The question of the mental status of an Accused person relates only to the time of his trial, not the time of commission of the offence

Karisa Masha v Republic

Criminal Appeal no 78 of 2014

Court of Appeal at Mombasa

A Makhandia, W Ouko, & K M’inoti JJA

December 4, 2015

Reported by Phoebe Ida Ayaya

Brief facts

On the basis of the evidence adduced the High Court convicted the Appellant of murder as charged. The Court found that the Appellant did not suffer any mental illness at the time he committed the offence and that he had the requisite malice aforethought. However, the Court further noted that after the Appellant was put on his defence, his mental problems started, occasioning delay in the conclusion of the trial. Aggrieved by his conviction and sentence, the Appellant lodged the current appeal through his counsel. The Respondent opposed the appeal through Assistant Director of Public Prosecutions

Issues

i. Whether the Appellant’s mental status at the time of the commission of the offence was never made an issue at his trial

ii. Whether the Appellant was properly tried in accordance with the prescribed procedure by cutting out the roles of the Cabinet Secretary and the President under section 162(4) and directly ordering the Appellant’s detention in hospital for treatment

Criminal practice and procedure - appeal - appeal against conviction and sentence - that the trial court erred by finding the appellant guilty without considering his mental status-duty of the court to re-evaluate the evidence adduced at the trial court-whether the prosecution had proved its case to the required standards in law-whether appeal had merit-Penal Code sections 203, 204; Criminal Procedure Code section 167

Criminal practice and procedure- appeal - appeal against conviction and sentence-whether the Appellant was properly tried in accordance with the prescribed procedure by cutting out the roles of the Cabinet Secretary and the President and directly ordering the Appellant’s detention in hospital for treatment - Criminal Procedure Code section 162

Relevant Provisions of the Law

Criminal Procedure Code

Section 167

167. (1) If the accused, though not insane, cannot be made to understand the proceedings -

 (a)…;

 (b) in cases tried by the High Court, the Court shall try the case and at the close thereof shall either acquit the accused person or, if satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the President’s pleasure.

 (2) A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody.

 (3) The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit.

 (4) When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Minister a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

