46 TANZANIA LAW REPORTS [1980) TLR

AGNES DORIS LIUNDI v. REPUBLIC (M USTAFA, J.A.)

AGNES DORIS LIUNDI v. REPUBLIC

(CoURT OF APPEAL OF TAN Z ANIA AT DAR ES SALAAM (Mustafa, Mwakasendo and Kisanga, JJJ,A.)]

CRIMINAL APPEAL 82 OF 1979

Evidence-Insanity-Mental stress-Letters imply innocence and punishment relating to the killings-Whether

appellant did not know what she was doing was, wrong.

Sentence-Of death-To be passed on one count

The appellant was charged with and convicted of the murder of three of her children by the High Court.
On appeal it was argued on her behalf that the trial judge did not give adequate consideration to the point
raised by the defence that the appellant did not know that what she was doing was wrong although· she
knew what she was doing.
 < ',A. REPUBLIC v. AGNES DORIS LIUNDI (MAKAME, J.) 47

Hel9 : (i) the plea in the four letters left behind by Accused that the police should not take action against
hor husband, that he should not be punished and was innocent clearly implied that the appellant knew what
11he was doing was wrong, and she wanted to make clear that her husband had nothing to do
with her wrongful act, which was hers alone;
(ii) sentence of death should only have been passed on one count, the convictions on the other two
oounts being allowed to remain in the record.

Appeal dismissed.

Cases referred to:

(l) Nyinge Siwato v. R [1959] E.A. 974.
(2) MbeJukie v. R [1971] E.A. 479
,J 11dcja for the appellant.
March 10, 1980. • MUSTAFA, J.A., read the ·following considered judgment of the court: This is a
(Jttgic case. The appellant was charged with and convicted of the murder of her three children by
lhc High Court at Dares Salaam and is now appealing against the conviction.
The facts, briefly, and they are not now in dispute, are as follows. The appellant was married to
Ooerge Liundi in February, 1967, and after about two years of happy mairied life, their mutual relationship
doter iorated and there was constant acrimonious bickering. One reason for the bickering was the
obsessional belief by her husband that the appellant had perhaps been unfaithful to him. During such
fomcstic strife the appellant had been chased out of the matrimonial home. The appellant had an unhappy
nod insecure childhood as her mother died when she was very young, and she developed a high sense of
lnsccurityfromaveryearlyage. Aboutaweekbeforethekillingtherewasaparty which was attended by both
I he appellant and her husband. At that party the husband met an individual whom he suspected had been
tile appellant's lover. The old antagonisms were revived and serious quarrel erupted between the appellant
!Hlc,1 her husband. • The result was that on the morning of 21st February, 1978, the husband told
the appellant to leave the matrimonial home, and that if on his return from work she was still there, he
wuuld throw her out naked. Her four children were with her at the house. After her husband's departure
i.ho drove to town and purchased some bottles of insecticide. She called her four children into her bed
fO(}nt and administered to each of them a drink made up of orange squash and insecticide. She had closed
hor bed room door. Her domestic helper P.W.l Ramadhani and another person Bibie, heard the children
orying. Shortly thereafter the appellant opened the bed room door, and she asked Bibie to wash
the youngest child who was vomiting, retching and purging. The appellant refused permission to P.W.l
and Bibie to use the house telephone to inform her husband of the situation. P.W.l then saw tke other
lhroo children vomiting and purging and in a bad way. The appellant in the meantime had gone off to
11nothcr room. When neighbours came in response to P.W.l's callfor assistance, P.W.l went to the room
Where the appellant was and asked the appellant what had happened. She said "Ramadhani, leave me to
tlio with my children because Baba Taji [her husband] doe!) not like me." It transpired that she had also
drunk the poisonous concoction she had given to her ·children. They were an· rushed to hospital, and·
three of her children died, but she and her eldest child were saved by the doctors. It was medically estab-
littltod that the three children had died of poisoning, as a result of the drink administei-ed to them by the
illlpcillant.
The appellant had written four letters all dated 21st February, 1978, and left them in the house, clearly
j11i.t before or at the time she administered the poison to her children. These letters were recovered by the
polk:o and exhibited in court. Three letters were worded identically and addressed "To whom it may
ooncern?' and one was to one Mama Gaudensia, a friend of the appellant. We think it will be convenient to.
~ 1,t out a letter (one of the identical three) in full. It reads:-
c/o Box 9050,
DAR ES SALAAM
21/2/1978
TO WHOM_ IT MAY CONCERN

The decision I had taken is a permanent one, George my husband should not be
disturbed or tortured, or confronted in any way because I loved him. I had taken
 48 TANZANIA LAW REPPORTs· [1980] TLR

the children because I didn't want themto suffer like I had suffered. Solitariness
frightens. George my husband you didn't know how much I loved you when I was
alive. But now you understand.

