Mandatory Requirement of The State of Mind of the Accused for a charge of Infanticide 

PAO V Republic

High Court of Kenya at Busia

Criminal Appeal No. 3 of 2015

F. Tuiyott J.

May 19, 2016

Reported by Emma Kinya Mwobobia

Criminal law - Infanticide - mother charged with unlawfully killing her son aged 1 month - killing by strangulation and throwing body in a pit latrine - appeal against conviction and sentence of 7years – ingredients of the offence of infanticide – mandatory requirement to establish the state of mind of the accused person - whether the charge sheet as drafted was sufficient to establish the charge of infanticide - Penal Code sections 205, 210

Brief Facts

D P O died in Infancy at 1 month and 10 days in the hands of his own mother, the Appellant, who threw him in a pit latrine. Following the death, the Appellant was charged with the offence of Infanticide Contrary to Section 210 as read with Section 205 of The Penal Code. The Appellant pleaded guilty to that offence, was convicted and sentenced to a prison term of 7 years.  Aggrieved by the sentence, the Appellant commenced the present Appeal.

Issue

Whether a charge of infanticide that did not specifically elaborate on the state of mind of the accused person at the time of the commission of the offence was sufficient for a conviction.

Relevant provisions

 Section 210 of The Penal Code provides:-

Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her having fully recovered from the effect of giving birth to the child or by the reason of the effect of lactation consequent on the birth of the child, then, notwithstanding that the circumstances were such that but for the provisions of this section the offence would have amounted to murder, she shall be guilty of a felony, to wit, infanticide, and may for that offence be dealt with and punished as if she had been guilty of manslaughter of the child.

Held:

1. An essential element of the offence of infanticide was that the mind of the accused person was, at the time of committing the offence, disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.  For the Prosecution to successfully establish the guilt of the Accused person, it ought to prove, inter alia, the requisite disturbance of the mind. 
2. In the present case, it was not clear whether or not the Accused person was subjected to a mental assessment.  Had her conviction been reached after a full trial, then the conviction on the offence of infanticide would have been unsafe for lack of proof of the disturbance of mind.  Without that proof then another offence, perhaps, murder or manslaughter would be disclosed.
3. Given the definition of the offence in section 210, the particulars of the offence lacked some essential elements. The Appellant was charged with unlawfully killing the infant. An essential element of a charge of Infanticide was that the Accused by wilful act or omission causes the death of the infant. 
4. The Particulars of the offence did not state that the Appellant’s balance of mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of Lactation consequent on the birth of the child.   The state of mind of the accused at the time of commission of the offence was critical. It did not help that in reading out the facts after plea had been taken, the prosecution failed to state the Appellant had suffered such mental disturbance at the time of the Commission of the offence.
5. The Particulars of the offence were so wanting in the essential elements of the offence of Infanticide that the Appellant answered to a charge other than the offence of Infanticide.  The facts read out by the prosecutor only served to compound the weakness in the charge.  The present case was one of those instances where a court was entitled to interfere with a conviction reached on the accused’s own plea of guilt. 
6. The trend in other jurisdictions (e.g. in the UK) was that offences of Infanticide were met, invariably, with a non-custodial penalty on the rationale that such offenders generally required treatment and probation but with the usual caveat that each case ought to be considered on its own special circumstances.   For the reason that the Appellant has served a custodial sentence which may very well not have been the appropriate sentence even if properly convicted, there will be no order for a retrial.

Conviction quashed and sentence set aside. Appellant released.

Cases

East Africa

1. Mwau, Elizabeth Mwelu v Republic- Criminal Appeal No 15 of 2013 (Explained)

 United Kingdom

1. Kelly & another v Republic [2003] EWCA Crim 2957 – (Applied)

2. Regina v Lisa Therese Gore (Deceased) [2007] EWCN Cr 2789 – (Followed)

Statutes

East Africa

1. Penal Code (cap 63) section 210, 205 – (Interpreted)

United Kingdom

1. Infanticide Act 1938 (of England) section 1(1) – (Interpreted)

Advocates

None Mentioned