Question: Using explicit provisions of the law, discuss the circumstances under which an accused person is deemed to have caused the deceased's death.
Homicides
What is a Homicide?
Homicide refers to the killing of one human being by another.
Murder is not synonymous with homicide but a form of criminal homicide, other forms of homicides include manslaughter, infanticide, and suicide pacts that constitute criminal acts.
Section 101 and 102 of the Evidence Act Cap 6 places the onus of proof onto the prosecution as in Woolmington V DPP [1935] UKHL 1.
However, there are exceptional cases where the burden of proof shifts onto the accused.
These situations include where the defendant raises a defense of insanity, voluntary intoxication, and diminished responsibility.
The required standard of proof in criminal proceedings is "proof beyond reasonable doubt" and not beyond the shadows of doubt.
As was evidenced in Uganda v Matovu Vincent [2002] UGHCCRD 12.
Failure to meet this standard entitles the accused person to be acquitted, as in Katimba V Uganda [1967].
The 1995 Constitution of Uganda provides that every person is presumed to be innocent until proved or pleads guilty.
For the two forms of homicides, i.e. Murder under section 188 of the Penal Code Act Cap 120 and Manslaughter under Section 187 of the Penal Code Act.
The prosecution must prove the following ingredients to secure a conviction, and these include;
- Death of a human being,
- The unlawfulness of the death,
- Death accompanied by malice aforethought and,
- Participation of the accused in the causation of death.
Note: All the ingredients of Murder also apply to Manslaughter except for Malice aforethought which is not necessary to be proved in the offense of Manslaughter.
Other forms of unlawful homicides include; Infanticide and Suicide pacts.
The former is sometimes referred to as an offence/defence of infanticide.
Infanticide is established by section 213 of the Penal Code Act Cap 120, which provides that a woman by any willful act or omission causes the death of her child under the age of twelve months.
However, at the time of the act or omission, the balance of her mind was disturbed because of her not having fully recovered from the effect of lactation consequent upon the birth of the child then notwithstanding that the circumstances were such that but for the provisions of this section the offence would have amounted to murder, she commits the felony of infanticide and may for such offence be dealt with and punished for it as if for one had been guilty of the offense of manslaughter of the child.
In R V Borowiec, the accused was charged with two counts of murder concerning the killing of her deceased newborn.
The trial judge held that the prosecution had failed to prove beyond reasonable doubt that the accused was not suffering from an imbalance of the mind and consequently acquitted her of murder and convicted her for manslaughter.
The final form of unlawful homicide is established under Section 195 of the PCA Cap 120.
Suicide Pacts
What is a Suicide Pact?
A suicide pact is a joint agreement between two or more persons having for its purpose the death of all of them.
Section 195(1) of the PCA Cap 120 provides that it shall be manslaughter, not murder, for a person acting in pursuance of a suicide pact between him or her and another to kill the other or be a party to the other killing himself or herself or being killed by a third person.
Section 195(2) of the PCA Cap 120 provides that where it is shown that a person charged with the murder of another killed by the other or was a party to the other's killing himself or herself being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him or her and the other.
This can be seen in the Kibweetere incident which happened in Kanungu.
It is alleged that the accused was acting in pursuance of the pact.
However, the DPP withdrew the case because of the absence of the accused.
Ingredients of Homicides
In summary, the above ingredients of the discussed homicides can be proved in the following ways;
Death of a Human being
This was defined as where there is an absence of spontaneous respiration and cardiac functions ad attempts at resuscitation are considered hopeless, as it was stated in the case of Re: Bowman (1980)
The Unlawfulness of the Death
All deaths resulted from the execution of a lawful sentence of a court of competent jurisdiction, accident, extreme provocation, and that occasioned in defence of self and property.
All other deaths caused are considered unlawful, as stated in Gusambizi s/o Wesonga (1948) 15 EACA 65).
Death accompanied by Malice Aforethought
Section 191 of the Penal Code Act Cap 120 establishes this ingredient of Malice aforethought.
According to Uganda V Okot (2011), it was stated that it is difficult to prove the mental state by direct evidence.
However but such inference can be drawn from circumstantial evidence by considering the weapon used and the part of the victim's body assailed.
The fourth and last ingredient in question; is the
Participation of the Accused Person
In criminal law, the general rule is that liability is personal. One cannot be convicted for an action they have not committed.
In proving the ingredient of participation, the prosecution must prove that the acts of the accused have a causal connection to the deceased's death.
Besides proving the ingredients of homicides, there are other factors that may be used by courts in linking the deceased's death as a consequence of the accused actions.
These factors if proved, continue to elaborate other circumstances under which an accused person is deemed to have caused the deceased's death.