TO POUCE OFFICER

Please don't take any a<;tion against my husband because he is innocent.

I

After her arrest the appellant was under the medical care of Dr. Haule, a well qualified m~dicaj psychia-
trist attached to the Muhimbili Hospital. He submitted a medical report on the appellant's condition and
testified in court. In brief his opinion was that at the time of the act the appellant knew what she was doing,
that is, that she knew she was killing her children by administering poison, but that she did not know that
.she was doing wrong.
It will be convenient af this stage to set out the provisions of ss. 12 and 13 of the Penal Code which.
:relate to the issue of insanity. They read as follows:-

S. 12. Every person is presumed to be of sound mind, and to have been of sound
mind at any time which comes in question, until the contrary is proved.
S. 13. 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 through any disease affecting his mind
incapable of understanding what he is doing, or of knowing that he ought not to do
the act or make the omission.
But a person may be ciiminally responsible for an act or omission although his
mind is affected by disease, if such disease does not in fact produce upon his ·mind
one or other of the effects above mentioned in reference to that act or omission.
Dr. Haule in his evidence and medical report, made the following points. When he first saw
the appellant shortly after the incident, the appellant was abnormal and did not seem to care. "It was· as
if I was talking to a tree", Dr. Haule said. In his opfoion it was possible that the appellant was abnormal
two weeks or so before the incident, and that the appellant knew what she was doing when she administered
poison to her children, but did not know she was doing wrong. He referred to the marital strife she went
through, the sort of person she was and her upbringing and her almost pathological dependency on and
obedience to her husband. He was of the view that when she took action to kill herself and her children
she believed she was ordered to do so by her husband. He said he had read the letters she had left behind,
but 1hey did not change his views on this score. At one stage he said she was not suffering from delusion,
but later on he said she was in that, he said "She was deluded, that is she felt what she was doing was morally
acceptable". . He said that at the time of the trial in the High Court, about a year after· the
event, the appellant's condition had improved, in that she would know what she did was wrong, butthat she
was still under psychiatric treatment.
The appellant had made a long extra-judicial ~tatement which was admitted at the trial. It was tnade
on 3rd April, 1978, about two months after the event. In it she gave a history of her childhood,
the difficulties she went through as a result of the death of her mother and the bad treatment metted 0ut to
her by her step-mother and the loneliness she experienced. She talked of the two-year period of happiness
of her marriage and of the later trouq_le. She said the trouble started after she alleged she had been raped
by a brother of one of her friends, resulting apparently in her infecting her husband with V.D. She dared
not tell her husband of the rape incident for a long time but eventually did so. She recounted the res\llting
domestic bickering culminating in the flare up on 21st February, 1978. When her husband left that morning
., she got confused and started thinking of her childhood and felt she had nowhere to go. She saw her husband
as her mother, father, brother and sister and that she felt her whole life depended on him. She went out
and bought some insecticide and returned home. She tried to sleep but failed, and still could not· find a
solution to her problem. She then decided to drink the insecticide. She said, inter alia:-

I was angry and anxious about the problems between me and rr,iy husband. Indeed I
thought whether these problems were mere threats as he had even reached a stage of
•chasing me out. A thought came to me that I should finish (kill) myself and leave
the children alive. But again I tried to remember how I got problems du,ring my
childhood where I led lonesome life and questioned myself whether my children were
 C.A. REPUBLIC v. AGNES DORIS LIUNDI (MAKAME, J.) 49

again going to lead such life staying with a step mother. Sin~e my husband said if
I left I should not leave the children I took them to my bedroom and locked the door.
And I told them 'We are leaving'. They asked 'Where are we going'? I answered
them 'We are travelling but where we are going we do not know'. I kissed them
and they also kissed me, shook hands and bid good-bye to everyone. I gave to each
child that mixture, each in his own cup, and I took mine from a glass. We then
vomited. Because of that I decided to take (drink) some iodine, I took also some
ground bottles and locked myself in another bedroom. From that time I became
unconscious, knew nothing about what happened immediately thereafter.

