TRANSFERRED MALICE 2

ATTEMPT CASES 3

ISSUES OF LAW IN THE CASE OF R V MWAMWINDI [1972] HCD 219

DISTINCTION BETWEEN THE DEFENSE OF PROVOCATION AND INSANITY 8

REFERENCE 11

TRANSFERRED MALICE

The doctrine of transferred intent or malice is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object . To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to homicide, battery, and Arson .

In other words, transferred malice refers to the cases where the offender intends to harm one victim but instead harm another. In such cases the offender is held, responsible for his or her act though his or her intended victims was not injured, but transferring the malice he had towards the intended victim to the actual victim who suffer harm. This transfer is not made if the intent was not to accomplish similar harm, for example intent to assault does not transfer to the breaking of a window by throwing a rock intended to injure the victim .

The concept of transferred malice is enshrined under section 200 of the Penal code . Under this section it doesn’t matter who is the person killed provides an intention to kill is present. In other words we have what is called transferred malice in this section.

As  firstly  held  in  the  case  of  R  v  Latmer , a defendant will still be liable if he or she  has the  necessary  mens  rea  to  commit  a  particular crime  and  he or she  actually  executes  an actus reus  on  a  different  victim,  by  mistake  or  otherwise, other  than  the  one intentionally  targeted.  However,  if  a  defendant  has  a requisite  mens  rea  for  a  particular offence  but  by  mistake  he  executes  a different  actus reus,  intent or malice cannot be transferred. This was rightly espoused in the case of R v Pembliton . 

The concept of transferred malice can also be seen in the following hypothetical examples or scenarios:-

Juma married Asha and they have lived together for a number of years enjoying their marriage life, but on one occasion Juma and Asha quarried as Juma was accusing his wife for having an affair with the house boy. One day Juma made up his mind and decided to kill the house boy by poisoning him, to that effect, Juma poisoned the food in the hot pot that was to be eaten by the house boy. Unfortunately, his wife came and ate such food and consequently died on spot. In this scenario Juma’s malice to kill the house boy will be transferred to the killing of his wife, despite the fact that his wife was not a target.

In another hypothetical example, Felister had an intention to kill Geofrey, having formed a requisite mens rea to kill his friend by shooting him with her two barreled gun, but by mistake she entered in her friend house and kidnap his friend and later release him. In this scenario   therefore, though Felister has  a  requisite  mens  rea  for  a  particular offence  but  by  mistake  he  executes  a  different  actus reus,  intent or malice  cannot  be transferred.

ATTEMPT CASES

Attempts and conspiracies are known as ‘inchoate’ crimes. This is because the full actus reus of the principal offence has not been reached. However, as far as an attempt is concerned, the ‘full’ actus reus of the ‘attempt’ must be there .

Attempt  was  originally  an  offence  under  the  common  law  of  England.  Attempt  crimes are  crimes  where  the  defendant's actions  have  the  form  of  the  actual  nature  of  the  crime itself, that is the  actions  must  go  beyond  mere  preparation.  The  essence  of  the  crime  of  attempt is  that  the  defendant  has  failed  to  commit  the  actus reus  of  the  full  offence  but  has  the direct  and specific  intent to  commit  that  full  offence .  

For an  attempt  to  attract  criminal liability,  it must  be more  than  just  a  preparatory  act.  Equally,  the  defendant  must embark  on  the full  crime  but fail  to  reach  the full  circle of  the  actual  crime .

According  to  the  proximity  test  as  per  Lord  Diplock  in  the  case  of  DPP  v  Stone house ,  the  defendant  must  have  crossed  the  ordinary  preparation  and or  reached  a  proximate point  of  no  return.  That  is  to  say,  the  defendant  must  have  reached  that  part  of  the series  of  acts,  which if  not  interrupted,  frustrated,  or  abandoned,  would  inevitably  result in  the  commission  of  the  intended offence.

Under the provision of section 380(1) and (2) and (3) of the penal code  an attempt to commit an offence is by itself an offence, however for a crime of an attempt to be punishable the accused must have done some further acts than mere preparation. Several offences falls under this category including attempted rape, murder, fraud and so forth.

To constitute the offence of attempt, the following ingredients must be present that is intention to commit an offence, beginning to put an intention into execution by means adopted by its fulfillment, manifestation of intention by overt acts, but finally the person fails to fulfill the desired intention .

