[1945] EACA 40
The court found that Loza Nakiwala had disassociated herself from the fatal act by asking Victoro to release Paulo before the fatal injuries were inflicted. There was a real doubt as to whether responsibility for Paulo's death had been brought home to Loza, and her conduct in attempting to secure Paulo's release was...
Source-derived case information.
- Citation
- [1945] EACA 40
- Parties
- Appellant: Victoro Abumani; Appellant: Loza Nakiwala; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeals Nos. 273 and 274 of 1945
- Procedural Posture
- Criminal Appeal / Appeal Judgment
- Outcome
- Appeal of Victoro Abumani dismissed; appeal of Loza Nakiwala allowed.
- Judges
- Graham Paul CJ, Sheridan CJ, Whitley CJ
- Legal Topics
- Murder Liability, Joint Criminal Enterprise, Voluntariness of Statements, Police Interrogation Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victoro Abumani
Appellant
Loza Nakiwala
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal Judgment
Legal Issues
- 1 Whether Loza Nakiwala is criminally responsible for the death of Paulo given her actions and subsequent disassociation before fatal injuries were inflicted.
- 2 Whether the police procedure in recording statements from accused persons, including cross-examination and presence of co-accused, affects the voluntariness and admissibility of those statements.
- 3 Whether Victoro Abumani's actions amount to murder under the evidence presented.
Ratio Decidendi
The court found that Loza Nakiwala had disassociated herself from the fatal act by asking Victoro to release Paulo before the fatal injuries were inflicted. There was a real doubt as to whether responsibility for Paulo's death had been brought home to Loza, and her conduct in attempting to secure Paulo's release was considered in her favour. The court declined to substitute a lesser conviction for assault occasioning bodily harm, noting that Loza had already suffered imprisonment and had acted to mitigate the harm. In contrast, the evidence against Victoro Abumani was clear and sufficient to establish that he caused Paulo's death through a calculated, merciless, and sustained beating,...
Court Disposition
Appeal of Victoro Abumani dismissed; appeal of Loza Nakiwala allowed.
Orders
- Victoro Abumani's conviction for murder is upheld and his appeal is dismissed.
- Loza Nakiwala's conviction is quashed, her appeal is allowed, and she is acquitted and ordered to be released.
Full Case Text
Judgment text and source record
24 paragraphs
# COURT OF APPEAL FOR EASTERN AFRICA in
Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and Sir Norman Whitley, C. J. (Uganda)
### REX, Respondent (Original Prosecutor)
ν.
# (1) VICTORO ABUMANI, (2) LOZA NAKIWALA, Appellants (Original Accused Nos. 1 and $2$ )
## Criminal Appeals Nos. 273 and 274 of 1945
### (Appeals from decision of H. M. High Court of Uganda)
Criminal Jaw-Murder-The female accused disassociating herself before fatal injuries inflicted—Observations on irregulatities in the recording of statements from accused persons by police officer.
Both appellants suspecting the deceased of having stolen their property from their hut caught hold of him, beat him up and tied him up to a pole. The female appellant Loza subsequently asked the male appellant Victoro to until the deceased but he refused. On the following morning the deceased was found dead about 200 yards from the accused's hut from which marks on the ground showed that he had been dragged. Death was due to strangulation.
Both appellants were convicted of murder and appealed.
Held $(16-11-45)$ .—(1) That as Loza had asked Victoro to until the deceased while he was alive there is a real doubt as to whether she is responsible for the deceased's death.
(2) That while it is perfectly legitimate and even necessary to question accused persons so as to ensure that what they really mean is recorded care should be taken to ensure that they are not subjected to cross-examination, as this would be destructive of the voluntary nature of their statements.
(3) That the procedure of recording an accused's statement in the presence of his co-accused and giving an opportunity to the latter to cross-examine him is without sanction.
Appeal of first accused dismissed.
Appeal of second accused allowed.
Appellants absent, unrepresented.
Kingsley, Crown Counsel (Tanganyika), for the Crown.
JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—With regard to the second accused, Loza, we consider that there is a real doubt in the case as to whether responsibility for Paulo's death has been brought home to Loza. In her favour there is the evidence that she asked Victoro to until Paulo and that he refused. It was some time subsequent to this that Paulo received further and serious injuries for which Loza cannot be held responsible. We have considered whether we should not in her case substitute a finding of assault occasioning bodily harm as we are entitled to do on her admission that at an earlier stage she had struck Paulo with a stick. We have decided not to do so for the reason that already she has suffered a period of imprisonment on the murder charge and on account of her conduct in endeavouring to have Paulo released before he received the further injuries. Against the first accused, Victoro, the
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evidence that he caused the death of Paulo is sufficient and his act on the evidence must be regarded as murder. The injuries found on Paulo reveal that the beating he received was calculated, merciless and sustained. His appeal is dismissed. Loza's appeal is allowed and she is acquitted and ordered to be released.
In connexion with appeals from Uganda we observe that there exists a tendency on the part of certain police officers in Uganda to question and even cross-examine accused persons when they appear to make statements. The present case is an instance where the accused persons were subjected to lengthy interrogation by the police officer concerned. This practice is to be deprecated. While it is perfectly legitimate and even necessary to question such accused persons, so as to ensure that what they really mean is recorded, care should be taken to ensure that they are not subjected to cross-examination, as this would be destructive of the voluntary nature of their statements. Another irregularity we observe is that when accused Victoro was making his statement his co-accused Loza was present and asked whether she wished to ask him any questions, a procedure which is without sanction.
#### G. P. K. $1428 - 400 - 8/51$
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