The trial Judge dealt with the defence of insanity put forward at the trial. He analysed the evidence
ttdduced for the prosecution and the defel).ce, . especially the evidence of Dr. Haule. He came to
the condusion that the appellant, when she committed the offence, although undet great stress, was of
iurnnd mind and legally sane, that is, she knew what she was doing and knew that she ought not to have
done the act.
Mr. Jadeja for the appellant, has attacked the trial Judge's conclusion. He concedes that at the time
of lhe commission of the act, the appellant knew what she was doing. He submitted that at that time she
ifid not know she was doing wrong. He relies primarily on the opinion of Dr. Haule. He submitted that
lho trial Judge over-emphasized one aspect of the issue of insanity-that the appellant knew what she was
doing, but gave no or no sufficient consideration to the other aspect, whether she knew she was doing
wrong. He submitted that an insane person can rationally carry out all the steps to cause death
fill the appellant had done, and yet would not know that the act was wrong. He contended that the trial
J u.dgc was only directing his mind to the question of malice aforethought, preparation and premeditation
1tnd awareness on ~e part of the appellant that the administration of poison to the children would cause
death. All these factors go to show the aspect that the appellant knew what she was doing, not necessarily
that she knew was doing wrong.
However the trial Judge was clearly influenced by the contents of the four letters left behind by the
ttppellant, and which were written contemporaneously with the action she took on 21st February, 1978.
The letters clearly indicate that she knew she was doing wrong, doing something she ought not to do. In
the letter we have quoted earlier in the judgment, she pleaded that her husband should not be punished or,
tortured for what she did; indeed there was a plea to the police not to take action against her husband
hecause he was innocent. The idea of punishment and innocence in the letter clearly implies that she knew
what she was doing was wrong, and she wanted to make clear that her husband had nothing to do with her
wrongful act, which was hers alone. She knew that if her husband was associated with her action, he would
imffer punishment, punishment for doing a wrongful act.
It is true that Dr. Haule had stated that despite the letters he was of the view that the appellant did not
know she was doing wrong. He testified that the letters indicated to him that the appellant was over-,
dependent on her husband, an almost pathological relationship. If we understand Dr. Haule correctly
he was perhaps saying that the letters had some conne~tion with the appellant's belief that she was being
ordered to kill herself and her children by the husband. Incidentally the appellant never said she had that
belief; it was a deduction made by Dr. Haule. Even if the letters indicate over-dependence on her husband,
they still show knowledge on the part of the appellant that the action was wrong, as inviting punishment.
Like the trial Judge, we however are unable to connect the letters with the belief or delusion that Dr. Haule
said the appellant had of being ordered by her husband to kill herself and her children.

The trial Judge in his judgment, stated inter alia:-

Dr. Haule appears to me to be an experienced and highly qualified psychiatrist. He

is, among other things, a Member of Royal College of Psychiatrists and has a Diploma
in Psychiatric Medicine (England). I would therefore pay due respect to his profe-
ssional views and would accordingly be slow to reject his evidens:e. I am also live
to the fact that even though it is for an accused person to show that he was at the
material time insane it is enough if he shows this on a mere balance of probability.
The accused must show, on all the evidence, that insanity is more likely than sanity,
though it may be ever so little more likely. The settled authority f'or this is the oft-
quoted case of Nyinge Siwato v. R., (1959] E.A. 974, followed so many times, including
 50 TANZANIA LAW REPORTS [19.80] TLR

in Mbeluke v. R. [1971] ·E.A. 479. That -said however, I have also to keep in
mind that, as Windham J.A., as he then was, said in Siwato's case, 'The Court is not
bound to accept medical testimony if there is good reason for not doing so'. At the
end of the day, that is, it remains the duty of the trial Court. to make a finding and,
in doing so, it is incumbent upon it to look at, and ~sess, the totality of the evidence
before it, including that of medical experts.

With respect, we are in agreement with the views expressed in that passage. The trial Judge
then analysed the evidence and concluded that the appellant was sane.
It is possible, indeed likely, that our law on the issue of insanity is antiquated and out o_f date. Dr.
Haule in evidence said that in modern psychiatry the distinction between insanity and diminished responsi-
bility is under controversy because it is imprecise. Parliament, in its wisdom, may wish to amend this
particular branch of the law and bring it into line with modern medical knowledge on the subject. Other · !
jurisdictions, including one at least in East Africa, have done so. But as the law now stands, we are of
opinion that the trial Judge has come to the right conclusion.
The appellant was convicted on three counts of murder. Sentence of death should only have been
passed on one count, the convictions on the other two counts being allowed to remain in the record.
We accordingly amend the sentence to refer to the conviction on the first count only. • I

Apart from the above correction, we dismiss the appeal. .,l

·1
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' ~
Appeal dismissed
.,
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