[1950] EACA 521

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

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

### (1) ISRAELI KAMUKOLSE, (2) BENBATULA BUKULU, (3) ONESIMO NSEREKO, (4) WILSON KATENDE, (5) MATIYA SEMBATIA, (6) HUDU MWERA, Appellants (Original Accused)

# REGINAM, Respondent

### Criminal Appeal No. 550 of 1955

(Appeal from the decision of H. M. High Court of Uganda, Sir John Griffin, C. J.)

Evidence—Admissibility of accomplice evidence—Failure to carry out procedure of "trial within a trial"—Uganda Penal Code, sections, 19 and 375 (6)— Uganda Criminal Procedure Code, section 337—Uganda Evidence Ordinance, sections 28 and 155.

The appellants had been convicted by the District Court on counts of (1) robbery with aggravation; (2) burglary and theft; and (3) conspiracy. Their appeals to the High Court having been dismissed they lodged a second appeal. The evidence against them was that of the complainant, his daughter and the wife of the first appellant who was originally charged with having received Sh. 4,000, the subject-matter of the first and second counts, knowing it to have been stolen. She was acquitted. Statements made by the appellants to police officers during the investigation had also been admitted in evidence in spite of objections by the accused.

*Held* $(14-5-56)$ .—(1) The Magistrate was not entitled as he had done, to take the extra-judicial statement of the first appellant's wife into consideration against her husband and by implication against the other accused.

(2) The Magistrate had failed to carry out the procedure of "a trial within a trial" as to the admissibility of the statements made by the accused to the police.

Convictions and sentences on Counts 1 and 2 quashed.

Convictions and sentences on Count 3 affirmed.

Cases referred to: R. v. Ndara and seven others, 12 E. A. C. A. 84; R. v. Buteba and Cause Securities 15. 17. v. Induce and seven others, 12 E. A. C. A. 84; K. v. Buteba and<br>another, 20 E. A. C. A. 178; R. v. Miligwa and another, 20 E. A. C. A. 255; Kinyori v.<br>The Queen, Cr. App. No. 551 of 1955 (supra p. 480); Nju

### Thacker, Q. C. for appellants.

Dickie for respondent.

JUDGMENT (prepared by Worley, President).—This is an appeal brought under section 337 of the Criminal Procedure Code from a decision of the High Court of Uganda which dismissed the appellants' appeals from convictions entered in the District Court of Mengo where all six appellants were convicted on counts of (1) robbery with aggravation; (2) of burglary and theft; and (3) conspiracy contrary to section 375 (6) of the Penal Code. At the conclusion of the hearing we allowed the appeals against the convictions on counts $(1)$ and $(2)$ and set aside the sentences passed thereon, but we affirmed the convictions entered and the sentences passed on the third of the foregoing counts. We now give our reasons for so doing.

In the District Court the six appellants were all jointly charged with robbing one Yusufu Kitaka of Sh. 4,000, one handbag and one torch while being armed with pangas, hoes and an iron bar and using violence at the time of such robbery. In the second count, which was really an alternative, they were charged with breaking and entering Kitaka's dwelling-house and stealing therein Sh. 4,000, the handbag and the torch; and in the third count they were charged with conspiring together to assault and beat Kitaka. With them was tried a woman named Miriam, the wife of the first appellant, who stood charged with receiving the Sh. 4,000, the subject-matter of the first and second counts, knowing it to have been stolen. She was acquitted at the close of the case.

The case against the six appellants rested mainly upon the evidence of the complainant and his sister, Simini, who were the only two persons sleeping in Kitaka's house on the night in question. Kitaka is a cotton grower and trader and his story was that on 19th December, 1954, he had in his house Sh. 4,000 in notes with which he proposed to buy a motor-car. He said that during the night he was awakened by the first, second and third appellants who were armed respectively with a hoe, an iron bar and a *panga* and who demânded to know where his money was and threatened to kill him if he raised an alarm. The money, he said, was in fact in a leather bag on a small table in his bedroom. He kept a small lamp burning and the intruders also flashed torches about. He alleged that he struggled with the intruders and in the course of the struggle fell off his bed and was also beaten by them. At one stage of the struggle he seized hold of the *panga* and in doing so cut his hand. When he raised an alarm his assailants ran away. He and his porters pursued them to the first accused's house in the village where they saw the first accused and heard a car starting up. Later, on returning to his house he discovered that his money was missing.

His sister, Simini, gave evidence for the prosecution and it is one of the grounds of appeal that the learned Judge of the High Court misdirected himself in upholding the convictions in spite of the fact that the Magistrate's notes of the evidence-in-chief and part of the cross-examination of this woman disappeared whilst in the custody of the Court between the date of conviction and the preparation of the record for the first appeal.

