[1951] EACA 251

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill, President, Sir Newnham Worley, Vice-President, and LOCKHART-SMITH, J. of A.

#### SWETA s/o AJWANG, Appellant (Original Accused)

v

### REX, Respondent (Original Prosecutor)

# Criminal Appeal No. 129 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya—Windham, J.)

#### Criminal Law—Evidence—Extra-judicial statement by the accused—Objection by defence to admissibility of statement—Voluntariness of statement—Practice.

The appellant was convicted of murder by the Supreme Court of Kenya. In the course of the trial, the prosecution sought to put in evidence an extrajudicial statement amounting to a confession made by the accused before a Magistrate who was called to produce it. After cross-examination of the Magistrate, counsel for the defence objected to the admission of the statement on the ground that it was not made voluntarily. The trial Judge, after hearing counsel for the prosecution and defence, ruled that the statement had been made freely and voluntarily. In the course of the ruling, counsel for the defence further objected that before a ruling was given on the admissibility of the statement, the evidence of the accused on the issue ought to be taken. The Judge held that the accused could be heard on the issue in due course, but not before the close of the prosecution.

- Held $(24-8-51)$ .—That the question of the voluntary character of a confession is one to be decided by the trial Judge, who must, however, before deciding it, hear the evidence on the issue not only of the prosecution but also of the accused. The trial judge gave reasons in his<br>judgment which, in the circumstances of the case, justified a finding that the statement<br>was voluntarily made, but as it was admitted at data before him, it must be excluded. The evidence apart from the statement which the learned Judge accepted, was, however, sufficient to support a conviction. - Cases referred to: R. v. Njarura XI E. A. C. A. 59; R. v. Petero Mukasa and Another XI E. A. C. A. 114 approved.

Appeal dismissed.

Appeal against conviction.

A. H. Malik for the appellant.

Todd, Crown Counsel, Kenya, for the Crown.

JUDGMENT.—This is an appeal from a conviction of murder by the Supreme Court of Kenya. As we have already informed the appellant his appeal must be dismissed because there is ample evidence that the appellant killed the deceased under circumstances that provide him with no defence in law to the charge of murder. During the course of the trial the learned trial Judge admitted an extrajudicial statement made by the appellant before a Magistrate without due regard to the fact that objection had been taken by the appellant's counsel to the voluntary character of the statement. As we shall show even had this statement not been admitted there was still evidence before the learned Judge on which he must have convicted the appellant of murder, nevertheless the procedure adopted on this occasion constituted a departure from well settled practice and it is essential that we should refer to it.

Evidence was given by Mr. Purves, a Second Class Magistrate, that after the appellant had been arrested following the death of the deceased he was brought before him handcuffed by a police constable. Mr. Purves asked him if he wished to make a statement and he replied that he did. A statement was recorded by Mr. Purves who tendered it in evidence. After cross-examination of the witness Mr. Malik for the defence objected to its admission on the ground that it had not been made voluntarily. After hearing Mr. Malik and the Crown Prosecutor the learned Judge said that he was satisfied that the statement had been made freely and voluntarily. During the course of the learned Judge's order Mr. Malik quite properly pointed out that before ruling on the question of admissibility the evidence of the appellant should have been taken. The Court then ruled that the accused could be heard in due course but not before the close of the prosecution. The assessors who had been sent out of the Court during the submissions of counsel then returned and the appellant's statement was put in and read.

The statement was in fact a confession and the learned trial Judge erred in coming to the conclusion that it was a voluntary one on the evidence of Mr. Purves alone without hearing the evidence of the appellant since the question of its voluntary character had been put in issue by the defence. In Rex v. Niarura XI E. A. C. A. 59 this Court ruled that when it is alleged that a confession has been procured by improper means the Judge, who for this purpose, is the tribunal of fact as well as law, should hear the evidence of both sides, including that of the accused if tendered, as to the alleged inducement before deciding on the admissibility of the evidence. Again in Rex v. Petero Mukasa and Another XI E. A. C. A. 114 this Court again emphasized that when the voluntary nature of a confession is challenged the Judge must take evidence as to the circumstances in which it was made, including the evidence of the accused if tendered. In the instant case after the admission of the statement and the close of the case for the prosecution the appellant elected to give evidence during the course of which he deposed that he never told anyone that he wished to make a statement. That he was taken by the police before the Magistrate handcuffed. That the Magistrate plied him with questions, that he was upset and frightened and that answers were recorded which he had not given at all. The learned Judge quite properly in his summing up to the assessors told them that if they believed this evidence or had any reasonable doubts on the matter they should disregard the extra-judicial statement altogether. With respect he overlooked that before admitting the statement and allowing it to be read to the assessors he should have had the appellant's evidence before him in order that he could judicially exercise his discretion in deciding whether to exclude or admit it. It is for the trial Judge to decide whether a statement has been made under such circumstances that its voluntary character is suspect or not suspect and this decision must be made before its admission. If it is admitted, it is still nevertheless open to the jury or assessors where the statement implicates the person accused and he gives evidence in explanation to accept that explanation. In his judgment the learned trial Judge has given valid reasons why he believed that the applicant's statement was in fact a free and voluntary one and why he accepted it as representing the truth as to the circumstances which led the appellant to attack the deceased. He was fully justified in coming to this conclusion in the light of the evidence of the Magistrate and because the statement corroborated the evidence of eye-witnesses of the crime. The position still remains, however, that the statement should not have been admitted on the incomplete data then before the learned Judge, and for that reason we have excluded it from our consideration of the case. Mr. Malik has attacked the admission of the statement on other grounds as well, but it is unnecessary for us to consider these since the statement must be excluded on the sole ground that there was no proper determination by the learned Judge before its admission on the issue as to its voluntary character. As we have already

said, however, there was evidence which the learned Judge accepted as he was entitled to do which established that there was no immediate antecedent provocation offered to the appellant by the deceased.

Even had the learned Judge and the assessors felt any doubt as to the truth of the evidence of the two eye-witnesses, Mweka and Akech, who deposed that immediately before the killing the deceased said nothing to the appellant, the appellant's own evidence if believed established nothing more than that the deceased pointed a baton at him and uttered some kind of threat mixed with abuse. Such provocation if it occurred was most certainly not grave enough to provide the appellant with any excuse for what he did. According to the medical evidence the deceased must have died almost at once as the back of his neck was cut to the spine by the *panga* wielded by the appellant.

One further submission has been made by Mr. Malik namely that there was no proper evidence tendered as to the identification of the body. It is true that the medical witness, Dr. Arnell, who examined the deceased's body and gave evidence as to the cause of death, did not identify the African clerk who gave her the name of the deceased and this person was not asked if he could identify the doctor. He did give evidence, however, that he had identified the body to a European lady doctor as that of the deceased. Taking the evidence as a whole there can be no doubt at all that the evidence as to the nature of the injuries received and the cause of death given by Dr. Arnell related to the body of the deceased and none other.

The appeal is dismissed.