Voluntary Act

CRIMINAL APPEAL 63 OF 2005

JOSEPH WAMBIRWA MWATHI (APPELLANT)
AND
REPUBLIC (RESPONDENT)

Facts of the Case

1. Body of a seven year old boy found lying in a pool of blood inside one of the two roomed house of the grandparents
2. The neck was severely cut with only the back holding the head to the body
3. Evidence submitted was that only a sharp object would have caused such injury
4. No witness saw he appellant commit the offence
5. First prosecution witness saw the appellant bend inside the kitchen
6. First prosecution witness says the appellant confessed of the murder. 
7. Both the first and the third prosecution witness saw the deceased with inculpatory evidence indicating that it was the appellant who had committed the offence
8. Third and fourth prosecution witness saw the appellant walk towards the direction of the police station
9. Appellant volunteered unsolicited information to fourth prosecution witness about the killing he had done. The appellant told the fourth prosecution witness he had killed the disabled child
10. Appellant also voluntarily disclosed to fourth where he had placed the murder weapon. The appellant mentioned that he had put the murder weapon near where the firewood was.
11. A knife was found in the kitchen where the appellant had mentioned he had put it, near the firewood was - inside the kitchen
12. Appellant denied the charges to the offense of murder
13. Appellant's defense statement was "he had gone somewhere on that day but when he returned home he found the child having died. He loved the boy and so he went to the police without
    talking to anybody."
14. Appellant was found guilty of murder charge and was convicted to mandatory death sentence
15. Aggrieved, the appellant approached the court of appeal 

Issues of the Case

The issues i have derived are:

1. Whether the appellant killed the seven year old boy when he told both the first and fourth prosecution witnesses 
2. Whether the appellant is guilty of murder when there exists inculpatory evidence pointing towards guilt of murder
3. Whether the appellant made the statements voluntarily or involuntarily

Issue recorded in the case:

• whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilt.

Rules

1. Section 25(a) of the Evidence Act is clear on what is a confession and what is not a confession admissible in court and therefore first, third and fourth prosecution witness statements cannot be taken as confessions and therefore not admissible in court.
2. Section 63 of the Evidence Act is clear what should be considered as Oral evidence and therefore the statements for first, third and fourth prosecution witness are admissible as oral evidence and not as confessions

Analysis of the Case

Circumstantial evidence in the case and on record irresistibly implicates the appellant with the commission of the offence and there seem not be any other hypothesis or extenuating circumstances.

1. The dead body of the deceased was found in the the appellants house
2. Appellant was the only person present at the homestead that morning and he was seen by PW1 and PW3, his sons, who were believed on their testimony by the trial Judge
3. Appellant opened the house where the deceased lay and went into his bed to lie down before leaving the house later to go towards Nyeri.
4. It is true that there was no credible murder weapon produced in evidence as the one produced was not subjected to forensic examination. This, we think, was incompetence on the part of the prosecution and cannot be held against the appellant.
5. The lack of a murder weapon is however not the end of the matter. It is also the law that there is no burden of proof placed on the appellant to explain his actions or presence at the scene of the murder. Nevertheless, we think the fact that there was a dead body inside the house of the appellant and the appellant was the only person present there, called for an explanation from the appellant if no adverse conclusion would be drawn. As per section 111(1) of the Evidence Act
6. Generally speaking, motive is not essential to prove a crime. Considering the issue in Libambula V R [2003] KLR 683
7. There was no proof of motive in this matter but the appellant took the risk of cross-examining fourth prosecution witness on his character and the witness revealed this: - “I know him as a bhang taking man as I arrested him when I was a chief and he was imprisoned at Kingongo”. The appellant neither challenged that evidence nor pleaded any circumstance that would negate the
   general presumption as to criminal responsibility and in particular the presumption of sanity under section 11 of the Penal Code: - “Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question, until the contrary is proved.”

