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The Court must examine whether at the time of the commission of the crime, the accused could have resisted from carrying out the offence. This was held in Il-Pulizija -v- Arouna Sow decided on 4 December 2020 by Magistrate Dr Monica Vella.

Sow was accused of causing slight bodily harm to 3 persons and breaking the public peace. The Court analysed the evidence. The inspector who prosecuted the case testified and explained that on 27 June 2020 at 11.30 am, the Msida police station received a telephone call that a person had attacked some people in Msida. The police arrested the man. At first, they thought he was under the influence of a drug but at Mater Dei Hospital, the doctors recommended that he be taken to a psychiatrist. In fact, he was taken to Mount Carmel Hospital, and was kept there on a long-term cure. On 8th July the inspector was informed that Sow was being released from hospital and therefore, the police arraigned him. Sow explained at the time of the incident that he felt as though he was flying and that the Prophet Mohammed was giving him instructions.

The prison psychiatrist confirmed that Sow was suffering from mania but was fit to stand trial. The doctor explained that in such cases when the patient is acutely manic, he would also suffer from amnesia and will not remember what had happened. He was of the opinion he did not continue to suffer from the symptoms of mania but recommended that he be kept under observation. He certified that on the day of the incident he suffered from delusions and extreme excitement and acute mania. Sow showed remorse to the doctor for what had happened.

The victims also testified and described how Sow was shouting “Allah hu Akbar” and broke the table and glasses they were sitting on. They were afraid of him. Sow had head butted one of the victims and hit another.

One of the arresting officers, explained that Sow was making strange movements with his head, when arrested.

Magistrate Vella pointed out that the defence had raised the defence of insanity at the time of the commission of the crime. Although this defence had to be made in the beginning of the case, the prosecution has asked for the appointment of experts after the accused was arraigned.

There are two elements for this defence to be successful, the first being the accused was in a state of insanity and that the accused could not resist this. In Sir Anthony Mamo’s notes on Criminal Law, he held this defence is a state of fact of whether the accused had a mental disease or not. At the commission of the crime there was be two elements (a) capacity of intellectual discrimination (b) freedom of will.

The Court quoted from a previous judgment of the Court of Criminal Appeal Ir-Repubblika ta’ Malta -v- Anthony Schembri, which held that the terms used by Article 33 of the Criminal Code “state of insanity” is a legal term and not necessarily equates to a medical term. Therefore, a person can be suffering from a mental disease at the time of committing a crime but will not be in a state of insanity. As such that person will be criminally responsible for his or her actions or omissions. The accused must show at least on the balance of probability that at the time of the incident he or she was not capable of understanding the act he was doing and unable to understand that that act was wrong. Finally, he or she must show that he was unable to resist from doing that act. In Blackstone’s Criminal Practice, 2008 states:

“It can also be seen that to a large extent, whether something is a disease of the mind depends on the consequences it produces – impairment of the faculties of reason, memory and understanding. The disease certainly need not be one primarily located in the brain if it produces the relevant consequences there. Thus arteriosclerosis (hardening of the arteries) causing temporary loss of consciousness is a disease of the mind for these purposes even though it is of physical rather than mental origin…However not every cause of an impairment of these mental faculties is a disease of the mind. A disease is something internal to the accused and s ‘A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.’”

In this case, the court appointed psychiatrist who confirmed that at the time of the incident Sow was suffering from acute mania. Two other doctors confirmed this and held:

“There is good reason to consider that the time of the alleged act Mr. Sow may have lacked mens rea due to florid psychotic state.”

The Court then upheld the defence of insanity and declared that at the time of the incident Sow was not criminally responsible. The Court ordered his release but committed him to Monte Carmeli Hospital for three doctors to examine him and report to the court before his release.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates

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