Case No.:

AC-CP-342-196

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Evidence—Psychiatrist’s report—Not admissible under Code of Criminal Procedure ss. 228 and 229 unless given viva voce

·  Criminal Law—Insanity and criminal responsibility—Psychiatrist should give evidence on (i) ability to appreciate acts and (2) ability to control acts

Accused was convicted of murder on a psychiatrist’s report received into evidence without the presence of the psychiatrist at the trial. The report merely stated that the accused was insane at the time of the act.
Held: (1) a psychiatrist’s report is inadmissible at trial under Code of Criminal Procedure, ss. z and 229 unless given orally by the psychiatrist himself.

(iii) The psychiatrist should give expert evidence on the ability of accused to appreciate the nature of his acts and his ability to control them, as well as on the nature of the mental disease.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABDALLA EL HASSAN OMARA

AC-CP-342-196

Advocate: Hassan Koheil ... for the accused

Facts found, by Khallifalla Rasheed, President of the Major Court convened at Shendi, July 28, 1961: —On July 26, 1957, the accused intimidated his mother and burned her furniture; he was wearing a knife at the time. This happened at Hittat Keli When the police arrived at the village on- July 27, 1957, they did not find the accused and estimated the value of the burned furniture at about £S.3 On July 28, 1957, the accused came to town and started to threaten the people and to run after women at night. That evening the people of the village heard a cry for help. A group in which was the deceased uncle of the accused went towards the cry and found the accused. The deceased calmed the accused and took him home. Certain women came to the house to complain about the behavior of the accused. Deceased’ questioned accused about their complaints. Accused got angry with the deceased and suddenly attacked him and stabbed him with his knife. Deceased hit the accused and threw him to the ground, but the accused succeeded in stabbing the deceased with his knife many times, and thus caused his death. Accused was arrested. After the arrest accused started to act in unnatural ways. He was sent to the local doctor. On November 30. 1957, a magisterial inquiry took place. Accused was found insane and unable to defend himself, and was so committed to the custody of the Province Governor. On November 3, 1960, the medical authorities decided that the accused was then sane enough to defend himself; on January 4, 1961, accused was committed for trial. He was tried on May i 1961, and was convicted on July 28. 1961, of murder under Penal Code, s. 251, and sentenced to death.

B. Awadalla 1. August 19, 1961: —The first remark I would like to make about this case is that the law as it stands does not at all permit the admission of the evidence of the psychiatrist unless it is given viva voce in court.

It seems to me that the court took it for granted that being the evidence of a doctor it is admissible without the necessity of calling the doctor himself. This is wrong.

The two relevant sections in the Code of Criminal Procedure governing this matter are ss. 228 and 229. The first section deals with depositions and written reports of doctors admitted for the sake of “proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him.”

The second section on the other hand deals with reports of scientific experts in bacteriology, physiology, biology, pathology, chemistry or other branch of scientific knowledge. But the ambit of this section is very narrow in that it relates only to “any matter or thing duly submitted to him for examination or analysis and report.” So assuming that psychiatry can be included under the ejusdem generis rule under the general words “other branch of scientific knowledge,” it would still be impossible to admit the report of a psychiatrist on the mental condition of a person examined by him, for a person is not, a “matter or thing within the meaning of this section.”

In my view this is a serious lacuna in the law, which call for immediate action. Psychiatrists are very important and highly-occupied doctors, and it would mean an impossible encroachment upon their time if they are to be summoned outside Khartoum in order to’ give viva voce evidence whenever the defence of insanity is set up.

I now come to the merits of this case, and in my view, even assuming that psychiatrist’s reports are admissible, the evidence given as to the mental condition of the accused is far short from enabling any court to make a decision as to whether the accused was sane enough to be responsible for his acts or otherwise,

When a defence of insanity is made, there are always three questions which have to be raised by the court and upon the answers to these questions will depend whether or not such a defence will succeed. These are: (i) is accused insane? (ii) If so, did he possess the power of appreciating the nature of his act? (iii) If the answer to (ii) is in the affirmative, did he possess the power of controlling such acts?

If the answer to (i) is in the affirmative and that to either (ii) or (iii) is in the negative, then the defence is established.

No. (iii) is the defence of irresistible impulse in insanity, which, in our Code, is advancement both on the English and Indian laws.

In the present case, the psychiatrist only answered the first question. Both his reports of August 24, 1957, and November 5, 1957 (the first made about a month after the incident) clearly indicate that accused was at the time suffering from a well-recognised species of dementia known as “schizophrenia” which, in accused’s case, is characterized by disorder of thought and persecutory delusions.

According to Sydney Smith, Forensic Medicine 383 (10th ed. I9

“Schizophrenia is the generic term for a group of disorders characterized by a disintegration of the emotional stability of the patient and his with drawal from reality. In this group we find those individuals who were formerly classified under dementia praecox, catatonia and paranoia.”

It therefore needs an expert to answer the two remaining questions which have to be answered under Penal Code, s. o. in present case, since the psychiatrist himself examined the accused at a time proximate to the commission of the act, there is no objection to his being asked the very questions which the court (or in England the jury) has to answer in order to decide the responsibility or otherwise of accused. Phipson, Evidence 408 (9th ed. 1952).

But how can such evidence be made available to the court sitting at Shendi? I do not think the psychiatrist can, or should, be made available to give oral evidence. The most convenient course to adopt would there fore appear to be to return the case for retrial with instructions to the President to frame the questions and send them with the accused to the Resident Magistrate at Khartoum-North. The Resident Magistrate should then agree on a date with, the senior specialist in mental diseases (Dr. Baashar) who had examined accused when he was first sent to Khartoum in i to give his view and answer such questions, if any, as may be asked by or on behalf of the accused. Cf. Code of Criminal Procedure,

5. 228 (i).

M. A. Abu Rannat C.J. August 20, 1961: —l agrees. I direct that the case be sent back to the Resident Magistrate, Shendi, for retrial on the lines contained in the note by Mr. Justice Babiker Awadalla.

The court need not rehear the evidence of the witnesses, which had already been recorded.