The problem with those crimes rests primarily on the question of actus reus and not mens rea because the actus reus is normally difficult to determine as sometimes it’s hard to draw the line between those acts that are merely preparatory and those went and executing a plan, will always go through a series of steps to arrive at the intended conclusion . Also another reason that make actus reus to be difficult to be determined is the fact that some aspects of the execution of the act will be too remote or removed from full offence, and this is evidenced in the following decided cases:- 

R v Rukondo s/o  Kamano ,  Accused  was  charged  with  attempted  murder. There  was evidence  that  accused  and  several  others  shot  a  shower  of  arrows  at  complainant and  his  companions  in  an  attempt  to  recover  meat  which  they  believed  complainant  and  his  companions  had  taken  from  them.  They shot from about 40 paces away.  One  of  the  arrows  hit  complainant  in  the  buttock,  causing  a  wound  tow inches  deep.

It was held that (1)  It  was  not  satisfactorily proved  that  the  arrow  which  hit  complainant  was  shot  by  accused. However, accused  and  his  company  were  all  acting  in  concert  and  with  common intention,  and  accused  is  therefore  responsible  for  the  injury  even  if  he  did  not himself  shoot  the  arrow.  (2) In  view  of  the  distance  from  which  the  arrows  were shot  and  the  other  circumstances  of  the  case,  accused  was  guilty  of  the  offence of  an  act  intended  to  cause  grievous rather  than  attempted murder.  The accused was then convicted of the former offence.

The case of R v Haruna Ibrahim , In this case the accused was convicted of attempted rape (c/s 132).  The  evidence  was  that  he  had  dragged  the complainant  to  a  ditch,  placed  his  hand  over  the  mouth  and  pulled  down her  underclothes  while  lying  on  her  when  he  was  observed  by  a  passerby and  fled. There was no evidence that at the time he fled, (he was) undressed.  The acts  of the accused  did  not  constitute  attempted  rape, since  he  had  not  yet  undressed.  Rather, the acts constituted mere preparation for that crime. The  acts  however  did  constitute  the  crime  of  indecent  assault  (s. 135  (1)  P.  C.)  A  conviction  for  indecent  assault  was  substituted  under section  185  of  Criminal  Procedure  Code.

Another case which can throw more light is the case of Mwandikwa Mutisya v R , where in this case the appellant was convicted by resident magistrate for attempted theft of articles which were locked in the car. The facts found by trial court were that the appellant tried to unlock the door of the car and for this purpose was after an entry had been forced, to steal articles in the car. The appellant was caught before he was able to open the door of the car. The substantial point taken on appeal was whether the attempt to open the car was in circumstances immediately connected with his attempt to steal since the offence occurred at night, the appellant might not have known exactly what was in the car or if he did, he might not have intended to steal all the articles in the car. It was held that, it was an act which was immediately and not remotely connected with the intended theft and it was an act which went far beyond preparation.

ISSUES OF LAW IN THE CASE OF R V MWAMWINDI [1972] HCD 219

Brief facts of the case

The information filed against the accused, SAUDI ABDALLAH MWAMWINDI, was that he murdered WILBERT KLERRUU on a Christmas day, the 25th December, 1971, in Mkungugu Ujamaa village in Ismani Division in Iringa District of Iringa Region. The deceased was at the time of this death the Regional Commissioner of Iringa Region and was residing at Iringa Township. The accused was at the time of the incident, was a member of the Mkungugu Ujamaa.

During the trial the accused raised some defenses and then contended that if it was the accused that killed the deceased he was insane when he did it and therefore could not be criminally liable under Section 13 of the Penal Code, however the accused had two major mental breakdowns in 1958 called CATATONIC SCHIZOPHRENLA. This mental disease has two forms, catatonic excitement which is characterized by violence, aggressiveness, restlessness, delusions and hallucinations.. 

The defendant also relied on the defense of provocation following some provocative words uttered by the regional commissioner, and such words includes, NI MAHALI UNAPOZIKIA MIRIJA WENZIO MBWA WEE’ (It is the place you bury your fellow exploiters, you dog), ‘UWONGO SHENZI’ (you are lying you uncivilized men) and FUNGA MDOMO WAKO’ (Shut up your mouth.). At this utterance the accused was stung beyond endurance and lost his temper completely. 

He went straight to his house which was about  170 feet away, fetched his double-barrel gun (Exhibit P.3), loaded the two barrels on his way out and when he saw the deceased he leveled the gun at him and pulled the two triggers at once with his middle and 3rd fingers (his index finger was deformed). The shots fired in quick succession and the deceased fell down and died on the sp about 8 feet from the accuser’s house .

Three important issue of law found in this case

Firstly, is the issue of insanity as provided under section 13 of the Penal Code provides that “a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission.” But that same section made it clear that a person can still be criminally liable for his act although his mind is affected by disease if such disease does not in fact produce upon his mind one or other of the effects specified in the section.

That the insanity must relate to the act complained of. It was not enough to show that the accused and a history of mental disease. It must be shown that that mental disease affected his act in the way specified in the section.