Conclusions of the Case

1. It is the appellant who caused the death of the deceased and that he intended the consequences of his acts, whatever the motive.
2.  Malice aforethought is established inter alia by an intention to cause death of or to do grievous harm to any person. We agree with the learned trial Judge that the injuries inflicted on the deceased established malice aforethought. That ground of appeal also fails.
3. All in all we find no merit in this appeal and we order that it be and is hereby dismissed in its entirety.
4. The fact that the appellant made the statement voluntarily, then this can be treated as oral evidence as per section 25(a) of the Evidence Act. Appellants treatment can therefore be treated just the way prosecution witness one, three and four were treated - as oral evidence.

Statutes Mentioned

1. Evidence Act, (Cap 80). Section 25(a), section 63, Section 111(1)
2. Penal Code Section 9(3) 

Related Cases

1. Rex v. Kipkering arap Koske 16 EACA 135
2. Musoke v. R [1958] EA 715
3. Teper v. R [1952] A.C. 480
4.  Libambula V R [2003] KLR 683

Questions worth pondering, and you can add your point of view in the comments sections below:

1. Why was he not charged with manslaughter with temporary insanity being defense for murder?
2. The judges noticed/observed presumed insanity that came out from the cross-examination of the fourth prosecution witness. Can the appeal court reduced the sentence from manslaughter as a result? What options does the defense have to pursue the defense of manslaughter after this revelation? Is there anything the defense can do?

CRIMINAL APPEAL NO 70 OF 1991

NZUKI………………… APPELLANT
VERSUS
REPUBLIC……….…… RESPONDENT

Facts of the Case

Issues of the Case

Rules

Analysis of the Case

Conclusions of the Case

CRIMINAL APPEAL NO 17 OF 1991

JANE BETTY MWAISEJE .................APPELLANT

JOHN LUNGAZO MUGIZA .................APPELLANT

 DANIEL MUNUBI AZERE ....................APPELLANT

AND

REPUBLIC........................................RESPONDENT

Facts of the Case

Issues of the Case

Rules

Analysis of the Case

Conclusions of the Case

Brown v. State (1997)

Case Facts

A convicted murderer successfully appealed his conviction on the question of a non voluntary act causing the discharge of a handgun resulting in the death of his victim. Brown had claimed that the shooting was accidental, caused when he was bumped by another party, causing the weapon to fire. The appeals court ruled that the trial court erred when it failed to instruct the jury on the requirement of determining a voluntary act caused the discharge of the weapon.

Summary of Case Holdings

Voluntary act which leads to an involuntary act is sufficient to constitute the actus reus. Brown v. State: court found sufficient evidence to allow the jury to receive an instruction about voluntariness (Brown held gun which discharged when someone bumped him)

King v. Cogdon (1951)

Case Facts

Mrs. Cogdon had murdered her daughter with an axe, while “dreaming” that the home was under attack by soldiers…Somnambulism Medical and psychological evidence supported the defense claim that Mrs. Cogdon did not intend the consequences of her acts, as she was “asleep”. Mrs. Cogdon was acquitted of the murder of her daughter by a jury which determined that “the act of killing itself was not, in law regarded as her act at all.

Summary of Case Holdings

Acts committed while asleep do not constitute a voluntary act

People v. Decina (1956)

Case Facts

Decina was subject to unpredictable epileptic seizures, and chose to operate a motor vehicle despite his prevailing medical condition. During a seizure which followed while operating the car, Decina lost consciousness and killed 4 children on the sidewalk. The court held that the voluntary act was the conscious decision to operate the vehicle and disregard the known consequences that he knew might follow.

Summary of Case Holdings

Defendant voluntarily got into the car (knowing he was subject to epileptic seizure) and thus he killing was not an involuntary act. 

State v. Jerrett (1983)

Case Facts

A lower court was reversed in a case of Murder, Robbery and Kidnapping when it failed to instruct the jury before deliberations on the defense of automatism, after the defense demonstrated evidence supporting unconsciousness. The court held that the trial judge should have instructed the jury on the defense of unconsciousness.

