[1950] EACA 576

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and EDMONDS, J. (Kenya)

# MOHAMED WARSAMA, H. T. MUSA ABOKER BAH MAJELO, Appellant (Original Accused)

v.

# REGINAM, Respondent-

# Criminal Appeal No. 159 of 1956

# (Appeal from the decision of H. M. High Court of Somaliland, Lane, J.)

Convictions of murder on two counts—One sentence of death—Admissibility of dying declaration-Statement to police-Application of Judges Rules-Somaliland Criminal Procedure Code, sections 126, 127 and 128 (2)—Indian Evidence Act, section 32 (1)—Kenya Police Ordinance, 1948, section 36 (3).

The appellant had been tried and convicted on two counts alleging respectively the murder of two men and the Court pronounced one sentence of death. It was not clear from the record whether the sentence was in respect of the first or second count. One of the deceased persons had made a series of dying declarations which were admissible as evidence of the cause of his own death but which had been admitted as evidence of the cause of death of the other deceased. A statement by the appellant to a police officer, but not signed, had been recorded in writing and permitted to be proved by oral evidence from the officer concerned, although no caution had been administered.

Held $(24-8-56)$ —(1) As it could not be ascertained from the record on which count sentence of death had been passed and as an omnibus sentence is unlawful, no lawful sentence had been passed.

(2) The dying declarations were inadmissible as evidence of the cause of death of the other deceased.

(3) The statement to the police officer was inadmissible and the Courts have a duty to apply the Judges Rules with considerable strictness and to reject statements made under police questioning where an intention to charge has been formed, unless a proper caution has been given.

Conviction on first count affirmed and accused sentenced to death. Conviction on second count set aside.

Cases referred to: Kunwarpal Singh v. R., A. I. R. 1948 All. 170; Loizeau and another v. R. (supra p. 566); Pakala Narayana v. R., 66 I. A. 66.

Appellant absent, unrepresented.

#### Brookes for respondent.

JUDGMENT (prepared by Briggs, Acting Vice-President).—The appellant was tried by the High Court of Somaliland on two counts alleging respectively the murder of two men called Jama Samakab and Hassan Jama. He was convicted on both counts and the Court pronounced a single sentence of death, without making it clear whether that sentence was on the first count, or on the second, or was intended to be two sentences, one on each count. His appeal was allowed in part. We set aside the conviction on the second count (murder of Hassan Jama) and quashed the sentence, if any. We affirmed the conviction on the first count (murder of Jama Samakab), but held that the sentence, if any, was a nullity. We sentenced the appellant to death on the first count. We now give reasons for our decision.

As regards sentence, no authority is needed for the proposition that an omnibus sentence is unlawful. For every count on which a conviction is had there must be a separate sentence. Where, as has happened not infrequently in Kenya in Emergency cases more capital charges than one are tried together and convictions result, the Court may properly adopt either of two courses. It may pronounce sentence of death on each conviction, or it may pronounce sentence of death on one conviction and postpone sentence on the other or others. In the latter case, if the first conviction and sentence are set aside on appeal. the accused may be sentenced on another of the original convictions. In either case it must be made perfectly clear on the record what has been done. It was impossible in this case to act on any presumption of regularity, more particularly because in Somaliland the death sentence is not obligatory in cases of murder. We did not know what the sentences had been, and our only course was to assume that no lawful sentences had been passed. On the conviction which we upheld there could be no reason for passing any sentence other than one of death. We accordingly made the order which in our opinion the High Court ought to have made.

The conviction on the second count was based, like that on the first, on two bodies of evidence. There was a considerable amount of evidence concerning footprints and sandals and tending to link the appellant with the two murders. which were committed at the same time and place; but it was clear, and was conceded by Crown counsel, that no conviction of murder could safely have been based on that evidence alone. The other evidence was of a series of dying declarations by Jama Samakab. These were precise and detailed and, if true, conclusive. The learned trial Judge correctly warned himself of the desirability of corroboration, but found it in the evidence about the footprints and sandals. His finding that the appellant murdered Jama Samakab cannot be criticized. Unfortunately the learned Judge appears to have overlooked the rule that a dying declaration is evidence of the cause of death of the declarant, but cannot ordinarily be evidence of the cause of other persons' deaths. Indian Evidence Act, section 32 (1). We think that it would be wrong to rely on the words "as to any of the circumstances of the transaction which resulted in his death" in this case. They are admittedly wide, and might in one sense be considered applicable to the death of Hassan Jama. It is true also that in this trial the causes of the deaths of both Jama Samakab and Hassan Jama "came into", and were at all times in, "question". But even apart from authority we should not be prepared to hold that the declaration of Jama Samakab could prove against the appellant the murder of Hassan Jama. And there is express authority for that view. In Kunwarpal Singh, A. I. R. 1948, All. 170, a case hardly distinguishable on the facts from this, where the declarant heard, though he did not actually see, the attack on his deceased brother immediately before being attacked himself, the accused were tried for both murders and convicted, but on appeal it was held that the conviction for murdering the brother of the declarant could not stand. The Court said, at p. 172:-

"It may be said at once that no case with respect to the murder of Megh Singh can be made out against the appellants on the material on the record. The dying declaration of Girwar Singh is not admissible in evidence with respect to the incident of the attack on Megh Singh. Section 32 (1), Evidence Act, makes the statement of a person who is dead a relevant fact when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. It follows that the statement of one dead person is not a relevant fact with respect to the question about the death of another person."

