Case No.:

AC-CP.393. 1961

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—insanity and criminal responsibility—insanity after committing murder is grounds for commutation of death sentence Criminal Law—Murder—Death penalty commuted of one becoming insane after the grime

Accused had delusions of homosexual propositions and as a result killed a man who had approached him. Accused had been found too insane to stand trial shortly after his arrest. When three years later he was able to stand trial. he was found legally sane, convicted of murder, and sentenced to death. The Chief Justice found the accused legally sane, but so mentally deranged that he recommended that His Excellency the President exercise his prerogative of mercy. This was done, and the accused sent to prison for life.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABDEL A’L MAHMOUD KHALID

AC-CP.393. 1961

Advocate: Mirghani El Nasri ... for the accused

Reasons for the Finding of Insanity by Salah El Din Shibeika, First Class Magistrate, President of the Major Court convened at Khartoum. July 12, 1961; —The Major Court notices that the accused was examined by a psychiatrist, Dr. Taha Baasher, on September 9. 1957, about 15 days after the killing. The psychiatrist on September 23, 1957, decided that the accused was “of unsound mind and consequently incapable of making his defence” under Code of Criminal Procedure, s. 284 (i). On February 6, 1960, the psychiatrist in whose custody the accused had remained decided that the accused was able to defend himself.

Pursuant to Criminal Court Circular No. 21 (5) (a), the court called the psychiatrist as a witness although he was called neither by the investigator nor at the magisterial inquiry. The court heard the psychiatrist’s evidence, the evidence of the witnesses for the prosecution, and the accused himself on the issue of the insanity of the accused. The court decided that the question turned on “whether the accused at the time of the act possessed the power of appreciating the nature of his acts, or of controlling them by reason of insanity.”' The psychiatrist stated that although when he first examined the accused i15days after the killing the accused was too insane to defend himself, the psychiatrist was not able to determine whether accused had been able to appreciate the nature of his act at the time of the killing. The psychiatrist stated that the accused was not normal: he has low intelligence, is slow in understanding, behaves in a strange manner, is extremely excitable and irritable, but was not necessarily legally insane. The psychiatrist stated that the condition of insanity for which accused

115

was certified unable to stand trial under Code of Criminal Procedure, s. 284 (i), may have arisen after, and been caused by, the killing: the subsequent effect of the conscience of some men who kill under the influence of alcohol or in a condition of extreme excitement may be so severe as to render them insane after the act.

The Shawish warders responsible for the prison camp where accused was incarcerated before the killing stated that the accused, before the killing, was of very good character, one of the best prisoners in the prison camp The other prisoners stated that he was always alone.

The accused stated that he had been approached in his bed the night before by three known homosexuals, of which one was the deceased. None of these men named by accused would testify concerning this incident. The following morning accused went with an axe to the prison kitchen intending to kill one of the three men who allegedly had approached him. The court considered this good evidence that the accused was seeking revenge in a planned way and therefore appreciated the nature and quality of his acts. He also disguised his intention by telling others he was intending to cut wood with the axe.

For these reasons the court decided that the accused was not insane within the meaning of Penal Code, s. 50 at the time of the act and was therefore guilty of murder under Penal Code, s. 251.

B. Awadalla 1. September 17, 1961: —I entirely agree that on the evidence before it, the court could not have arrived at any conclusion other than that a defence of insanity was not established.

But although accused was at the time of the act sane enough to be responsible for the act, yet the evidence of the prosecution witnesses shows that the behavior of the accused in the camp was rather melancholic than normal.

The conclusion of the psychiatrist that the condition of the accused after the incident was consonant with real insanity seems to be sound as being on the theory that the already out-of-the-normal condition of the accused was aggravated by the murder to the level of complete insanity. But although the court inferred the sanity of the accused, at the time of the murder, partly from his attitude immediately after the arrest and partly from his intelligent version of the incidents disclosed in his state ment to the police (i.e., that an indecent assault was attempted on his person), yet it completely failed to consider why, when such an attempt was not proved to have been made on accused, he is making this allegation. The reason is that accused was simply imagining a conspiracy to assault him of which deceased was the perpetrator (cf. the statement of accused at p. 22 of the Case Diary). He was the victim of delusions, which prompted him to act as he did. Such delusions are no doubt the result of some mental abnormality which, though not sufficient to exonerate him

116

from responsibility altogether, is in my view important in considering the punishment to be awarded or to move the confirming authority to commute. Accused is entitled to be dealt with as if the delusions were true, If, therefore, a case comes before a court in which a person has taken away life under provocation, albeit neither grave nor sudden, given him by news of a conspiracy of an indecent assault upon his person, a recommendation to mercy would not be wrong.

Prerogative of Mercy

M. A. Abu Rannat C.J. September 19, 1961: —The accused in this case, Abdel A’l Mahmoud Khalid, was a prisoner at Grief Camp before he committed this murder.On August 25, 1957, at about 8.30 a.m., the accused was carrying a

heavy axe when a Shawish warder met him. The Shawish asked him why he was carrying an axe and the accused told him that he was  going to the kitchen to break tire-wood. Then the accused went to the

kitchen and there he found a prisoner by name El Tayeb Mohed Au.

Without a word he aimed a blow at El Tayeb’s head, but the latter stooped down and the blunt edge of the axe fell on El Tayeb’s back. Then the accused left the kitchen and went to the inner part of the prisoners’ camp brandishing a sharp knife. He went to the place where the deceased

Kamal Mohed Ali El Fawwal, Awad Yusif and Osman Hassan Gghandoor were sitting on beds waiting for their breakfast. The accused’ stood in front of the deceased and uttered these words: “Oh Kamal. You told El Tyeb” and when the deceased raised his ad to see the accused, the latter plunged the knife into the base of his neck. Blood sprang out Of the neck, the deceased ran for a short distance d fell to the ground and the two other persons ran away. The deceased died on his way to hospital in Khartoum,

Next day, the Shawish orderly went to see the accused in his cell. He found him naked and relieving nature on himself, and his mouth was full  of foam and was unable to speak; is clothes were torn and he was violent.

He was examined by the Government psychiatrist for the first time on September 9,1957. The doctor reported that he found the deceased in a high state of violence and mental disturbance, and that he was unable to

defend himself in view of the brain disease. The acc was put under the observation of the psychiatry until February 6, 196o, when a letter

Was received that the accused w calm and able to 1efend himself. Before the commission of this offence, the accused did not mix with other prisoners except at time of work and he was rather queer in his habits.

Our law of insanity is very strict and therefore the 4 rightly found

him guilty of murder and sentenc4ecj him to death, but is the type of case where your excellency normally exercises your pr of mercy

as the accused was under delusions that some of the prisoners wanted to commit with him carnal intercourse against the order of nature when he was sleeping in the camp and for such a case as this the death sentence should only be commuted to imprisonment for life.