[1951] EACA 321

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and BOURKE, J. (Kenva)

#### YOZEFU MUKASA, Appellant (Original Accused)

### REX, Respondent (Original Prosecutor)

# Criminal Appeal No. 254 of 1951

(Appeal from decision of H. M. High Court of Uganda—Sir David Edwards, C. J.)

Uganda Evidence Ordinance—Confession to Police Corporal—Entry in Occurrence Book whether admissible.

The appellant was convicted of murder before the High Court of Uganda. He made a statement to a Police Corporal in charge of the Police Post where he gave himself up. This statement was made to a Police Officer below the rank of Inspector and was a confession. It was thus inadmissible under the provisions of section 24 of the Uganda Evidence Ordinance. The statement was recorded at the time in the Occurrence Book and was put in at the trial under section 33 of the Evidence Ordinance which declares that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in discharge of his official duty, is itself a relevant fact. Such an entry is therefore a *priori* admissible by reason of section 5 of the Ordinance which lays down that evidence may be given of any fact declared to be relevant.

Held (21-12-51).—There is nothing in section 5 or section 33 which can be construed as modifying the requirements of section 24. The confession recorded in the Occurrence Book was therefore inadmissible.

Appeal dismissed.

#### Appellant absent, unrepresented.

## McMullin, Crown Counsel (Uganda), for Crown.

JUDGMENT.—The appellant in this case was convicted of the murder of his wife by the High Court of Uganda. Leaving out the appellant's own admissions the only direct evidence against him consisted of that of a boy of about six years of age. The learned trial Judge after satisfying himself that this child could understand and give rational answers to questions put to him allowed him to give sworn testimony (section 116, Uganda Evidence Ordinance). If the evidence of this child be accepted as it was by the learned Judge there can be no doubt that it was the appellant who inflicted the terrible injuries on the deceased which caused her death. This evidence is in fact corroborated by the appellant's own statements for although it has always been his contention that he was too drunk at the time to remember what happened, he has never sought to deny that he is in fact responsible for his wife's death. Both when he was charged at the Police Station and in his statement before the committing Magistrate, he referred to the fact that when he became sober enough to realize that he was wandering about in the bush he found his clothes stained with blood and knew then that he had killed his wife. We have deliberately left out of account the statement made by the appellant to a Police Corporal, when he gave himself up at a Police Station on 11th July, 1951, because with great respect to the learned trial Judge, we think this was wrongly admitted. On the face of it the statement is a confession that he had cut his wife with a panga on the head and neck, and it was made to a Police Officer below the rank of Assistant Inspector. It was thus inadmissible under the provisions of section 24 of the Uganda Evidence Ordinance.

Mr. McMullin for the Crown, whilst conceding that the statement does amount to a confession has argued that it is admissible by reason of section 33 of the Evidence Ordinance, for the statement was recorded at the time by the Police Corporal in the Occurrence Book. This Corporal was in fact in charge of the Police Post at which the appellant gave himself up and it was his official duty to make the entry in the Occurrence Book. At the trial the Corporal (P. W. 8) read out the entry he had made which was then put in as ex. P4. Now section 33 of the Uganda Evidence Ordinance declares that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in discharge of his official duty, is itself a relevant fact. Such an entry is therefore a *priori* admissible by reason of section 5 of the Ordinance which lays down that evidence may be given of any fact declared to be relevant. We have no doubt, however, that there is nothing in either section 5 or section 33 which can be construed as modifying the requirements of section 24. Any other view would constitute a most dangerous paring down of the requirement that confessions made to Police Officers below a certain rank cannot be proved against a person accused of any offence. This entry (ex. P4) purports to record the statement made by the appellant to a Police Corporal. It must have been tendered by the prosecution in order to prove that on a certain date the appellant had made that statement, but as that statement contained his admission that he had inflicted injuries on his wife it constituted a confession which by law could not be proved against him. We hasten to add, however, that the wrong admission of this particular statement in no way detracts from the sufficiency of the corroboration of the child's evidence afforded by the appellant's other admissible statements. The learned trial Judge was therefore fully justified in finding that it was the appellant and none other who inflicted the terrible injures on the dead woman, injuries which amounted to decapitation.

The only other point that remains is whether the learned Judge was right in his conclusion that there was insufficient evidence to show that the appellant must have been so drunk at the time of committing the offence that he was unable to form the intention to kill or do grievous injury. The appellant has made it one of the points in his memorandum of appeal that the trial Judge erred in accepting the main part of the child's evidence although he rejected that part of it which related to the appellant's intoxication. The child did say that his father, or his foster father, whichever is the true relationship, was drunk soon after breakfast and remained drunk all day, but we think the learned Judge was fully justified in placing more store on the evidence of two adult witnesses who said they saw little wrong with him at midday. The crime was committed not long before sunset. It would be unusual to regard a child of six as an expert on drunkenness. The learned Judge did in fact direct himself with great care on the issue of drunkenness and we are not prepared to question his conclusion. The evidence of the boy established that after the first cut the deceased woman managed to run away but was pursued and caught a second time by the appellant. Add to this that he decamped from the scene and hid in the bush immediately after the killing, it is a reasonable inference to draw, that although his drunken condition may well have brought on a homicidal frenzy, he knew well what he was about and deliberately gave vent to his passions. In our opinion then the conviction entered against the appellant was the only possible one and we dismiss his appeal.


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