These include;
- Circumstantial Evidence and
- Direct Evidence
Circumstantial Evidence
What is the Last Seen Doctrine?
If the time gap is so small that the possibility of any person other than the accused being the perpetrator of the offence is inconceivable then the accused is deemed to have caused the death of the deceased.
This Last seen doctrine was discussed in Mumbere Julius V Uganda [2018],
In the instant case, the appellant, who was last seen on a motorcycle being carried by the deceased, shortly after that he was seen riding on the deceased's motorcycle alone.
Court held that the time frame between the point they were last seen together and the time the appellant was seen riding alone was so small that the possibility of any person other than the accused being the perpetrator of the offence is inconceivable.
The exact position in Mumbere V Uganda was also discussed in Uganda V Nankwanga Fauza.
What is a Dying Declaration?
In such a case, a person giving evidence might have heard the deceased uttering the accused's name, the deceased left a note with the deceased's name on it indicating that he/she killed him or her or that the accused was seen moving from the direction from where a dying declaration was heard.
In Uganda V Kawooya Muhammad [2014],
Evidence was adduced by a one "Rasta" that he heard the deceased shouting out the accused's name, i.e. "Kawooya onzita", literally meaning Kawooya you are killing me.
Moreover, shortly after that, the accused (Kawooya) was seen moving from the same direction of the dying declaration.
The accused, therefore, was deemed to have caused the death of the deceased.
Direct Evidence
Under direct evidence, testimony that the eyewitnesses adduce, that is to say, those who saw the killing taking place can be used to deem on accused as the one who caused the death of the deceased.
This was evidenced in Uganda V Sowedi Ndosire [1990], where the accused's relatives testified on oath that they saw the accused cutting their father with a panga.
However, the intention was negatived by provocation.
This was also illustrated in Uganda V Abdallah Nabulere.
In addition, S.196 of the Penal Code Act Cap 120, provides other situations in which one may be deemed to have caused the deceased's death even though the acts of the accused were not the immediate and sole cause of such death.
The instances highlighted in this section widen the liability of the accused.
They minimize the chances of the accused escaping liability for causing the deceased's death even if there was an occurrence of certain events in between that might have caused the deceased's death.
However, according to Section 196 of the Penal Code Act Cap 120, a person is deemed to have caused the other person's death, although his or her acts are not the immediate or sole cause of death in any of the following cases. (Legal Causation)
Legal Causation
- Where a Person inflicts bodily injury on another person and during Medical or Surgical treatment, that person dies.
However, the person inflicting the injury is not deemed to have caused death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill.
Such instance is provided for under section 196 (a) of the Penal Code Act.
In this case, it is immaterial whether the treatment was proper or mistaken if it was employed in Good Faith and with Common Knowledge and Skill.
In this instance, the prosecution has to prove the Factual causation that the death of the deceased was due to injuries that were inflicted on him.
This was illustrated in R v Mwagambo S/O Gishodi.
The appellant inflicted two deep and severe wounds upon the deceased who died as a result of sepsis from those wounds.
A medical dresser had stitched the wounds. The medical evidence was to the effect that the wounds would have been drained instead of being stitched, there would still have been a risk of sepsis setting in.
It was held that what the dresser did was unreasonable in the circumstances and did not relieve the appellant of the responsibility of causing death.
Therefore, in this case, it was immaterial whether the treatment was proper or mistaken as it was applied in good faith with shared knowledge and skill; thus was not sufficient to break the chain of causation.
Henceforth the person inflicting the injury was responsible for the death.
Adducing from Section 196 (a) of the PCA it can be seen that the improper or mistaken treatment will be immaterial (as long as it was employed in good faith and common knowledge and skill) will not excuse the accused from liability of causing the deceased's death.
- A person inflicts bodily injury on another person that would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his or her mode of living.
This scenario is provided under section 196(b) of the PCA Cap 120.
It means that the accused who caused the wound or bodily injury is responsible for treating the injury caused to the victim so that he or she discharges him or herself from liability.
Where the victim does not consent to the treatment to cause their death, the accused is not discharged from the liability of causing death.
This was illustrated in the case of R V Blaue. The Defendant stabbed the victim four times after she refused the defendant's sexual advances to her.
The victim who was a Jehovah's witness refused to submit to proper treatment claiming that it was against her beliefs.
It was held that the victim's refusal to submit to proper treatment did not excuse the defendant from the liability for causing her death.
The defendant was convicted
- If by actual or threatened violence, a person causes such person to perform an act that causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused.
This scenario is also provided for under section 196(c) of the Penal Code Act 120.
This illustrates the two principles of criminal law: Causation and Corroboration of events.
