(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ISMAIL HASSAN EL TAHIR

AC-CP-28-1967

Principles

Criminal Law—Insanity—Irresistible impulse, i.e., uncontrollable passion or fury of Sane man—Partial insanity—Not defences under Sudan Penal Code, s. o (a)

     Irresistible impulse, i.e., uncontrollable passion or fury of a sane man, and not the product of mental disease, is not a defence under Sudan Penal Code, s. o (a) as well as partial insanity. (Partial insanity is a cause for commutation:
Sudan Government v. Nafisa Dafalla Mohamed (196o) S.L.J.R. 599).199)

Judgment

         Advocate:     Hinari Riad for accused

.          Abdel Mageed Hassan 1. January 24, 1968: —The facts of this case are clearly set out in the summary of salient facts and I intend to deal with them in the Prerogative of Mercy.

The evidence produced before the Major Court clearly showed that accused had caused the death of deceased. Accused had stabbed deceased with a flick-knife on various parts of the body and shot three rounds from a pistol at deceased. Four of the five stab wounds inflicted on deceased were either on the chest or abdomen and each penetrated deep enough to destroy the liver, the spleen or the lungs. Two of the pistol shots were on the chest, one shot on each side, and the third penetrated right through the right thigh. The medical report attributed the cause of death to these wounds and the witnesses proved that accused had inflicted them on deceased.

The question is whether accused intended to cause the death of deceased or knew that death was the probable consequence of his acts.

It is pleaded that accused could not be responsible for his acts for his mental infirmity.

The medical report on accused showed that accused is visited by attacks of acute nervousness during which he has no control over his thoughts or acts. This report was based on the statements of accused’s sister, on an incident purported to have happened in 1963, and observation of the doctor while investigating accused’s conditions.

Under Sudan Penal Code, s 59:

“No act is an offence which is done by a person who at the time of doing it did not possess the power of appreciating the nature of his acts or of controlling them by reason of:

a. Permanent or temporary insanity or mental infirmity; or

b. Intoxication caused by any substance administered to him against his will or without his knowledge.

Criminal Court Circular No. 21 dealing with insanity and criminal responsibility shows that the law of the Sudan relating to insanity and mental infirmity differs from the law of England as stated in M’Naughten’s case. At section 4 the circular points out the issue for determination as follows:

 1. Was the accused at the time of his act incapable of appreciating the nature of his acts by reason of permanent or temporary insanity or mental infirmity?

   2.   Was the accused at the time of his act incapable of controlling his acts by reason of permanent or temporary insanity or mental infirmity?

If the answer to either of these is “ yes” the act of accused was not an offence.

In Sudan Government v. Musa Adam Isha (1958) S.L.J.R. 1, Abu Rannat C. J. stated:

“Our law is different from Indian and English in details although the result may be the same. We do not recognise the English and Indian test of lack of knowledge that the act is wrong or contrary to law.”

In Sudan Government v. Abdel Wahab Abdel Sakhi (1961) S.L.J.R. 110, Abu Rannat C. J. stated:

“The mere fact that on former occasions the accused had been occasionally subject to insane delusions or had suffered from derangement of the mind, or that subsequently he had at times behaved like a mentally deficient person per se is insufficient to bring his case within the exception.”

The requirements of section o must be proved.

Abu Rannat C. J. went on to say in the same case:

“As to control of the act, this refers to cases of irresistible or unresisted impulse. It is known that most crimes are the result of temptations or impulses that are not resisted, and it is absurd to expect any court to accept a medical opinion that the act was the result of an irresistible impulse beyond the control of the patient without corroborative evidence.”

Insanity is everywhere a defence to a charge of crime, for without a sound mind there can be no criminal intent. There are two tests adopted in various countries. Most of the countries have adopted the “Right and Wrong” test of M’Naughten’s case. An additional test is called the irresistible impulse test. This test considers that the right and wrong test is not sufficient in all cases and that a person who knew that the act he was committing was both morally and legally wrong may still be held not responsible if he lacked the power to resist the impulse to commit it. Under the irresistible impulse test the impulse must be the product of mental disease rather than the uncontrollable passion or fury of a sane man.

The crucial question however is whether our criminal law should recognise the concept of partial or diminished responsibility. The adoption of such a principle would enable the courts to take into account all those mental deviations, which affect the emotional and volitional processes of human personality and yet are not covered by the concept of insanity or mental deficiency.

Accused is suffering from what is called Reaction character Traits Neurotic character “. This is the commonest type of mental abnormality which underlies anti-social behaviour. From personal experience most of us know how we reacted to particular difficulties or situations and as a result developed a habit or character trait. The child who feels fear and is perhaps laughed at for it tends to develop a “Don’t care” attitude or he shows off by doing adventurous and risky things to demonstrate his courage and manliness. The child or adult who feels inferior tends to sneak or to bully. The child who feels or is unfairly deprived of parental affection and care may cover up his sense of need by assuming a rebellious attitude of indifference and grievance. The reaction trait therefore means a tendency, which is developed in order to cover or mask an opposite tendency. The gangster type of boy who is often proud to think himself “public enemy No. 1”is therefore, most often the product of early neglect with a sense of deprivation of affection. Accused is a typical case of the last example. His father had left their house since accused’s childhood. The mother is the nagging type who soothed her troubles in life by rebuking accused, and perhaps the other children. When accused started to earn some money, he was the first target at which she directed her anger, mostly in fear that he (accused) would follow his father’s example in neglecting her.

