Suzana d/o Charles vs Republic (High Court Criminal Appeal No. 116 of 1982) [1982] TZHC 366 (29 October 1982)

.,

• tit, .~ ·1 l; :i, ,,.}!. •' SUZANA D/0 CHAr'<.LES 0 0 0 o ·O o O O o ,-: r, 4 0 o O O O O o O O O O e o g C') o APPELLANT THE REPUBLIC ouooooooooooooonoooooooooooooo•oo RESPONDENT CHARGE: Desertion of Child c/s 166 of the Penal Code, Capo 16 of the Lawso JUDG11,1ENT KATITI, Jo, - The early Iviarchr of 1981; witnessed PWo3 Thomas Mushungembe happily TY'arrying Snzana d/o Charles, here:i .. n to be rferred to as the appellant. She already.ad had a child born of hero The 25/3/1981 cae, as FvJol Nkananga Shage, was busily engaged in her shamba, a child cry from the wilderness jerkd her, and calling upon PWo2 for assistance, they both anxiously w:n.t L-,-to the bush 1 cnly to find a child aged about ten-,,,onths naked, and abandoned o The child was rushed to the Hospital for precautious ca.i.'.'eo As the discovery, spread like tro;Jical..fires, it was subsequently discovered that, the appe:Llant was the mother, The appellant did not venture to deny, her ..,other-hood to the child, but com:tercd the allegations of child desertion in court, by presenti:,19 a story, that one Ester Charles, ha_d forcefully taken r-r.vay the child, and that, (she) appellant had reported the affaj_r to -i:he ten-cell leader, who pr-ornised to look.,into t:1e l'latter o This Ester Charles, if unficti tious, was never called by the prosecution, n.or by the defenceo The culmination of the prosecution, was the conviction of the appellart, and u sentence of detention, at the President's Pleasureo She is 1ow appea1in•;1 against the conviction, and the resultant sentence, or ordero As the trial magistrate, was almost reaching his conclusion to convict the appllant, he, for the first tirne co""ited to paper, his diagnosis of the appellanto For the appreciation of what he had in mind, I shall hereunder reproduce what he said, and I quote:- ! 0 •• ~ so in short, the accused person, though not insane but can be grouped arnong the simpletons c::: ,,,orons. And for this reason, she cannot be made to understand the proceedj_ngs o She has failed right from the beginning to u:1ders tand the proceedings::· eas f_ictuccd by ·'.:h;; ;_-rosecution and adduced by hers due to her imbeci':li ty·. ooo/2

,. •· -2- As far as the case is concerned, there has been strong evidence to justify a conviction, and so I convict the accused as chargedo (sgd)o Wo 0gola, District Magistrate" ... And hurriedly following·8°r(heel·s, was the trial magistrate's sentence, that was worded in the ..,anner-hereunder, and I q]9te for ease of reference: .. ·.•• .. ·. SENTENCE: "The accused is one who .. cannot understand the proce,::dings o She is now sentenced under section 169 (1) (a) of the Criminal Procedure Code Capo 20, to be detained during the President's Pleasureott It is with unJT'itigated enxiety, that I should as of now, change dir2ctio::-1 f rorn •. considering, the ,.,.,eri ts of the appeal . generally, to fj_;:st considering, whether the procedure · adopted by the ;rial magistrate to the destination reach_E:?d, was in the .. circumstances, an appropriate one. The trial Magistrate assumed readiness, to apply settion 169(l)(a) of the Cri1:1L1al Procedure Code Capo 20, to · order detention of the a:,)pellai1t during the President's pleasure , •• after being atisfied, i.n his own view, by his own untrained diagnosis that, the a:ipell.i:1,11.t, though not insane, was simpleton, a mo_ron and imbecile.. Ny worry, that is here pervading is that, .• the trial magistrate took th.e unrestricted liberty, to loosly use such words, which though in ordinary language, have 'T'!eanings connoting degrees of inadquacy of capacity of mind, I know of no legal construction that, has. been attached to the sameo I shall therefore, in this exercise keep as safe a distai'1ce as possible, fro"" treating the"" as helpful in this case., .. All the samE.:, the trial ..,agistrate, was on the road to applying the provisions of section 169 Cl) ( a) of the Cri""inal Proc2dure Code Capo 20, as it lays down the procedure, where the accuscd cannot be ..,ade to understand the proceedings .. For ease of refereicce, the sa...,e sub-section hereunder reads:- 169 - (1) If the accused, though not insane, cannot be made understand, the proceedings:- ,I Ca) in cases tried by a subordinate court, the court shall proceed to hear the evidence, and if nt the close of the evidence for the prose- cution and if the defence has been called upon, of any evidence for the defence, the court is of opL1ion, that the evidence which it has h2ard would not justify a conviction, it shall acquit and discharge the accused, but if tqe court is of opinion, that the evidence, which it has heard would justify a conviction, ~t it shall sentence the accused to be detained during the President's Pleasure.," : .,<- ... ,•

