[1950] EACJ 422

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

# Before Sir Newnham Worley (President), Sir Kenneth O'Connor, C. J. (Kenya), and BACON, Justice of Appeal

### KENYARITHI s/o MWANGI, Appellant (Original Accused) $\mathbf{v}$

#### REGINAM. Respondent

### Criminal Appeal No. 458 of 1955

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

Evidence—Exclusion of statements obtained unfairly even if legally admissible— Court's discretion—Kenya Emergency Regulations, 1952, regulations 8A (1) and $8A$ (1A)—Kenya Criminal Procedure Code, section 378 (1) (b)—Indian Evidence Act, sections 17, 24, 25, 26 and 27.

The appellant was convicted on two counts of unlawful possession of a firearm contrary to regulation 8A (1) of the Kenya Emergency Regulations, 1952, and unlawful possession of ammunition contrary to regulation $8A$ (1A) of the same regulations. Evidence was received of four statements amounting to confessions made by the accused, two of which were clearly inadmissible. It was sought to justify the admission of the other two under section 27 of the Indian Evidence Act.

Held (30-11-55).—(1) Section 27 of the Act operates as a proviso to sections 24 and 25 as well as to section 26, but in applying it the Court should bear in mind its discretion to exclude evidence unfairly obtained even if it is legally admissible; $a$ fortiori if it is obtained, as this was, by threats of violence.

(2) Where section 27 is relied on, the "fact discovered" should be given in evidence before evidence is led of the statement which led to the discovery.

(3) It could not be said that a conviction would have followed if the trial Judge had excluded the inadmissible statements and if he had directed his mind to his discretionary power to exclude the other two statements.

Appeal allowed. Conviction and sentence quashed and proceedings remitted to the Supreme Court for a retrial.

Cases referred to: Pakala Naranyana Swami v. Emperor, (1939) A. I. R. (Py. Co.), 47; Pulukuri Kottaya and others v. Emperor, (1947) 34 A. I. R. (Py. Co.), 67; Emperor v. Remis Christian, (1947) 34 A. I. R. (Pat.) 152; Ibrahim v. v. The Queen, (1955) A. C. 197.

Appellant in person.

Twelvetree for respondent.

JUDGMENT (prepared by Worley, President).—The appellant was tried before the Supreme Court of Kenya, sitting in Emergency Assize at Nairobi, on an information containing two counts, namely, the unlawful possession of a firearm contrary to regulation 8A (1) of the Emergency Regulations, 1952, and unlawful possession of ammunition contrary to regulation $8A$ (1A) of the same Regulations. He was convicted on both counts and sentenced to death. The learned trial Judge refused to grant a certificate under section 378 (1) (b) of the Criminal Procedure Code, so that this appeal is confined to questions of law, and the only such question which calls for consideration is whether inadmissible evidence as to incriminatory statements and admissions made by the appellant was received, and if so, whether such wrongful admission of evidence has, in fact, occasioned a failure of justice.

The case for the Crown, which was accepted by the trial Judge, was that on 8th September, 1955, the appellant and another man were challenged to stop by Home Guards but ran away, whereupon the Home Guards opened fire. The other man was shot dead and the appellant was captured some little way away. After his capture and as a consequence of statements made by him, the Home Guards took him to a place in the bush where a pistol was found containing ammunition. These articles were the subject matter of the charges. It is the admissibility of the statements made by the appellant in connexion with these articles which we have now to consider, and it will be convenient to set out the evidence relating to these statements in full.

- A. P. W.1 (Home Guard), "A Corporal was holding a *simi* and a pistol; he asked the man whose pistol it was—the man said it was his. The man was accused." - B. P. W.2 (Corporal of Tribal Police). "Karanja said that the only thing that would stop us shooting him (i.e. accused) was for him to show us the gun that he had been carrying. Accused said, 'I shall show you'. I covered accused with my rifle and he led us to a spot where Karanja found the pistol, about 30 paces from where we arrested accused." - C. P. W.3 (Karanja, Tribal Police). "Second witness told me to tell him (i.e. accused) to show us his gun. Accused said, 'Let me go and I will show you the gun'. We went about 30 paces.... At the spot accused told me to remove the soil and I found a small pistol in a holster."

