Everyone is presumed sane until contrary is proved – Olukayode Ariwoola (Continued from last week)

As a result, he submitted that the prosecution failed to prove the charge against the appellant, as required, beyond reasonable doubt. For this argument he relied on the testimony of PW3 and PW4, under examination in-chief and cross-examination, to show that indeed the appellant was of unsound mind when the alleged act of killing took […]

As a result, he submitted that the prosecution failed to prove the charge against the appellant, as required, beyond reasonable doubt. For this argument he relied on the testimony of PW3 and PW4, under examination in-chief and cross-examination, to show that indeed the appellant was of unsound mind when the alleged act of killing took place.
From the evidence of the prosecution’s witnesses, in particular, PW3, the appellant was known from childhood to have exhibited that he has some mental problems. Indeed, immediately preceding the incident in question, the appellant was reported to have, without any justification, resorted to beating his younger sister before he was separated by PW3, their elder brother. Similarly, immediately after the appellant had killed the deceased, he was found outside the house licking the blood on the knife used to slaughter the deceased saying “Allahu Akbar”. What is more, the appellant did not run away or go into hiding. He was found outside and arrested by the police. All these appear rather unnatural and may only show that the appellant even though he actually did the act, but may be incapable of knowing or comprehending the actual nature of the act or that it is contrary to the law.
Perhaps this argument in the appellant’s favour may collapse in the presence of the act of the same appellant in throwing away into the latrine, the weapon of the crime, that is, the knife used to slaughter the deceased. Yet, he was again the person who without being forced led the police to the latrine to recover the said knife. The evidence of the appellant’s misbehaviour before and after the act complained of should be a defence the court of trial was duty bound to consider, even though not directly put up by the appellant as a defence.
It is apposite at this juncture to consider the provisions of Section 51 of the Penal Code which provides as follows:
“Nothing is an offence which is done by a person who at the time of doing it by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to the law.”
My Lords, I am of the view that if the trial court and of course the court below had considered the defence of unsoundness of mind coming from the testimony of the prosecution witnesses and the above provisions of Section 51 of the Penal Code, it may have been clearer to them that the appellant did not seem to be in control of his action.
Ordinarily, it has been held that evidence to establish insanity as a defence should adduce past history of the accused; conduct immediately before killing of the deceased; observation of prison warders who had custody of the accused during trial; medical evidence, reputation and general behaviour on sanity or insanity with relatives in accused’s neighbourhood, and mental health of the accused family. See; Udo Akpan Udofia Vs. The State (1988) 7 SC (Pt 111) 59 at 62.
When considering the evidence available to or adduced by an accused person in his defence of insanity, the court has held the following radical and fundamental points to be important to be borne in mind and kept in view.
(a) The law presumes every person, including any person accused of crime, sane until the contrary is proved (See Section 27 of the Criminal Code).
(b) The prosecution does not set out to prove what the law presumes in its favour.
(c)    An accused person who raises insanity as his defence has the onus of proving such insanity cast on him. The standard of such proof is not as high as that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused.
(d)    Insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities, neurosis and psychosis.
(e)     To constitute a defence, the mental condition relied on should be such that could and did deprive the accused of capacity:
(i) To understand what he was doing; or
(ii) To control his action; or
(iii) To know that he ought not to do the act or make the omission complained of as constitution the actus reus of the offence charged.
As I stated earlier, there was no evidence from the defence on the mental capacity of the appellant, but the only evidence on whether or not the appellant had any mental problem came from the prosecution witness under cross examination. The witness had stated that he knew that the appellant had some mental problem from childhood.
By the above evidence coming from the prosecution witness, it means that the prosecution was aware of the mental imbalance of the appellant. In my view, the appellant no longer had the onus to prove his mental status at the time the incident took place.
In Yahaya Mohammed Vs. The State (1997) 9 NWLR (Pt.520) 169 at 201 this court, per Mohammed, JSC in considering defence of insanity opined that in a murder case where the accused puts up a defence of insanity, the cardinal issue is whether the accused was sane or insane in the legal sense, at the time the act was committed. This is a question of fact dependent upon the previous and contemporaneous acts of the accused. In that case, the court went further to state as follows:
“The appellant by the description of his act at the time of the commission of the offence could not be adjudged to be a person in control of his acts. His behaviour was definitely abnormal. It is relevant to observe that the prosecution had not called any evidence to counter any suggestion that the appellant was not normal and sane at the time he committed the offence. This could be done by putting him under doctor’s observation or that of a prison warder where he was detained pending trial. All these will help in knowing whether the appellant had mens rea to commit the offence charged.”
My Lords, the Investigation carried out by the police before the case was charged to court left much to be desired. With the way the prosecution presented its case and the available evidence, with the greatest respect, the trial court should have found that the provisions of Section 51 of Penal Code is applicable. The verdict of the trial court ought to have been “not guilty for the reason of insanity” hence should have referred him for psychoanalysis in a Psychiatric Unit of a hospital at the pleasure of the Governor of the State. In otherworld’s, the prosecution did not appear to have proved the case beyond reasonable doubt as it should, in view of the evidence of mental imbalance that came from its witness. By the description of his act at the time he committed the offence, he could not be adjudged to be a person in control of his acts. His behaviour was no doubt abnormal and unnatural.
Therefore, the Court below was, in my view, wrong to have held that the appellant understood what he was doing and also knew that what he was doing was wrong and contrary to law. In my view, the behaviour of the appellant immediately before and immediately after the commission of the crime did suggest unsoundness of mind and mental imbalance on his part. The appellant ought not have been sentenced to death as the trial court did. And the court below erred to have affirmed the decision of the trial court.
Accordingly, and in the final analysis, this appeal succeeds in part.
The appellant is adjudged not guilty for the reason of unsoundness of mind. The judgment of the Court below which affirmed the conviction and sentence of the trial Court is hereby set aside.
However, as it behoves the court to protect and ensure the safety of the public and that of the appellant, My Lords, I believe it will not be justice, to say the least, to release the appellant into the society from custody despite his mental status which is adjudged imbalance. The appellant should be ordered to remain in prison custody at the pleasure of the State Governor and be regularly sent for psychoanalysis at a Psychiatric Hospital until he will be certified by a Psychiatric Medical Doctor to be mentally fit to live in the community.
In the circumstance, the appellant is hereby ordered to remain in prison custody and be regularly sent for psychoanalysis until he shall be certified to be mentally fit and safe to live in the community.

Concluded