[1956] EACA 20

# APPELLATE CRIMINAL

### Before RUDD and FORBES, JJ.

### MOHAMED ALI AND ANOTHER, Appellants

# THE QUEEN, Respondent

### Criminal Appeals Nos. 201 and 202 of 1956

Criminal Procedure and Practice—Evidence of extra-judicial statements made by accused—Accused should be asked before evidence is admitted whether he disputes admissibility-lf accused disputes admissibility issue of admissibility must be tried before evidence of statement is admitted.

The accused were two of three persons charged jointly with robbery with violence. Each was alleged to have made an extra-judicial statement to an inspector of police in which he sought to exculpate himself, and to throw the blame on to the other two, but in which he admitted knowledge of the incident. The trial magistrate allowed evidence to be given of these statements without first asking the accused whether they intended to object to their admission. The accused subsequently repudiated the statements. The statements constituted a material part of the evidence on which the magistrate relied in finding the accused guilty.

The accused appealed on the grounds that the evidence of the statements should not have been admitted until it had been proved by the prosecution that they were made voluntarily.

Held (29-8-56).—(1) That before evidence of an extra-judicial statement is admitted the Court<br>should ask the accused whether he intends to dispute its admissibility. This applies to exculpatory statements as well as to confessions.

(2) That, if the accused states that he intends to object to the admissibility of the statement, the Court must try the issue of admissibility before deciding whether or not to admit the evidence.

Appeals allowed; convictions and sentences set aside.

Rauf for appellants.

Charters, Crown counsel, for the Crown.

Cases cited: Israeli Kamukolse and others v. The Queen, E. A. C. A. Cr. App. Case<br>No. 550 of 1955; Kinyori v. The Queen, Cr. App. No. 551 of 1955; Ibrahim and others<br>v. The Queen, (1953) 20 E. A. C. A. 185, 187.

Reported by: I. R. Thompson, Esq., Resident Magistrate.

JUDGMENT.—The two appellants, whose appeals we have consolidated, together with one Wairo s/o Gandera, were tried jointly before the resident magistrate, Nairobi, on charges of robbery contrary to section 291 of the Penal Code. The first appellant, Mohamed Ali, was convicted on each of two charges of robbery, while the second appellant and Wairo were convicted on the second of such charges only.

At the trial evidence was given of extra-judicial statements made by each of the three accused. These statements were clearly not confessions, but were selfexculpatory statements in which each of the accused sought to throw the blame upon the others. The learned magistrate properly directed himself that the statements were not evidence against a co-accused, but he did rely on the statements to confirm the evidence of the two complainants that they had been victims of robbery.

$\mathbf{v}$

These statements were retracted at the trial, and the principal ground of appeal is that "the learned magistrate erred in law in admitting the statements as voluntarily made by the appellants without first asking the appellants' objections to them and taking their evidence on oath".

It appears from the record that these statements were admitted in evidence and read without the accused (who were unrepresented) being asked whether they intended to object to their admissibility, and that it was only in crossexamination of the officer who produced the statements that the allegations that the statements had been obtained by ill-treatment emerged.

The proper procedure to be followed in regard to the admission of extrajudicial statements in evidence in trials before Magistrates' Courts was considered recently by the East African Court of Appeal in Israeli Kamukolse and others v. *The Queen,* Criminal Appeal No. 550 of 1955 (unreported), where it is stated:

"Lastly, we must point out that although, as already stated, every one of the accused present at the trial objected to the admission of statements alleged to have been voluntarily made by them to Inspector Manohar Singh Sandu (who was the investigating officer) and in the case of the first and second appellants, to Inspector Musoke, yet in no case did the learned magistrate try the issue of admissibility by the procedure known as "a trial within a trial". In every case he appears to have admitted the statement in evidence and had it read without first asking the accused whether they intended to object to its admissibility. The accused could, therefore, only cross-examine on their allegations of ill-treatment and inducement after the statement had been admitted and could only give evidence in support of their allegations after they had been called on for their defence, thereby exposing themselves to cross-examination on the general issue. The procedure to be followed by all trial courts where an issue of admissibility of such a statement is raised was recently considered at length by this Court in Kinyori v. The Queen, Criminal Appeal No. 551 of 1955 (unreported). Although in a Magistrates' Court there is neither jury nor assessors the onus is still upon the prosecution to show that any statement made by the accused and tendered in evidence was voluntarily made and the Court must satisfy itself on that issue before admitting the statement."

It was argued that under section 24 of the Indian Evidence Act only "confessions" obtained by means of an inducement are excluded from evidence, and that since the statements in this case were not confessions they were properly admitted notwithstanding the allegations that they had been obtained by illtreatment. The procedure laid down by the East African Court of Appeal in Kinyori's case, however, is expressly stated to be applicable to the question of the admissibility "of any extra-judicial statement, or part thereof, made by the accused either in writing or orally." Since in this case the learned magistrate did not consider the question whether or not the statements made by the accused persons were voluntary before the statements were admitted in evidence, we are of opinion that they were improperly admitted.

It remains to consider whether the failure of the learned magistrate to follow the correct procedure warrants our interference with the convictions recorded against the appellants. As we have already noted, the learned magistrate did rely on the statements for the purpose of his finding that the alleged robberies had, in fact, taken place. The evidence was to the effect that both complainants were drunk at the time the robberies were alleged to have occurred, and it is by no means clear from the judgment that the learned magistrate would, in the absence of the statements, have accepted their evidence that they had been the victims of robbery. The statements, therefore, constituted a material part of the evidence on which the learned magistrate relied. Unfortunately, it does not appear from the judgment that even at that stage the learned magistrate applied his mind to the question whether or not the statements were voluntary. Had he done so we should have been disposed to hold under section 381 of the C. P. C. that the irregular admission of the statements had not, in fact, occasioned a failure of justice. (Ibrahim and others v. The Queen, (1953) 20 E. A. C. A. 185 at page 187.) There is, however, no finding whatever on the point; nor do we feel able to say from the record that, had the learned magistrate followed the correct procedure, he must inevitably have come to the conclusion that the statements were voluntary.

In the circumstances we have reluctantly come to the conclusion that the appeals must be allowed and the convictions set aside.