Akunaay v Rex (Criminal Appeal No. 220 of 1951) [1951] EACA 307 (1 January 1951)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and SIR HECTOR HEARNE, C. J.

HANDO s/o AKUNAAY, Appellant (Original Accused)

REX, Respondent

Criminal Appeal No. 220 of 1951

(Appeal from decision of H. M. High Court of Tanganyika—Knight, J.)

Accused charged on two counts, first count attempted murder, second count wounding with intent—Equivocal plea—Conviction on second count.

The appellant was charged before the Tanganyika High Court on an information containing two counts, the first of attempted murder and the second wounding with intent *contra* to section 222 (1) of the Tanganyika Penal Code.

Accused pleaded: "I attacked the woman with a panga because I had divorced her and she would not return my bride price. I admit I should have gone to the Court and complained against her. I did wrong, but I did not intend to kill her". He was convicted on his own plea of the offence alleged in the second count and was sentenced to seven years' imprisonment with hard labour.

It was conceded by Crown that the plea was not an unequivocal admission of an offence *contra* section 222 (1) of the Tanganyika Penal Code.

Held $(11-12-51)$ .—The plea is not anything more than an admission that the appellant is guilty of unlawful wounding and is not an admission that he had in fact unlawfully caused grievous harm.

Appeal allowed: Sentence reduced to three years' imprisonment with hard labour.

Appellant absent, unrepresented.

Sir James Henry, Ag. Solicitor General (Tanganyika), for Crown.

JUDGMENT.—The appellant in this case was charged before the High Court of Tanganyika on an information containing two counts. The first count was attempted murder, and the second count wounding with intent, contrary to section 222 (1) of the Tanganyika Penal Code.

On the information being read over to him at his trial he made the following plea: "I attacked the woman with a panga because I had divorced her and she would not return my bride price. I admit I should have gone to the Court and complained against her. I did wrong, but I did not intend to kill her". The learned trial judge thereupon convicted the appellant on his own plea of the offence alleged in the second count, and the Crown entered a nolle prosequi in respect of the first count. Subsequently the Judge passed a sentence of seven years' imprisonment with hard labour.

Sir James Henry has conceded that the plea cannot properly be regarded as an unequivocal admission of an offence against section 222 (1) since it does not contain an admission that the appellant intended to do grievous harm to the woman. He suggests, however, that it is, an admission of an offence against section 225, since the appellant has admitted that he wrongfully attacked the woman with a panga. In our view, however, the plea cannot in fact be regarded as anything more than an admission that the appellant is guilty of unlawful

wounding, for it is not an admission that he had in fact unlawfully caused. grievous harm. The point is no doubt a technical one, but so far as the appellant. is concerned it is most material because if he could not be properly convicted on. this plea of any offence greater than that of unlawful wounding, then the sentence passed on him is four years in excess of the maximum permissible. This case is. a good illustration of the need for the greatest care being taken where the plea of an accused person appears to amount to a plea of guilty.

As has been said before by this Court, before convicting on any such plea. it is highly desirable not only that every constituent of the charge should be: explained to the accused, but that he should be required to admit or deny every such constituent.

We have no option in this case save to set aside the conviction under section. 222 (1) and to substitute therefor a conviction under section $228$ (1).

The appellant's assault on his ex-wife was a brutal one, and it was indeed. fortunate for him that she was able to receive such skilled medical attention. This is, accordingly, a case where the appellant certainly deserved the maximum punishment permissible.

The sentence already passed upon him is set aside and he will serve a sentence: of three years' imprisonment with hard labour.