me that he suffered either from hysteria or paranoia. Hysteria is a disease of the brain. It can deprive the patient of the capacity to distinguish right from wrong – it does not necessarily have that effect.


The learned trial Judge dealt with this evidence in this way. He said:­


“The evidence on this issue is meagre. Such as it is, it may be stated as follows:- In favour of the accused is the medical evi­dence that paranoia is a disease of the brain which results in delu­sions of persecution and an irresistible impulse or incapacity to control actions having as their object the removal of the imagi­nary cause of the imaginary persecution: the medical evidence that hysteria is a disease of the brain which often though not necessarily renders the sufferer incapable of knowing right from wrong: the fact that the doctor who gave that evidence had at­tended the accused in connection with his injury to the throat and found the accused without the desire to live, unapproachable, and suffering from agitated depression, and, as a result, he the doctor was led to entertain grave doubts as to the sanity of the accused on the basis that he could well be a sufferer from paranoia or hysteria: the attempt by the accused to commit suicide after he had killed the deceased, a relative, the evidence which the ac­cused gave as to being subject to juju; and the complaints in the accused’s two statements as not only affording a motive but suggesting justification for the killing of the deceased compared with the fact that the second statement was by way of a supplementary statement of his complaints and grounds for his action, and was obviously made after the accused had been brooding over his action and wrongs. The facts that in neither statement does the accused reveal an appreciation of the enor­mity of his act or repentance for it are also significant …. The conclusion which I must reach, I think, after weighing this evidence is that the probabilities are that the accused, at the time of killing the deceased, was suffering from paranoia to some de­gree. Having regard to the medical evidence, the fact that the ac­cused at the time knew, and therefore, had the capacity to know right from wrong and what he was doing does not offset the evi­dence indicative of the existence of the disease, as apparently paranoia does not effect those capacities. Neither, I think, is the probability that the accused had grounds for regarding himself as the victim of persecution sufficient to outweigh or equate the probabilities that he was afflicted with paranoia. It seems to me probable, in the absence of evidence to the contrary, that a mind with that disease may operate in respect of a genuine grievance by exaggerating it or adding to it imaginary grievances.


“The question then arises whether I am satisfied on the balance of probabilities that at the relevant time the accused had been de­prived of any of the three capacities mentioned as a result of his paranoia. As mentioned, on the medical evidence available it ap­pears that that disease only affects the capacity of the victim to control his actions. In any case, having regard to the accused’s evidence as to his capacity to know what he was doing and his capacity to distinguish right from wrong it is improbable that he did not have those two capacities.


As to whether the accused was deprived of the capacity to control his action, that is for present purposes, of the capacity to resist an impulse or desire to kill or seriously injure the deceased, the doc­tor who gave evidence was definite that such a deprivation is a consequence of paranoia.”


We stop here for the moment to point out that the learned trial Judge clearly misdirected himself in that sentence of his judgment. As will be seen from the quotation above from the doctor’s evidence, the doctor did not voice the opinion attributed to him by the learned trial Judge. We think it impossible to say that the mistaken view taken by the Judge cannot have affected his mind in coming to his decision and it would have been necessary to allow the appeal on that ground in any case, apart from the other matters to which we refer later.


The learned trial Judge goes on:


“At the same time the probabilities appear to me, from the doc­tor’s evidence, that that consequence does not arise immediately paranoia occurs but arises with the development of the disease. There is no evidence here as to the stage at which the disease had developed with the accused. Further, the accused has not claimed that he was unable to control his actions: on the contrary he has denied that he injured the deceased. I am therefore unable to say that at the relevant time he was unable to resist the impulse or desire to injure the deceased which he obviously had. It fol­lows that the defence of insanity fails.


With the greatest respect to the learned trial Judge, we do not under­stand why, when the doctor said that in his opinion the appellant required psychiatric observation, he did not adjourn the case in order that this obser­vation could be carried out by a qualified alienist and, indeed, Counsel for the Crown, on hearing this evidence which, presumably, was also given at the preliminary investigation, should have taken steps between the conclu­sion of the proceedings before the Magistrate and the trial at the Assizes to have the accused kept under observation in that way or at the very least him­self have applied at the trial for an adjournment for this purpose. Defence Counsel also cannot escape criticism for his failure to make a similar applica­tion. It may well be that had evidence been given as to the appellant’s mental condition by an expert alienist, the verdict of the trial Court would have been one of guilty but insane, and the lack of such evidence placed this Court in extreme difficulty. We were firmly of the opinion that it would not be possi­ble, in view of such medical evidence as was available, to uphold the convic­tion of the appellant, and therefore in the absence of really expert evidence on the question of the appellant’s mental state, we had no alternative but to allow the appeal and direct that the appellant be discharged. We are not un­aware of the risks inherent in taking such a course if the appellant is a man who is liable, through disease of the brain, to become violent, but unfortu­nately the course which we felt compelled to take was the only one open to us.



I concur.



I concur.


Appeal Allowed.


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