As we indicated during the argument before us, we do not think that there is any substance in this since it is sufficiently apparent from the record that Simini's evidence, for what it was worth, did go to corroborate the complainant. The learned Magistrate who had her full evidence before him says in his judgment that it did so and he further adds that she had sworn that the second appellant entered her room and tried to interfere with her and that she also was threatened if she did not say where the money was. She also identified the fourth appellant as a person she saw standing in the passage. Further, the notes of her cross-examination by the third, fourth, fifth, sixth and seventh accused, which form part of the record, sufficiently show that she was supporting her brother's story.

At the trial the story told by the appellants was that the complainant had been carrying on an intrigue with the wife of the first appellant (i.e. Miriam the seventh accused at the trial) and that she was in the complainant's house on the night in question. The first appellant, therefore, with the assistance of his brother, the second appellant, recruited the others and they all went, accompanied by a local chief, to Kitaka's house in order to arrest the erring wife and, impliedly, to assault the complainant. They said that on their arrival Simini managed to smuggle Miriam out of the back door, whereupon the chief said that nothing more could be done so they all went home. They denied emphatically that they went to the house with any intention to rob or that any robbery took place. The chief in question called as a Crown witness denied his part in the story but we think it at least possible that he may have thought it politic to do so in the light of subsequent events. None of the property alleged to have been stolen was recovered.

The main issue, therefore, which the trial Magistrate had to decide was whether the purpose of the intruders was theft and if so whether the Sh. 4.000 was stolen and violence used in pursuance of that purpose. There was no evidence to support the allegation of theft except that of Kitaka and Simini whom, apparently though not expressly, he found to credible witnesses. He dismissed the defence story as a tissue of lies. But in coming to this conclusion it is very clear that the learned Magistrate took into consideration and was considerably influenced by statements made by the accused persons to the police in the course of the investigation and, in particular, by the first of the two statements made by the woman Miriam. That statement was quite clearly inadmissible against her co-accused even if admissible against herself.

This woman could not be found in the village on 20th December but was found three days later apparently staying in her parents' house at a village some distance away. She was brought back and questioned by the investigating officer without being charged and made a statement which was admitted in evidence by the Magistrate as a voluntary one (exhibit 10). In that statement she said that she had spent the night of 19th December in her husband's house and that in the early hours of the morning her husband had gone out with others saying that they were going to Kitaka's house to kill him. Some time later her husband and the fourth appellant came back, the former with a black bag full of currency notes which he counted out to her, the total being Sh. 4,000 worth. He also told her to scrape out the tyre marks of a car. The next morning, on her husband's instructions, she took the money to her father who refused to accept it. She later gave it to a man called Yozefu Nsursula at another village and returned to her father's house. Later on Miriam apparently changed her story and went over to her husband's side, denying that she ever received any money, whereupon she was promptly charged with dishonestly receiving the Sh. 4,000 and so figured at the trial as the seventh accused. In a statement (exhibit 8) made to the police when so charged she said that her first statement admitting receipt of the money was made because she was afraid of the police and that in fact she had never received it. Apart from her retracted statement, and a retracted statement made by her husband, there was no evidence at all that she had ever received any money.

She was acquitted by the learned Magistrate on the ground there was no evidence that the Sh. 4,000 were to become her exclusive property, the evidence being that she was to hide the money for the first appellant. This was of course a misdirection in law, for an intention to acquire exclusive ownership is not a necessary ingredient in the offence of receiving. But we think that had the learned Magistrate directed his mind to section 19 of the Penal Code he might properly have acquitted the woman on the ground that she was acting under the coercion of her husband, the first appellant. We do not need, therefore, to go into the first question whether the Magistrate was entitled to accept as against her, her retracted statement without any corroboration.

What is quite clear is that he was not entitled on any view to take it into consideration against her co-accused as he did expressly against the first appellant and impliedly against the others. He may have thought that it was admissible against them under section 28 of the Evidence Ordinance but, if so, he failed to observe that the appellants and Miriam were not being tried jointly for the same offence and that Miriam's statement was not a confession. It has been unfortunate for the appellants, who were not legally represented either at their trial or on appeal to the High Court, that this point was not brought to the notice of either of the Courts below. It is very apparent from the judgment of the High Court that the learned Chief Justice entertained some doubt as to the credibility of Kitaka's story. He says that the decision (*sci.* to believe Kitaka) is not reached without difficulty and refers to the fact that, although Kitaka alleged

that the Sh. 4,000 had been stolen, he was able quite shortly afterwards to buy a motor-car for Sh. 4,000 without giving any satisfactory explanation as to where the purchase money came from. We think it quite probable that had the learned Chief Justice had his attention directed to the wrongful reception and use of Miriam's statement this might of itself have led him to take a different view of the rightness of the convictions.

