THAMU OF GUYUK V. THE QUEEN

Foster-Sutton, P. This is an application for leave to appeal against conviction on questions of fact.

The applicant was convicted on a charge of having murdered a man named Jamla. The evidence of the witnesses for the prosecution, which ,was not disputed by the applicant, was to the effect that on the day of the killing the deceased was slitting, together with five other men, in a hut drinking when they heard a noise outside. The deceased got up and went outside and was overheard asking the applicant what he was smashing to which the latter replied ..why ask me when you have not given me to eat for five days “. The deceased does not appear to have answered these remarks and he then returned inside the hut and resumed his seat. Shortly afterwards the applicant came inside the hut, produced a knife and without saying anything stabbed Jamla in the back, Withdrew the knife, and walked out. Jamla died as a result of that injury.

Some time before the day of the killing the applicant ran away into the bush and it was some days before he was discovered and brought out. Two of the witnesses for the prosecution testified that the applicant was regarded by his fellow villagers as being mad and he appears to have been feared and left very much alone.

The applicant did not give evidence, on oath or otherwise, at his trial, but a statement made by him before the Magistrate was put in evidence by the prosecution. In that statement he alleged that he had stabbed Jamla because he had been following my wife around” and that he had heard Jamla telling his wife that he would take her away. He also stated that he was hungry and had not eaten anything for five days.

In answer to the Magistrate's question, “Did you know when you struck Jamla that what you were doing was wrong ?” he answered, “Yes, I knew,” and again, “If you knew it was wrong therefore why did you do it ?” he replied, “I don’t know why I did it.”

The law governing a case of this kind is to be found in section 28 of the Criminal Code, Chapter 42, which reads as follows:-

“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 in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

“A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the c real state of things had been such as he was induced by the delusions to believe to exist:”

It seems clear from the evidence that the applicant was suffering from delusions in respect of both the matters complained of by him, but in view of his statement the Magistrate that when he struck Jamla he knew that what he was doing wrong, and of the provisions of section 28 of the Criminal Code, we agree the learned trial Judge that he had no alternative but to convict the applicant on the charge of murder; and since it is also our duty to administer the was we find it we must dismiss the application. We, however direct that the applicant be kept under observation by an alienist and that a report on his mental condition be furnished to His Excellency the Governor in Privy Council.

Application dismissed.