The conviction for murdering the declarant was upheld. For these reasons we were obliged to quash the conviction on the second count.

This case emphasizes again the importance of the rule—most recently<br>restated in *Loizeau and another*, C. A. 49 of 1956 (unreported)—that other counts, whether for similar or different offences, ought not to be joined with a count of murder or manslaughter. If the appellant had been tried only for the murder of Hassan Jama, it would have been obvious that Jama Samakab's dving declarations could not be admissible evidence. The whole of those declarations was relevant on the charge of murder of Jama Samakab. Otherwise it might have been necessary to set aside that conviction also on grounds of misjoinder and prejudice.

One other aspect of the trial requires comment. The prosecution sought to prove by the evidence of Mr. James, a Superintendent of Police, a statement made by the accused to him after his arrest. The statement had been recorded in writing by Mr. James. It was not signed by the accused. It was admitted that the document itself was inadmissible under the provisions of section 127 of the Criminal Procedure Code, which reads as follows: -

"127. (1) No statement made by any person to a police officer in the $\frac{1}{2}$ course of an investigation under this chapter shall, if taken down in writing. be signed by the person making it, nor shall such writing be used as evidence:

Provided that, when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and may then, if the Court thinks it expedient in the interest of justice, direct that the accused be furnished with a copy thereof; and such statement may be used to impeach the credit of such witness in manner provided by the Indian Evidence Act, 1872."

The prosecution submitted that the witness could give oral evidence of what the accused had said. The statement was not a confession; indeed, it was a complete denial coupled with an allegation of alibi. The accused, though under suspicion, had not been charged or cautioned. The statement was made in response to questions and presumably under compulsion imposed by section 126 of the. Code, which provides:-

"126. (1) Any police officer making an investigation under this chapter may examine orally any person supposed to be acquainted with the<br>facts and circumstances of the case, and may, if he shall be of opinion that any person examined by him will or may be required as a witness, require such person to execute a bond to appear and give evidence before a magistrate if and when required to do so.

(2) Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture."

The witness said the statement was "purely voluntary". This is nonsense. It cannot possibly be said that a statement consisting of replies to questions which the person questioned is bound by statute to answer is made "voluntarily", even if he is not unwilling to answer. While making the statement the accused was searched, and after making it he was "remanded to prison". In view of the fact

that the statement was not itself incriminating we think there can be no doubt that Mr. James had decided before he took it to charge the appellant. We think the appellant should have been cautioned in the ordinary way. There appears to be no statutory rule about this in Somaliland (compare section 36 (3) of<br>the Police Ordinance, 1948 of Kenya), and section 128 (2) of the Criminal Procedure Code was relied on. It reads: —

"(2) But no police officer or other person shall prevent by any caution or otherwise, any person from making in the course of any investigation under this chapter any statement which he may be disposed to make of his own free will."

In our opinion this has nothing to do with a case of this kind, where a person under arrest is questioned and obliged to reply under section 126. We think the effect of the Judges Rules must be considered to be part of the law of Somaliland. It is in our opinion contrary to natural justice that statements should be forced from a person whom it has already been decided to charge. The learned Judge apparently never considered whether, even if the statement was technically admissible, he had a discretion to reject it. We think he should have done so, and that any statement taken in these circumstances should ordinarily be rejected in the same way.

The learned Judge allowed the evidence to be given and it apparently consisted of Mr. James reading aloud his written record of the statement made, under the pretext of refreshing his memory. We regret to find that, on the weight of the Indian authorities, when section 162 of the Indian Code was in similar form to section 127 now in force in Somaliland, such a proceeding would apparently have been within the law, provided that the statement was not a confession. It must, however, be remembered that "confession" was then understood in the wide sense of any statement admitting, or leading to the<br>inference of, guilt. It was not until 1939 that the Privy Council in *Pakala*<br>*Narayana*, 66 I. A. 66, laid down the narrower definition. But even o understanding of the word "confession", which excluded many statements that would not now be excluded as confessions, it was found in India that the old section 162 worked unjustly, and it was amended in 1923. The rule is now quite simple in its effect on accused persons. If a person is examined under section 161 in the course of investigation of a crime, and is later charged with that crime, his statement cannot be given in evidence. Authorities of date earlier than 1923 are of course irrelevant. It seems to us that the reasoning behind the alteration of the law must have been that an accused person shoulton not be convicted on the strength, or even with the assistance, of a statement obtained from him under compulsion. The exception that he need not answer incriminating questions is a most inadequate protection and does not affect the general principle. So long as section 127 remains the law of Somaliland, we think the Courts have a duty to afford reasonable protection to accused persons by applying the Judges Rules with considerable strictness, and using their discretion to exclude any statements made under police questioning where an intention to charge has been formed, unless a proper caution has been given.

Although in this case the learned Judge did to some extent rely on the appellant's statement as showing that he had lied to the police, the general effect of the admission of the statement was very slight and we do not think it can have affected the result of the trial.