In determining this issue the court had to take into consideration, several factors such as, The accused’s family history, His own personal history, The circumstances surrounding the act itself and opinions of medical experts. 

By paying a due regard to those factor, the court satisfied itself that, the accused was of sound mind when he killed the deceased, though the accused suffered a recognized mental disease CATATONIC SCHIZOPHRENLA.

The second issue of law in this case is the issue of provocation as provided under section 202 of the penal code, as the accused believed that the state of the accused from the time he was abused, went to his house, collected his gun and shot the deceased was such that he acted in anger and by inference there was no time for his temper to cool. The court disregarded this defense of provocation as the court believed that the state of the accused from the time he was abused, went to his house, collected his gun and shot the deceased was not out of provocation as the accused had a time for his temper to cool.

Lastly, there was the issue of ujamaa and self-relance introduced by the government and its repercussion it has in most society especially in Mkungugu Ujamaa village in Ismani Division  where the incidents took place. 

DISTINCTION BETWEEN THE DEFENSE OF PROVOCATION AND INSANITY

Insanity, this defense is found on the premise that the accused person failed to form the requisite mens rea at the time of committing the offence due to the disease of mind which affecting  his or her understanding. Despite the law under section 12 , presume that a person is actual awareness of is act or omission unless the evidence proves otherwise. When the presumption rebutted the defense of insanity can operate as per section 13 of the penal code . 

For successfully raising the defense one must establish that he has been affected by disease of mind at the time of committing an act or making the omission and such disease made him fail to know what he was doing and he should have no control of the act or omission due to the disease of mind . The famous and celebrated case of R v M”naghten , which establish the rules enshrined in the section 13 of the penal code.

In case of Nyingo Suwatu v R , the appellant killed the inspector of police under delusions that he was plotting his death. He then surrendered to police and stated that “I have come here to be killed because they wanted my head. At the trial a psychiatrist gave evidence that the accused would know that what he was doing but not that it was wrong. The trial judge accepted that the accused was at the material time insane in medical sense; however accused statement to the police showed that he knew what he was done was wrong and therefore convicted him with murder.

Provocation refers to the action in heat of the moment or action that is the product of desperation or intolerable circumstances . The provision of section of the penal code provides for the defense of provocation s per section 202 of the law .

The case of Katemi Ndaki v R , the appellant, was charged with and convicted of murder contrary to section 196 of the penal code and sentenced to death. Apart from the evidence of PW 1 who asserted to have identified the appellant at the scene of crime there was a repudiated confession of the appellant saying that he killed the deceased in the heat of passion caused by sudden provocation by the accused. The trial court did not address itself on the issue of provocation raised in the confession. It was held that the omission to address the issue of provocation raises doubt as to whether an ordinary person of the community to which the appellant lives would not have been provoked by deceased’s outlandish behavior. The doubt is resolved in the favor of the appellant.

Basing on the above discussion, the two defenses that are the defense of insanity and defense of provocation can be distinguished as follows:-

In order for defense of insanity to stand the accused person must establish that he has been affected by disease of mind at the time of committing an act or making the omission and such disease made him fail to know what he was doing and he should have no control of the act or omission due to the disease of mind, WHILE, for a defense of provocation to stand the accused person must establish that, he acted out of heat of passion which is product of desperation or intolerable circumstances, which leads to loss of self-control and eventually there was no room for an accused person to cool down his temper .

Once the defense of insanity is raised normally some peculiar steps are taken by the court proving the insanity of the accused person and such steps are provided under section 216 of the criminal procedure Act , Where among other things the court may inquire into the fact of the unsoundness of mind of an accused person the court may order the accused to be detained in mental hospital for medical examination, and such medical report shall be tendered by medical officer within forty-two days of such detention or submission , WHILE these peculiar steps are not applied once the defense of provocation is raised.

Moreover, once defense of insanity is successfully raised it may be a good ground to acquit the accused person from the charges, WHILE once the defense of provocation is successful raised it may reduce the charges of an accused person from murder to manslaughter however It is not every provocation that will reduce murder to manslaughter. To have that effect, the provocation must be such as temporarily to deprive the person provoked of the power of self-control, as the result of which he commits the act which causes death .  

REFERENCE

BOOKS

Card, R., (2008). Criminal Law (18th Ed). Oxford University Press: London.

Chandrasekharan, K.N (2011). General Principle of Criminal Law (2nd Ed). Eastern Book Company Publisher: India

Williams, G (1978). Text book of criminal law (2nd Ed). Universal law publishing Co PVT LTD: India 

STATUTE

Penal Code [Cap 16 R.E 2002]

Criminal Procedure Act [Cap 20 R.E 2002]