Summary of Case Holdings

Acts committed while person is unconscious are not voluntary acts as a matter of law.

Commonwealth v. Pestinakas (1992)

Case Facts

In this case, the court determined that the failure to perform a duty imposed by evidence of a contract may be the basis for a charge of criminal homicide. The Pestinakas’ failure to provide food and medical care which they agreed to (creating an oral contract) was sufficient to support a conviction. The court found that the jury instruction was appropriate, and the conviction was affirmed.

Summary of Case Holdings

A failure to perform a duty imposed by contract may be the basis for a charge of criminal homicide. The Pestinakas’ failure to provide food and medical care which they agreed to (creating an oral contract) was sufficient to support a conviction. The jury instruction was appropriate. (Pestinakas)

People v. Oliver (1989)

Case Facts

A special relationship can be created by assuming the care of an individual. Carol Ann Oliver took an extremely intoxicated man into her home, assisted him with the means to “shoot up” in her bathroom, later observed him lapse into unconsciousness, left him unattended to return to the bar, told her children to drag the man out of the house, where he was left to die. The initial assumption of care in this case created and imposed a legal duty, the failure of which constituted a criminal omission (involuntary manslaughter).

Summary of Case Holdings

A special relationship can be created by assuming the care of an individual. The assumption of care creates a legal duty, the failure of which constitutes a criminal omission. 

State v. Miranda (1998)

Case Facts

Santos Miranda was living with his girlfriend and her two children 5 months, when he called 911 to report the 4 month old child was “choking on milk”. Miranda admitted acted as a “step-father” to his girlfriend’s children. Upon examination at the hospital, it was determined that the child had multiple severe injuries. The court later determined that anyone who saw the child would have had to notice the injuries, deformities and reactions. A defendant, acting as a father figure, to the victim assumed a “familial relationship” (even though there was no marriage or blood relationship) upon which a duty of care may be established.

Summary of Case Holdings

A defendant, acting as a father figure, to the victim assumed a “familial relationship” (even though there was no marriage or blood relationship) upon which a duty of care may be established.

Kitty Neighbor’s (1964)

Case Facts

37 individual “bystanders” watched as Winston Mosely stalked, and stabbed Kitty Genovese in 3 separate attacks over 35.None of these “good people” called the police, even though a single call could have potentially saved her life. A moral duty does not constitute the basis for a criminal omission

Summary of Case Holdings

A moral duty does not constitute the basis for a criminal omission.

Porter v. State (2003)

Case Facts

“Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy of a vehicle standing alone is not sufficient to establish possession.” The state had to, and did, prove additional factors to determine constructive possession, including:

• Whether the contraband was in plain view
• Whether the contraband was found on the accused’s person or with his personal effects
• Whether it was found on the same side of the car seat as the accused was sitting or in near proximity to it
• Whether the accused is the owner of the vehicle or exercises dominion or control over it
• Whether the accused acted suspiciously before or during the arrest

Summary on Court Holdings

“Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy of a vehicle standing alone is not sufficient to establish possession.” The state had to, and did, prove additional factors. (Court looked at all surrounding factors and determined constructive possession) 

People v. E.C. (2003)

Case Facts

A bar bouncer followed company policy and confiscated 14 packets of cocaine seized through a frisk of a customer seeking entrance to the club. The bouncer turned the substance over to police who responded to the bar for a separate incident, and was arrested for possession. The court held that temporary and innocent possession of illegal drugs (by a person who confiscates them from one possessing them illegally) is a defense to prosecution for possession Practical Policy considerations require this result:

• Parents dealing with Children
• School Personnel dealing with students
• CJ Personnel and Jurors examining evidence in their respective roles

Summary of Court Holdings

Temporary and innocent possession of illegal drugs (by a person who confiscates them from one possessing them illegally) is a defense to prosecution for possession (People v E.C.)Policy considerations require this result.