[1943] EACA 36

### COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and Sir Henry Webb, C. J. (Tanganyika)

### REX. Respondent (Original Prosecutor)

v

# **HGUNGU-s/o TUNGU, Appellant (Original Accused)** Criminal Appeal No. 140 of 1943

### Appeal from decision of H. M. High Court of Tanganyika

Evidence—Confession—Confession to headman—"Police Officer"—Indian Evidence, Act. Section 25.

The appellant was charged with the murder of his mother. Before he had: been arrested, and before it was even known that the woman had been murdered: he told the village headman that he had killed her.

Held (20-8-43).—That the confession was admissible. In Kenya and Tanganyika a confession to a member of the regular Police Force, including a tribal retainer, is always inadmissible, but a confession to a person, such as an Administrative Officer, a chief, or a headman, is admissible, provided that at the time it is made he is not performing the functions of a police office, even though at other times, or in other circumstances, or even at a subsequent stage of the investigation of the same case, he may have occasion and authority to perform such functions.

Rex v. Kaboo wa Mulei 11 K. L. R. 93;

Rex v. Masola bin Msembe 1 T. T. L. R. 7:

Rex.v: Asmani Mwakewamba (ibid: 9);

Rex v. Abdallah bin Rashid 14 K. L. R. 142;

Rex v. Surumbu and others 7 E. A. C. A. 55 discussed.

Appellant absent. unrepresented.

### Spurling, Crown Counsel (Kenya), for the Crown:

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).—The only possible question that can arise in this case is with regard to the confession made by the appellant to the village headman, Shinda s/o Masanja. The evidence as to this was that Shinda was called in the night to the hut of the deceased by Kwalu, a brother. of the appellant, because he had seen a man in the hut. On his arrival the man came out and proved to be the appellant—Kwalu asked him why he had brought the children out, and he replied; "Because our mother is dead". Thereupon Shindasaid to him, "I saw your mother yesterday and she was quite normal. How comesit that she is dead now?", to which the appellant replied, "I have killed her", adding, in reply to a further question, that it was because she had bewitched his child. If this confession was admissible there can be no doubt as to the guilt of the appellant.

Section 25 of the Indian Evidence Act provides that an admission made to a police officer by an accused person cannot be proved against him, and numerous Indian cases have decided that the expression "police officer" is not to be<br>narrowly interpreted or confined to members of the regular police force: see R. v. Hurribole, I. C. 207 and Woodroffe 9th Ed. 285-7. The question has been considered in several reported cases in East Africa. In R. v. Masola bin Msembe (1925) 1 T. T. L. R. 7, the accused had been arrested by men performing the duties of police in the service of the Sultaness of the district. He was brought before the Sultaness and there made a statement. It was held by Russell, C. J., that in these circumstances he must be considered to have made the statement to, or while he was in the custody of, police officers, and that therefore the statement was inadmissible either by reason of section 25 or of section 26. In R. v. Asmani Mwakewamba (1927) 1 T. T. L. R. 9, a confession made to a headman was held to be inadmissible, but here, the accused, had been actually arrested by the headman upon the instructions of a police officer. The cases of R. v. Abdallah bin Rashid, 14 K. L. R. 142, and R. v. Surumbu and others, 7 E. A. C. A. 55, both decisions of this Court, dealt with confessions made to Administrative Officers. In the former the officer was also in charge of the Police and of the Prison in his District, and it was held that the proviso to section 8, sub-section 3 of the Police Decree, Zanzibar (which is identical with the proviso to section 7 (3) of the Police Ordinance, 1937 (Tanganyika), did not affect the inadmissibility of the confession; in the latter, though the Court held that the facts and circumstances showed that the District Officer was acting, not as a Magistrate, but as an investigating officer, at the time when the confession was made to him, so as to render the confession inadmissible, yet it was careful to add this qualification to the apparent generality of the decision in R. v. Abdullah Rashid: "At the same time we desire to make it plain that we are far from saying that because in certain districts the District Officer is also in charge of the Police he is only to be regarded as a magistrate, for the purposes of the Indian Evidence Act, when actually sitting in Court, and that therefore he is incapable of receiving an extrajudicial confession in any circumstances without its being rendered inadmissible by section 25".

In our opinion the position in Kenya and Tanganyika may be stated thus: a confession made to a member of the regular Police force, including a tribal retainer (R. v. Kaboo wa Mulei, 11 K. L. R. 93), is always inadmissible by reason of the express terms of section 25, but where a confession is made to a person who is not a member of the regular police force, and who may be considered not to have the same motive, of a desire to avoid trouble and obtain a reputation for professional efficiency, to distort it or procure it by improper means, then it will be admissible provided that at the time the person was not performing the functions of a policeman, as, for example, by having arrested the accused, not as a mere member of the public, but in virtue of some official or semi-official position; and a confession made in such circumstances will not be rendered inadmissible by reason of the fact that the person to whom it is made may at other times, or in other circumstances, or even at a subsequent stage of the investigation of the same case, have occasion and authority to perform the functions of a police officer.

In the present case we are clearly of opinion that the learned Judge was right in holding, as he had previously held in a very similar case, R. v. Mkanga s/o Mukame (Criminal Sessions 132/1942), that the confession was admissible. As he points out in his judgment, at the time when the confession was made, "the accused had not yet been arrested by anyone, the actual crime had not yet, indeed, been discovered, the confession came out almost casually, with no suspicion of threat or inducement".

For the foregoing reasons the appeal is dismissed.

\* Case reported by Sir Henry Webb, C. J.

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