Causation is the causal relationship between the defendant's conduct and the result.
At the same time, Corroboration of events is a principle used to link the events in that there should be a correlation between the cause and the event in that remote events cannot be reasonable causes of a happening.
The Test of Foreseeability of a riot is subjected to the case in that one should not have foreseen his conduct as violent to another person.
For example, in the case of R V Pitts, the victim died as a result of drowning after an argument with Pitt.
It appeared that the victim jumped into the river while trying to escape from the argument between them hence the accused was convicted for murder.
- In case of any act or omission, a person hastens the death of another person suffering from any disease or injury apart from such act or omission would have caused death.
This is provided for under Section 196(d) of the Penal Code Act Cap 120. This can be termed as "mercy killing".
This is usually done when the victim is on the verge of death and another person does an act that kills that person.
This circumstance was well articulated in R V Inglis where it was held that mercy killing is murder.
- Where a person's act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons, this circumstance is provided for under section 196(e) of the PCA.
This describes how one's acts can cause the death of him or herself, although he was not to die of the accused's act or omission or someone else's acts.
This is elaborated in the case of People V Lewis, where a bullet shot the victim by the accused, he was to die in one hour, but he cut his jugular vein, which made him die in five minutes hence the victim's actions caused his death.
In Thabo Meli v R, the accused intoxicated the victim and hit him on the head, making him unconscious.
Thinking that the victim was dead, the accused threw him over a cliff, and he died of exposure.
The accused was held liable for the victim's death since his first act of hitting the victim could not cause his death, but it was accompanied by throwing the victim over a cliff which made him die of exposure.
A Year and A Day Rule
Section 198(1) of the PCA Cap 120 provides that a person is not deemed to have been killed another if that person's death does not take place within a year and a day of the cause of death.
This shows that the accused person is responsible for the effect that he or she has caused to the victim up to a period of one year and one day;
However, in the calculation of such days, the day on which the cause manifests is regarded as the first day.
According to R V Dyson, the accused inflicted injuries on a child in November 1906, and again in December 1907, the child died in May 1908.
The accused was indicted for manslaughter. The trial judge directed the jury that they could not find the accused guilty if they considered death caused by the injuries inflicted in November 1906.
The Court of Appeal set aside the conviction holding that "it is undoubtedly is the law of the land that no person can be convicted with manslaughter where the death does not occur within a year and a day after the injury was inflicted for in that event.
According to Section 198(2), which states that such a period is reckoned inclusive of the day on which the last unlawful act contributing to the cause of death was done and when the cause of death is an omission to observe or perform a duty the period is reckoned inclusive of the day on which the omission ceased.
A Year and a Day rule provides for a wide range of the accused's liability because some dangerous acts or unlawful acts do not show their impact on the person as soon as possible.
In R V Mitchell, where the appellant tried to jump the queue at the post office, the older man took issues with the appellant's behavior and challenged him, the older man was hit by the appellant made the man fall back hitting an elderly lady.
She broke her leg, she later died, and the appellant was convicted of manslaughter due to the proof that the period of one year and one day subsisted from the day the injury started affecting the old lady.
This is as well supported by Section 198(3) of the PCA, which states that when the cause of death is in part an unlawful act and in part an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the last unlawful act was done or the day on which the omission ceased whichever is the latter this ascertaining that the performance of the act or omission whichever turn causes death its impact should be drawn from the time the impact of the omission or act is manifested.
In a nutshell, this article discussed situations in which the accused will be deemed to have caused the deceased's death.
These include; proving the ingredients of homicides such as murder, manslaughter, suicide pacts, infanticides among others.
In addition, the accused may be deemed to have caused the death of the deceased through assessment of Direct evidence i.e witnesses, dying declaration, and the last seen doctrine.
Circumstantial Evidence and also through Legal Causation which looks at the instances where the accused will not escape liability of causing the deceased's death considering the legal elements of legal causation as discussed in Section 196 of the PCA Cap 120.
Summing up, the Year and a Day rule has been discussed mentioning the period in which the accused will not escape liability for causing the death of the deceased constituting the day on which the act or omission of causing the death of the deceased was committed by the defendant.
Section 189 of the Penal Code Act provides that a person convicted of murder shall suffer death.
Article 22 provides that every person has a right to life and it shall not be deprived intentionally except in the execution of a sentence in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.
However, the mode of execution of the death penalty as provided for under section 99(1) of the Trial on Indictment Act was challenged in the case of Suzan Kiggula and 417 Ors v Attorney General as it was inconsistent with Articles 23(1), 22(1), 24, 28, 44(a) and 44(c) of the Constitution.