[1950] EACA 480

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

Before SIR NEWNHAM WORLEY (President), BRIGGS and BACON, Justices of Appeal

## KINYORI s/o KARUDITU, Appellant (Original Accused)

## ν. REGINAM, Respondent

Criminal Appeal No. 551 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, Seton, Ag. J.)

Procedure—Admission of extra-judicial statement—Second cross-examination after assessors' return.

The appellant had been convicted of unlawfully possessing a firearm and ammmunition. He had made an extra-judicial statement later retracted. After argument as to its admissibility, in the absence of the assessors, it was ruled to be admissible. The assessors returned and the police officer who had taken the statement was then recalled and read and put in evidence the statement. He was not cross-examined.

$Held$ (12-3-56).—(1) Where an extra-judicial statement has been ruled in the absence of the assessors to be admissible, after they return to Court counsel for the accused is entitled to cross-examine the person taking the statement again. Correct procedure in such a case detailed.

(2) The failure to comply with the correct procedure did not justify interference with the decision of the trial Court as it had not occasioned a failure of justice.

Appeal dismissed.

Case referred to: R. v. Murray, (1951) 1 K. B. 391.

Appellant in person.

Webber for respondent.

JUDGMENT (prepared by Bacon, J. A.).—This was an appeal against convictions in the Supreme Court of Kenya of unlawful possession of a firearm and of unlawful possession of ammunition contrary to Regulation 8A of the Emergency Regulations, 1952. We dismissed the appeal and now give our reasons.

The only question which fell to be considered on the hearing of the appeal was that of the procedure adopted at the trial pursuant to an objection by Mr. M. M. Patel, who there appeared for the defence, as to the admissibility of an extra-judicial statement made to a police inspector by the appellant.

The procedure was as follows. Before any mention of the statement was made in evidence the assessors duly retired, presumably on Mr. Patel's application, though there is no record of it. A clerk in the Criminal Investigation Department, a Meru, then testified that he had acted as interpreter for the inspector when the latter had charged and cautioned the appellant and had recorded in English the statement made in reply. The clerk also gave evidence in detail as to the proper steps having been taken on that occasion, as to his having translated the appellant's words from Kikuyu into English as to his not having spoken to the appellant in Meru and as to the appellant having been "normal" when making his statement. Finally, the clerk indentified the statement itself. The inspector then testified that the statement had been made quite voluntarily and

that he had recorded exactly what the interpreter had said to him. He also confirmed the latter's evidence to the effect that the statement had been read back to the appellant through the interpreter and that the appellant had agreed that it was correct and had signed it. In cross-examination the inspector said that he himself did not know either Kikuyu or Meru, but that he had told the interpreter to speak to the appellant in Kikuyu. The appellant then testified that he had been taken from hospital to make his statement, that he was in terrible pain at the time and could not remember what he had said, and that the interpreter had spoken to him in Meru, which language he (the appellant) did not know. Despite his professed inability to remember what he had said, the appellant then repudiated all the inculpatory passages of the alleged statement, leaving the remainder on record. He added that he had spoken Kikuyu and thought that the interpreter had understood him.

On the evidence the learned trial Judge then ruled that the whole statement was admissible and called the assessors back into Court. Thus far the procedure was unexceptionable, but thereafter it was wrong in several respects.

According to the Judge's note, the inspector was then recalled, read and put in evidence the appellant's statement, and then proceeded to testify as to other matters in issue. He was not cross-examined. Nothing further is recorded as having been said at any time thereafter regarding the circumstances attending the making of the statement. In short, the assessors were apparently never aware of the grounds upon which objection to the admission of the damaging parts of it had been taken, and certainly they had no opportunity of hearing evidence given either by the appellant or by witnesses for the Crown on that issue. There is no note of defending Cousnel's address, but, since the assessors had not heard this part of the evidence, counsel was precluded from discussing it. Nor is there any note of the summing-up, so it is impossible to say whether the learned Judge referred to the matter at that stage, though it appears unlikely that he did, for in giving their opinions the assessors made no mention of it.

We cannot say that an application to recall the interpreter for cross-examination, or again to cross-examine the inspector, after the return of the assessors to Court was in the present case refused, for, as already mentioned, there is no record of any such application having been made. Nor can we say that the appellant, when he elected in due course to testify on the general issue, was precluded from giving evidence as to the alleged circumstances in which his statement had been made (which might affect the weight to be given to it): according to the record, he never mentioned the matter at that stage; but, here again, there is nothing in the note to show that either he or his counsel attempted to reintroduce the subject; on the other hand, neither is there anything to show that the defence was aware that, even at that late hour, the appellant was entitled to retract in the witness-box, or even again to profess to repudiate his statement despite the ruling against him. Nevertheless in our view it is desirable that the full and proper procedure in this matter of disputed statements should always be followed; moreover, since the procedure does not appear to be universally understood, we think it advisable that before the assessors return to Court, the Judge should ascertain from defending counsel whether he proposes to exercise his right to impugn in the assessors' presence the now admitted statement as regards the weight to be given to it.