There is also a remarkable discrepancy between Kitaka's evidence and the evidence of the medical officer (P. W. $\hat{7}$ ) who examined him on 22nd December. If Kitaka's story of struggling with several assailants, falling off his bed and being beaten were true it would be reasonable to expect to find bruises and abrasions on him; yet the only injuries observed by the medical officer were four superficial cuts, one-twelfth of an inch deep, on the hands. These were consistent with Kitaka's story (and with the statement made by the third appellant) that he seized hold of the *panga*. Neither of the Courts below has referred to this discrepancy.

There are moreover several other defects in the Magistrate's judgment to which we must draw attention. The third appellant when charged by the police made a statement which both the Courts below have treated as a confession to the charges of robbery and theft. In that statement the third appellant told in considerable detail how he and the others were recruited by the first and second appellants to go and "fix" the complainant because of the trouble between him and the first appellant. He said that they struggled with Kitaka and that the fourth appellant told the complainant "to show us where the money was if he did not wish to die". Then the complainant raised the alarm and they ran away. According to the statement the third appellant then said: "the bag of money stolen from the house of Kitaka was left with<br>Israeli and the torch was taken away by the fat man". This statement, as were all the statements taken by the police, was retracted by the third appellant at the trial and we shall refer later in this judgment to the manner in which the learned Magistrate dealt with that question, but assuming, as the Magistrate found, that the statement was voluntarily made it seems to us very doubtful whether if can properly be regarded as a confession inculpating the third appellant and so be taken into consideration as against his co-accused by virtue of section 28 of the Evidence Ordinance.

As regards the demand for the money it is significant that the second appellant in his cautioned statement, while denying the accusation of robbery, admitted that they had asked for money at Kitaka's house but said that this was done at the instigation of the first appellant with the object of disguising the real motive of the raid. Also the first appellant in a second cautioned statement made to the police but retracted at the trial said that one Samweri, who was one of the party but was not an accused, did bring to his house after the raid a handbag which was subsequently found to contain currency notes. It was, therefore, at least a possible interpretation of the third appellant's story that if any money was in fact stolen it was stolen by one of the raiders on his own account and had not in pursuance of any common intention, and if that were so the third appellant's statement was not a confession. But even if it were, it is well settled that an extra-judicial confession is to be treated as accomplice evidence and no weight is to be given to it as against any person other than the party making it unless it is corroborated by independent testimony: Ndaria, 12 E. A. C. A. 84, and Buteba, 20 E. A. C. A. 178. A fortiori when the confession has been retracted: *Miligwa*, 20 E. A. C. A. 255.

The learned Magistrate did not in his judgment direct his mind to the need for corroboration of the third appellant's statement and it appears to us to be a very doubtful assumption that had he done so, he would have convicted. The learned Chief Justice, however, realized the need for corroboration and

was of opinion that there was sufficient on the face of the record. He refers, in the first place to the immediate report made by the complainant to the police. It is true that this complaint was admissible under section 155 of the Evidence Ordinance to show consistency; but, in the circumstances of this case, it is necessary to regard the report with caution since it was of the essence of the defence that the complainant was part of the plot formed by Kitaka and his sister to involve them in serious allegations in retaliation for their raid on his house. It would seem that the complainant did have sufficient time to concoct this plot since the report was not made until at the earliest 9 a.m. on the morning of 20th December.

Secondly the learned Chief Justice found corroboration in the evidence that the appellants on the night in question used a car which had just previously been stolen. He thought that if the only object of the raiders was to arrest the complainant for enticing away the woman Miriam they would hardly have<br>been likely to have used a stolen car for such a purpose. With respect we are unable to agree. It was not in fact proved by the prosecution that the raiders did use a stolen car. The only evidence to this effect was in a cautioned and retracted statement made by the second accused and that also is subject to the same objections as the cautioned statement made by the third appellant.

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 Sandhu (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*, C. A. 551 of 1955 (unreported). Although in a Magistrate's 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.

We were satisfied, therefore, that the wrongful admission of the evidence above referred to, and in particular of the statement of the woman Miriam, must have prejudiced the appellants and that their convictions on the two major charges could not stand. We considered the case of the third appellant separately but decided that his case could not properly be differentiated from the others.

The sworn evidence of the appellants at the trial was sufficient to convict them on the third count without taking into consideration the evidence of the complainant and his sister.

We have already mentioned that most of the impugned statements were recorded by the investigating officer. This Court has more than once said that that this practice is inadvisable, if not improper: see Njuguna and others, C. A. 549-552 of 1954 (unreported). By ignoring this opinion the investigating officer in the present case has exposed himself to grave allegations of misconduct made both by the appellants and by their advocate. We trust that the law officers will take steps to bring these remarks to the notice of police officers in Uganda generally and Inspector Sandhu in particular.