[1950] EACA 503

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President) and BACON, Justice of Appeal

### YERIMIA KALIMEDO, Appellant (Original Accused)

# REGINAM, Respondent

### Criminal Appeal No. 79 of 1956

(Appeal from the decision of H. M. High Court of Uganda, Lewis, J.)

Practice—Trial Judge calling for all police statements.

The trial Judge had noted at the beginning of the Crown case that he had the police statements before him and it appeared that he had used those statements for the purpose of cross-examination.

Held (12-4-56).—The practice whereby a Judge calls for the police statements at the beginning of a trial is to be deprecated. While a Judge may, if he considers that there may be a material discrepancy between a witness's evidence and his statement made during the investigation and the accused is not legally represented, call for the statement and use it<br>as material to test the credibility of the witness, as it may contain inadmissible and<br>prejudicial matter the Judge might as a

Appeal allowed, not on grounds reported.

No cases.

Appellant in person.

### Dickie for respondent.

JUDGMENT (prepared by WORLEY, President).—This appellant was charged before the High Court of Uganda sitting at Fort Portal and was convicted of the manslaughter of one of his wives named Ondilia. The appellant admits that he killed the woman by throwing a spear which struck her in the thigh but he has consistently alleged that her death was caused by accident or mistake. His story was that at about 10.30 p.m. he was walking towards his home along a narrow footpath when he heard a noise. He called out four times but received no answer and thereupon threw a spear, thinking that he was throwing it at an animal. His story was confirmed by the second prosecution witness who was his second wife and it received further support from the evidence of one Isaka to whom the appellant made an immediate report and from the evidence of one Musa who testified that the dying woman told him that the appellant had speared her by mistake. Both these witnesses said that the appellant appeared to be distressed. The learned trial Judge, however, rejected this story, partly because the woman's body was found lying with its feet on a well-used path and not entirely in the banana shamba where the other wife said that she and the deceased were hiding; and partly because he thought that the medical evidence as to the direction of the wound in the body was inconsistent with the accused's story of having thrown a spear at an animal lurking on the ground. With respect we are unable to agree that either of these points was sufficient to justify the rejection of the story told by the Crown witnesses and by the accused. As to the position of the body the evidence did not exclude the possibility that the dead woman, Ondilia, may have moved a few paces before she died, nor indeed does it exclude the possibility that someone had moved the body before it was seen by the witnesses lying partly on the path. As regards the direction of the wound in the body, this also is not necessarily inconsistent with the accused's story as the direction must have depended upon the actual position of the deceased woman at the time she received the injury, as to which there was no precise evidence.

We observe also that the learned Judge thought that the appellant's second wife who was with the deceased when she was killed was "keeping a lot back". That may have been the case but doubt as to her credibility did nothing to help establish the case for the Crown. We also observe that the learned Judge inferred from the fact that the appellant elected to say nothing at his trial that "he had something to hide and so was afraid of being examined". He thought this was inconsistent with the defence of mistake. It is, of course, open to a trial Judge to draw an inference adverse to the defence from the fact that the accused has elected to say nothing or has elected not to give evidence on oath; but we think that the inference in the present case was hardly justified. The appellant was not represented at his trial and the position was that the Crown had proved and read out the cautioned statement made by the appellant on 9th August when charged by the police with the offence. In that statement he put forward the defence of accident. He had heard this statement read out at the trial and supported by the evidence of the Crown witnesses and in these circumstances he may well have thought that there was no further need for him to repeat his story. Indeed had he been legally represented a submission of no case to answer might well have succeeded.

Both the assessors were of opinion that the death was accidentally caused, and before us Mr. Dickie for the Crown respondent has not sought to support the conviction. For all these reasons we allowed the appeal and quashed the conviction and sentence passed on the appellant.

We have one further comment to make on this trial. We observe from the record a note by the learned Judge made at the beginning of the Crown case to the following effect "Police statements before me", and it would seem from questions put to at least one of the Crown witnesses that the learned trial Judge made use of those statements for purposes of cross-examination. We have no doubt but that the learned Judge asked to be supplied with copies of statements made by the witnesses to the police in the course of investigation solely with the object of assisting the defence of the accused. We think it right, however, to say that we deprecate any practice whereby a trial Judge calls for the whole of such statements at the beginning of a trial. If, during the course of the trial, a Judge has cause to believe that there may be a material discrepancy between a witness's testimony and the statement made in the course of investigation and the accused is not legally represented, we see no objection to the Judge calling for the statement in question and using it as material to test the credibility of the witness. But it is well known that such statements often contain inadmissable and prejudicial matter and the Judge might well, as a matter of precaution, first inquire of Crown Counsel whether any embarrassment is likely to follow from his seeing such a statement.

We need only add that these remarks on statements made to the police are not intended to apply to the depositions of the witnesses taken at the preliminary inquiry.