## In cross-examination this witness also said: -

"The Corporal and I both covered the man and the Corporal said to him that he, the prisoner, was to show him where the gun was.... I said that the only way to save himself was to show us where the gun was."

D. P. W.4 (A lorry driver), "The accused looked like the man who hid, the pistol. Later I saw second and third witnesses with a small gun which they said accused said that he had hidden."

The relevant sections of the Indian Evidence Act as applied to Kenya $are: -$

Section 17-

"An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Section 24-

"A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority, and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."

Section 25 which, as amended by Ordinance No. 39 of 1952 and by the Emergency (Amendment of Laws) (No. 2) Regulation, 1954, reads as follows:-

"No confession made to a police officer shall be proved as against a person accused of any offence unless $(a)$ such police officer is of or above the rank of, or a rank equivalent to, Assistant Inspector: or $(b)$ such police officer be an administrative officer holding first or second class magisterial powers and acting in the capacity of a police officer."

Section 26, which as amended by the aforesaid enactments, reads as follows: -

"No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate empowered or appointed by or under the Courts Ordinance to hold a subordinate Court of any class, or a police officer of or above the rank of, or a rank equivalent to, Assistant Inspector, shall be proved as against such person."

## And lastly, section $27:$ —

"Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

The statements by the appellant are clearly admissions and as such are relevant unless they are also confessions and are rendered inadmissible by the provisions of section 24 to 26 inclusive. The expression "confession" is not defined in the Act, but was considered by the Privy Council in Pakala Narayana Swami v. Emperor, (1939) A. I. R. (Py. Co.) 47. At p. 52 their Lordships said:

"In their Lordships' view no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession."

Then, after referring to the definition of confession in Stephen's Digest of the Law of Evidence, their Lordships said: $-$

"The definition is not contained in the Evidence Act, 1872: and in that Act it would not be consistent with the natural use of language to construe confessions as a statement by an accused 'suggesting the inference that he committed' the crime."

In the instant case the gist of the offence charged was possession and it is beyond doubt that the admissions made by the appellant, taken in the context of the questions put to him by the police witnesses, amount to confessions. Prima facie, therefore, since they were made to police officers below the prescribed rank and while he was in police custody, and, as the result of inducement, these confessions were all inadmissible; but the question which has to be considered is. whether any and, if so, which of them are saved by the provisions of section 27.

Now, it is quite clear that both A. and D. above were inadmissible; A. because it was a confession to a police corporal *after* the discovery of the pistol and while the appellant was in police custody; and D. because it is not alleged and does not appear that the statement of the second and third witnesses was made in the accused's presence; it was, in fact, mere hearsay. We cannot refrain from expressing our surprise that prosecuting counsel tendered these two clearly inadmissible pieces of evidence, and our still greater surprise that no objection was taken to them by defence counsel.

There remain B. and C. The condition necessary to bring section 27 into operation was considered by the Privy Council in Pulukuri Kottaya and others v. Emperor. (1947) 34 A. I. R. (Py. Co.) 67. At p. 70 their Lordships said: —

"The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates 'distinctly to the fact thereby discovered' may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate."

Later in the judgment their Lordships said—

"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discoverey of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But, if to the statement the words be added, 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant... Except in cases in which the possession or concealment of an object constitutes the gist of the offence charged it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case."

In the instant case where, as we have said, possession was the gist of the offence, there is no doubt that the statements of the accused that he would show the police where the gun was and his instruction to them to dig at the place where the pistol was discovered led to the discovery of the fact that the pistol was concealed at that place to the knowledge of the informant. The remaining question then would be whether these statements, taken together with the other evidence in the case, established beyond reasonable doubt that the pistol was in the appellant's possession.

To return to the question of the admissibility of these statements, it seems to be well settled in India that section 27 is to be regarded as a proviso, not only to section 26 but also to sections 24 and 25; this appears to be the view taken by the writers of all the text-books which we have consulted (see Woodroffe's Law of Evidence, 9th ed., p. 292, et seq, Sarkar Law of Evidence, 9th ed., p. 248, et seq, and Monir Law of Evidence, 3rd ed., p. 230). Reference may also be made to the case of *Emperor v. Remis Christian*, (1947) 34 A. I. R. (Pat.) 152, where the Indian decisions are reviewed and where, at p. 155 their effect is summarized by Meredith, J., as follows: -

"I am of opinion that it must now be taken as settled, unless and until the Privy Council decides to the contrary, that section 27 should be read as a proviso to section 24, and controls it. Therefore, the fact that Remis may have been threatened or beaten does not prevent the application of section 27."