      In this case now before us the medical report is defective as it is based on one single incident in 1963 and the statement of accused’s sister who would tell anything in favour of her brother. There is also no corroboration to the medical report as required in the case of Abdel Wahab Abdel Sakhi. It has been shown that irresistible impulse as such could not be a defence under Sudan Penal Code, s. o, as well as partial insanity. Moreover, accused’s state of mind at the time of the commission of the offence, accused’s conduct before and after the act must be considered. Before the act, accused went to his sister to persuade their mother to accept him back in her house and so end the dispute in the family circle. When the mother refused and went off to call the police, accused was quiet and the only thing he did later was that he burnt his clothes. When the policeman came accused quietly followed him towards the police station. Then accused got onto the floor, stabbed deceased, grabbed his pistol and shot three rounds at him. Accused then started to escape. He entered the first taxi-cab and fled. Later accused surrendered himself to an advocate. His reasons for this were that he wanted to evade any ill treatment from the police as he had killed one of their colleagues. I do not think that the accused could have a better and more sound course to follow. He tried to settle the dispute in the family circle. Then he committed murder and escaped on the best possible transport available; then he surrendered to an advocate to safeguard against any ill treatment from the police. In

The circumstances, I am of opinion that accused was not only of sound mind but also of a high standard of intelligence.

Accused could not benefit from the exceptions under the Sudan Penal Code, s. 249, and I am of opinion that the finding of guilty under Sudan Penal Code, s. 251, should be confirmed.

As to the sentence, I am of opinion that the death sentence should be confirmed. Accused had killed a policeman on duty not only by stabbing him five times but he also grabbed the policeman’s pistol and shot three rounds at him. Nothing could mitigate or be a ground for commutation in such an atrocious case.

Abdel Magid Imam J. May 12, 1968: —This was a clear case of murder. I think there is no difficulty when considering confirmation of the finding of guilty under Sudan Penal Code, s. 25The accused had mortally stabbed the deceased with a knife and shot him to death with a pistol.

The only defence open to the accused was that of insanity. Though the medical report witness had positively testified that the accused was visited by some mental disorder, which rendered him unable to control his acts, the court rejected the testimony upon the ground that from the evidence heard, it was proved to its satisfaction that the accused was perfectly sane at the time he committed the act. The court arrived at this conclusion by way of inference from the accused’s conduct shortly before and shortly after the act had been committed. The court also pointed out that the expert evidence was not sufficiently corroborated. I am prepared to accept this finding though I believe that had the accused’s antecedents and past mental history been more brought to light and proved, the court would have been satisfied that in all probability the accused might have been suffering from some temporary disorder, which made him unable to control his acts.

I therefore agree with my learned colleague that both finding of guilty and sentence should be confirmed.

But as to the execution of the death sentence I strongly hold the view that there are sufficient grounds for reprieve. It is true that the victim was a policeman on duty and as such the murder is aggravated. But this fact alone should not shadow our judgment when considering the prerogative of mercy. I am certainly satisfied that this accused had been at least suffering from irresistible impulse. His mother, P.W.6, the primary cause of his wretchedness, testified that he had been periodically visited by abnormalities every month of Ramadan for the last seven or eight years. His sister, D.Wj, corroborated this statement. D.W.3, Dr. Amin Ali Nadim gave his opinion in respect of this matter and supported it by relating an incident which occurred to the accused while he was in the service of the army when he attacked a fellow soldier with a rifle and because of which

                he was kept under treatment for three months. The very morning the incident took place the accused burnt his belongings. P.W.5, Advocate Faroug Abu Eisa testified that the accused showed signs of nervousness on hearing his mother’s name mentioned.

The deed which the accused had committed was evil but I think the doer was not intrinsically so. I therefore think that the death sentence should be commuted to life imprisonment.

Galal Ali Lutfi 1. July 7, 1968: —Killing a policeman on duty is a very serious and grave offence and in normal cases where murder is proved the death sentence is the appropriate punishment. But in this case, although the killing was savage and cruel, I find it very difficult to endorse the view that the death sentence should be carried out. The accused’s mental state is not an ordinary one. It is clearly proved that he is not a normal person and that he was under medical treatment for fits of an irresistible impulse. It is true that it is not proved to the satisfaction of the court that the said fits were enough to render him unable to control his acts and thus absolve him of criminal responsibility but in my view they are good grounds as mitigating or extenuating circumstances.

Therefore, I agree that the finding should be confirmed but the death sentence should be commuted to life imprisonment.

ORDER: Abdel Magid Imarn J. July 8, 1968: — We confirm the finding of guilty under Sudan Penal Code, s. 251 but commute the death sentence to life imprisonment as from December 16, 1966.