I beg to subit, that the trial ""agistrae having observed the appellant, di.d obviously develop qualms .about the appel¥&t' s capacity to understand the proceedingse The magistrate was obviously not sure, whether the aopellant's .. mind was .. at safe distance from. insnni ty, OJ:: whether she could not understand, or ap;:)eared not to understand because of some other ..,edic·a1 or even linquis:tic proble"'So The trial "1agistrate in his own observation_-· a lay .,.,an' s observation - for t.he sa""e ""agistrate, is not ·known for mdic 9 1 or i::,0hic1tric qualifications ruled out insanity, but l.atelled the appellant u sipleton, a moron and imbecile and proceeded to apply the provisions of section 169(1) (aL.of the -_ri.,..,inal l?.rocedure C9.de Capo •. 2O. I "'ake no. intellectual pretentions about .. medicine, nor do I know-if the words i"'becile simpleton, moron have ,..,cdical eanings, and I consider it difficult for a layman, which the trial ,.:,agistrate is, in.-.that branch of learning, to. t.nll different for""s of insanity and even di:itinguish di f:ferent colours of insanity, fro,.., .s.ub-nor"'al intelligence, or even fro ibccilityo A person who i deaf-mute 9~ dumb, -ay easily exhibit signs that a lay-"'an could easily Mistake for thosa of insanitye Again, a oerson may suffer temporary _insanity, or, "':lay even be on the brink of insanityo In view of such ,.,,edicnl n"ali ties, it was risky for the trial ""agist.tete to venture his mi;,d blind folded into the profession that, was foreign to hin. But aJ.l thEi sal""e, if the circumstances facing the trial -agistrate, dcanded the aoplication of section 169 (l)(a) of the Cril'1iri.al Procedure Code Cape 20, the right procedure had to be follouedo And hereunder I shall demonstrat-e the procedural steps that, would have safely led him to the destination dbsirede (a) In the fj_rst plae, logically, the trial subordinate court, unless it is an obvious case of violent insanity, ..,ajl .. not appreciate, how the accused cannot be "'ade to under- stand the proceedings, unless the said proceedings have CO"""'encede .. Thus where, the court initially suspects that the acuscd cannot understand the proceedings, the said court M_ust proceed· to see.,. whether the said accused cannot be .. ,.,,ade· to understand the proceedingso ... Yor whether or not, •. the accused cannot be -ade to understand the proceedings, it is in..my view, a question of adquacy of co,., .... unication to and fro,.,, th<::! c1ccuscd, to tha..witnesses and the trial ""agistrateo This co,.,,,.,,un.icc1U.on coul.d be through an interpreter, or signs, if need beo Whether the co"'-unication is through an interpreter, or signs, th2 said co-unication ..,ust be such that it is adquate enough to c>.nsure, that the accused understands the evidence, that is being adduced against him on one hand, and is able to adquately . ..appreciate and take advantages of the defence:, rights explained to hi"' on the other o If as a result of this type co..,...,unication, the accused understands the proceecli1:.gs, ·t:hn. the trial must procred in .. the nor""al '""annero (b) w·:1crc 011 the o:ther hand, with the com-unication available, the accused cannot be "'ade to understand the pocee- dings, the trial court, ,...,ust ...,ake a finding to that effect

-4- under section 169 (1) of the Cri..,inal Procedure Code - ioeo that, th~ accused cannot be ade to understand the proceedings 0 Cc) W11erc the accused cannot be made to understand the proceedin.gs and, a finding to that e£fect has b.een ade, then on hels, is thc-:• question whether, or not he is not insane. The accused should be sent for Medical examination •arid deterriin.ation, as to his sanity, or otherwiseo (d) Where the accused has been certified sane, and as above already show he/she cannot be ""ade ot understand the proceedings thE:! subordinate court, shall under. section 169( 1) Ca) of Cri"1inal Procedure Code Cap. 20, - ioeo proceed to hear the ::>rosecutio::., a,1d defence if called upon of any evidence, and finally dcti:';rr,ine whether, or not, the evidence justify a convictiono I;.1 the event the accused is convicted, he/she has to be sentenced to be detained during the President's pleasure., I11 the event of acquital, the said accused has to be discharged. As I had earlier indicated ,,.,y word.es, the record does not show the above procedural steps were followedo The question of sanity, or insanity was su,...Marily, but unprofe- ssionally dealt withe The record o.the other hand, shows that, although th0 accused pleaded not guilty and defended herself on oath, she never cross-exaMined anybody throughout_. the trialo I think in the interest of justice the case be sent back for re-hearing, before a different magistrate of co:-:.petent jurisdiction,. who wi 11 take the procedural steps hereinshown. I do not have to go through the merits, or de~erits of the appeal, in view of the above conclusiono .. .2.9 u.. Delivered this •"oo day of October, 19820 Eo Wo KATITI JUDGE