He refers to an observation of Lord Atkin's in Swami's case (supra) that section 27 seems to be intended to be a proviso to section 26, and points out that Lord Atkin was not really dealing with the point in question and that there was no decision on the point as to whether section 27 could be read as a proviso to section 24. Certainly it has never, we think, been doubted that section 27 controls section 25.

So far as we can discover, the question whether section 27 controls section 24 does not appear to have been considered at any time by the Privy Council nor by this Court, but we believe that the rule adopted in India has been generally followed in these territories and we believe it to be right in principle. The ground of rejection of confessions which are not voluntary is the danger that the prisoner may be induced by hope or fear to incriminate himself falsely (see Phipson on Evidence, 9th ed. 266). "It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence Judges have thought it better to reject it for the due administration of justice": Reg. v. Baldry, 2 Den.

Cr. C., cited with approval by the Privy Council in *Ibrahim v. Rex*, (1914) A. C. 599 at p. 611. Accordingly, it would seem that if a fact is actually discovered in consequence of an induced confession "some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence". This also appears to be in accordance with the English rule (see Phipson op. cit. 272 and Cockle's Cases and Statutes on Evidence, 8th ed. 197, and also R. v. Gould, (1840) 9 C. & P. 364). In the application of the rule, however, the Courts are not powerless to protect an accused person against its abuse for, as the Judicial Committee emphasized in *Noor Mohamed v. The King*, (1949) A. C. 182, and has recently repeated in Kuruma v. The Queen, (1955) A. C. 197 at p. $204: -$

"No doubt in a criminal case the Judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused ... if, for instance, some admission of some piece of evidence, e.g. a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out."

A fortiori could this discretion be exercised when an incriminating statement has been obtained by threat of death or grievous harm. But, in the instant case, it is quite clear that the mind of the learned trial Judge was never directed to the question of whether he should exercise this discretion.

There is one other irregularity in the reception of this evidence to which we should refer. In Kottaya's case (supra) their Lordships indicate the manner in which section 27 should be brought into operation; namely, the witness must first depose to the discovery of a fact in consequence of information received from the accused and, "thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved". In other words, the prosecution must first lay the foundation, i.e. establish the discovery, which alone renders admissible evidence which would otherwise be inadmissible. While the prosecution is seeking to do this, defending counsel, if he is instructed that the evidence was obtained by improper means, may timeously take objection and seek by cross-examination or by other evidence to establish that an inducement or trick was used to elicit a confession or incriminating statement with a view to submitting that the Court should use its discretion to exclude the evidence so obtained.

In the present case the course indicated by the Privy Council was reversed: the witnesses first gave evidence of the questions put to the accused and of the threat made to coerce him, then of his admissions and lastly of the discovery consequent upon those admissions. It is, we think, obvious that evidence of the questions put to the appellant should not have been given in chief since they presupposed that he had had possession of the pistol.

It remains for us to consider whether these irregularities have occasioned a failure of justice, the usual criterion of this being whether the appellant has lost a reasonable chance of acquittal. There was evidence, aliunde the questioned statements, on which the trial Judge might have convicted. It was said that the dead man could not possibly have put the pistol at the place where it was found and that the appellant had been seen to stoop as if to place something on the ground after his companion had been shot and then ran back to surrender. There was also the evidence of appellant's conduct in leading his captors to the spot where the pistol was discovered. This was certainly evidence from which a Court could reasonably infer that the appellant was in possession of the pistol and of the ammunition with which it was charged. Nevertheless, we cannot feel satisfied that a conviction would have followed if the learned trial Judge had excluded from consideration the two wholly inadmissible statements and if he had directed his mind to his discretionary power to exclude the other two statements. In the circumstances, therefore, we have decided to allow this appeal to the extent of quashing the conviction and sentence and remitting the matter to the Supreme Court for a new trial upon the same indictment.