With respect to any extra-judicial statement admitted after the trial of the issue of admissibility assessors should be treated as though they were jurors, for although the former are not judges of fact the Court is bound to take their opinions before judgment and their opinions should be formed in the light of all, not merely some, of the evidence which a jury would be entitled to hear and weigh. The position of a jury in this respect was dealt with by the Court of

Criminal Appeal in R. v. Murray; (1951) 1 K. B. 391 (also reported in 34 C. A. R. 203) where it was held that, since the weight and value of a confession were matters for the jury, and since, in considering those matters, they were entitled to take into account the manner in which they thought that it had been obtained, counsel for the accused was entitled to cross-examine the police again in the presence of the jury as to the circumstances in which the confession had been made, and to try to show that it was obtained by means of a promise or threat—and that it was a misdirection to disallow such second cross-examination. That principle is, as we have said, equally applicable to a trial with assessors, and moreover as regards not merely a confession admitted in evidence but also any repudiated or retracted extra-judicial statement of an accused, or any part of any such statement, so admitted as to which there was raised the issue of admissibility either on the ground of inducement by a promise or threat or on any other ground connected with the circumstances in which the statement was made.

For the avoidance of doubt we now summarize the proper procedure at a trial with assessors when the defence desires to dispute the admissibility of any extra-judicial statement, or part thereof, made by the accused either in writing or orally. This same procedure applies equally, of course, to a trial with a jury. If the defence is aware before the commencement of the trial that such an issue will arise the prosecution should then be informed of that fact. The latter will therefore refrain from referring in the presence to the assessors to the statement concerned, or even to the allegation that any such statement was made, unless and until it has been ruled admissible. When the stage is reached at which the issue must be tried the defence should mention to the Court that a point of law arises and submit that the assessors be asked to retire. It is important that that should be done before any witness is allowed to testify in any respect which might suggest to the assessors that the accused had made the extra-judicial statement. For example, an interpreter who acted as such at the alleged making of the statement should not enter the witness-box until after the assessors have retired. The assessors having left the Court the Crown, upon whom the burden rests of proving the statement to be admissible, will call its witnesses, followed by any evidence or statement from the dock which the defence elects to tender or make. The Judge having then delivered his ruling, the assessors will return. If the statement has been held to be admissible the Crown witness to whom it was made will then produce it and put it in if it is in writing, or will testify as to what was said if it was oral. The defence will be entitled, and the Judge should make sure that the defence is aware of its right, again to cross-examine that Crown witness as to the circumstances in which the statement was made and to have recalled for similar cross-examination the interpreter and any other Crown witness who has given evidence on the issue in the absence of the assessors. Both in the absence and again in the presence of the assessors the normal right to re-examine will arise out of any such cross-examination. When the time comes for the defence to present its case on the general issue, if the accused elects either to testify or to make a statement from the dock thereon he will be entitled also to speak again to any questionable circumstances which he alleges attended the making of his extra-judicial statement and to affirm or to reaffirm any repudiation or retraction upon which he seeks to rely. Indeed, if the accused desires to be heard in his defence either in the witness-box or from the dock he will not be obliged to testify in chief or to speak, as the case may be, to anything more than the matters touching on the issue of admissibility; but, once he elects to testify, however much he then restricts his evidence-in-chief he will be liable to cross-examination not only to credit but also at large upon every matter in issue at the trial. The accused will also be entitled to recall and again to examine any witness of his who spoke to the issue in the assessors' absence, and to examine any other defence witness thereon.

The broad principle underlying that procedure is that the accused is entitled to present, not merely to the Judge but also to the assessors, the whole of his case relating to the alleged extra-judicial statement; for the Judge's ruling that it is admissible in evidence is not the end of the matter; it still remains for both Judge and assessors individually (or, where there is a jury, for the jurors) to assess the value or weight of any admission or confession thereby disclosed and also the accused is still at liberty to try to persuade them that he has good reason to retract or to repudiate the statement concerned or any part of it. It remains to be considered whether the omission to follow the correct procedure in this instance warrants our interfering with the decision against which the appeal was brought. We do not think that it does, since in our view the fault is cured by section 381 of the Criminal Procedure Code inasmuch as it has not in fact occasioned a failure of justice. Excluding the appellant's extra-judicial statement, there was ample, indeed overwhelming, evidence of his having been caught carrying the firearm and ammunition in circumstances which precluded the possibility of his being in the act of surrendering. Reasonable assessors having that evidence before them must have come to the same conclusion as did the assessors in this case, namely that the appellant was guilty. In any event the learned trial Judge must have found as he did.