Held

1. The Appellant’s mental status at the time of the commission of the offence was never made an issue at his trial. While it was suggested that it was the duty of the defence to raise the defence of insanity, the Court stated that it was the duty of the trial court where the defence of insanity was raised or where it became apparent from the accused person’s history and antecedent, to inquire specifically into the question. The High Court could not ignore evidence on record suggestive of the appellant’s insanity merely because the defence had not specifically raised it. Indeed as the Court stated in the state of mind of the accused was to be gathered from the evidence in the case.
2.  Under section 11 of the Penal Code every person was presumed to be of sound mind and to have been of sound mind at any time in question unless the contrary was proved. That presumption could be rebutted by the accused person adducing evidence to show on a balance of probability that he was insane at the time of commission of the offence. There was no gainsaying that the burden to rebut the presumption lay on the Appellant.
3.  In the instant appeal, neither the defence, nor the evidence adduced by the prosecution even remotely suggested that the Appellant could have been suffering from a disease of the mind at the time he committed the offence. The little cross-examination of the prosecution witnesses by counsel for the appellant that took place did not even obliquely advert to insanity on the part of the Appellant. There was no reference to a history of mental illness or any other factor suggestive of mental incapacity. In short, there was absolutely no evidence before the Court upon which it could have been concluded that the presumption of sanity had been rebutted or dislodged.
4.  Although the Court was led to conclude from the lack of motive and the fact of the Appellant surrendering himself at Mariakani Police Station that he could have been insane, we find that on the facts of the case and the evidence that was adduced, there was no basis for concluding that the Appellant was suffering from a disease of the mind at the time of commission of the offence so that he did not know, within the meaning of the McNaughten Rules, what he was doing or if he did, that it was wrong. Moreover, under section 9(3) of the Penal Code, lack of motive of and by itself could not lead to the conclusion that we were invited to make and even where motive became an element for consideration, it was in cases resting purely on circumstantial evidence, which was not the case here.
5. The question of the mental status of the Appellant related only to the time of his trial, not the time of commission of the offence. Under the Criminal Procedure Code those were two separate and distinct issues that attracted different kinds of procedure. Having found that the Appellant did not suffer from any mental incapacity at the time of the commission of the offence, the High Court could not be faulted for concluding that from the circumstances in which the Appellant killed the deceased, malice aforethought could be inferred under section 206 of the Penal Code. In particular, taking into account the dangerous nature of the weapon that the Appellant used, the part of the body of the deceased that was targeted, the nature of the injuries that were inflicted and the degree of force used by the Appellant, the conclusion by the High Court could not be faulted.
6. The Court considered at length the different procedures that applied firstly where the accused person was legally insane when he committed the offence and secondly where the accused person, though sane when he committed the offence, was insane at the time of his trial and unable to follow the proceedings. There was a third scenario that addressed by section 167 of the Criminal Procedure Code which applied where the accused person was not legally insane at the time of the commission of the offence or at the time of his trial, but could not otherwise be made to understand the proceedings.
7.  When the High Court made the order of 2011 postponing the trial of the Appellant and committing him to Port Reitz Hospital, it was pursuant to section 162 of the Criminal Procedure Code. By invoking that provision the Court was proceeding on the basis that the Appellant was of unsound mind and incapable of making his defence. Instead of the order which it made committing the Appellant to Port Reitz Hospital, section 162 (4) obliged the Court to order the Appellant to be detained in such place and manner as it may think fit (including Port Reitz Hospital) and to transmit the Court record or certified copy thereof to the Cabinet Secretary responsible for the Kenya Prison Service for consideration by the President.
8.  Upon considering the record the President would, by order, direct the Appellant to be detained in a mental hospital or other suitable place of custody until such time as the President made a further order or until the court, upon receiving a certificate from the relevant medical officer that the Appellant was capable of making his defence and upon hearing the Director of Public Prosecutions on whether he wished to proceed against the Appellant or not, orders the Appellant to be brought before it for further proceedings.
9. The Court noted that the trial judge had acted much like the High Court in the present appeal by cutting out the roles of the Cabinet Secretary and the President under section 162(4) and directly ordering the Appellant’s detention in hospital for treatment. While the Court understood the basis of the practice of sidestepping the legal requirements involving the Cabinet Secretary and the President to be a desire to speed up the trial or conclusion of the issue of the accused person’s mental status which was otherwise delayed by the bureaucracy of the two offices, the requirements of the law in respect of which no office can claim to be too busy. The solution lay not in short-circuiting the requirements of the law; but in insisting that the concerned offices discharge their legal duties with due dispatch as expected under the Constitution and the Criminal Procedure Code.
10. The resumed trial of the Appellant was based on two letters signed by Dr. C. M. Mwangome, consultant psychiatrist dated September 23 2011 and August 1 2012. The trial court was justified in holding that notwithstanding the psychiatrist’s letters regarding his sanity; the Appellant could not understand the proceedings. The psychiatrist did not conduct any meaningful evaluation or examination of the Appellant. The information that he relied upon on both occasions, apart from his fleeting observations, was from prison officers and warders who expressed the opinion that the accused behaved normally in remand. There was absolutely no attempt to interview any members of the Appellant’s family or to establish his background, mental history and antecedents.
11. There was no justification why the psychiatrist had to rely exclusively on the opinion of prison warders when section 29 of the Prisons Act required that a medical officer, responsible for the health of prisoners, was to be stationed at or be responsible for every prison. Under rule 26 of the Prison Rules, the medical officer was, among other things, required to see every prisoner at least once every month while under rule 28 he was required to report to the officer in charge any case where he considered a prisoner to be mentally disordered. Clearly, it was the opinion of such a medical officer that the psychiatrist should have sought, rather than that of prison warders.
12. Although the psychiatrist’s two letters were written almost one year apart, they stood out for their striking similarity in format and content and the fact that the second letter did not even allude to the first, by way of follow up, since the psychiatrist was seeing the Appellant for the third time; there was another report by the same psychiatrist dated May 2011 that was exactly the same as the two reports reproduced above. In the reports, the psychiatrist expressed the opinion that the Appellant was fit to plead yet the Appellant had taken his plea years before. That was further evidence that the physiatrist’s contact with the Appellant was so causal that he did not even appreciate the stage that the Appellant’s trial had reached. In light of these circumstances, it was not possible to believe that the Appellant would, before the psychiatrist be of normal behaviour, mood, speech and cognition and a day or two later in court be totally incapable of appreciating where he was, as recorded in the proceedings.
13. The trial judge, after finding that the Appellant was insane under section 162 (2) and (4) of the Criminal Procedure Code and incapable of conducting his defence, erred by not following the prescribed procedure pertaining to the detention of the Appellant in a mental hospital. Secondly, having subsequently found that the Appellant had become sane but was still incapable of being made to understand the proceedings pertaining to the conduct of his defence, the judge erred by convicting the Appellant for the offence of murder instead of proceedings as required by section 167.

Appeal partly allowed;

 i.  The order of the High Court dated February 20, 2015 convicting the Appellant for the offence of murder is hereby quashed;

 ii.  In lieu thereof the Court substituted an order under section 167(1) (b) of the Criminal Procedure Code that the Appellant was detained at the President’s pleasure;

 iii.   Pursuant to section 167 (4) of the Criminal Procedure Code, the Deputy Registrar shall forthwith forward a copy of the proceedings of the High Court as well as the judgment to the Cabinet Secretary responsible for the Kenya Prison Service;

 iv.   Pursuant to the same section, the Appellant was detained at a mental hospital where he continued to undergo treatment.

 v.  The Deputy Registrar to forward a copy of the judgment to the Cabinet Secretary responsible for the Kenya Prison Service for purposes of noting and taking remedial measures regarding the examination and evaluation of prisoners by psychiatrists.