[1940] EACA 23

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and LUCIE-SMITH, J. (Kenya)

## REX, Respondent

v.

## KEISHEIMEIZA w/o TINDIKAWA, Appellant Criminal Appeal No. 141 of 1940

(Appeal from the decision of H. M. High Court of Uganda)

Criminal Law—Voluntary extra-judicial confession—No categorical retraction— Corroboration.

Appeal from conviction of murder. Deceased was a co-wife of the appellant and was burnt to death when her hut was set on fire. The Crown case depended on a voluntary extra-judicial confession made by the appellant and never categorically retracted. At the most there was a bare implication of retraction without any reference to the confession. There was evidence of motive and of opportunity.

Held (8-11-40).—(1) That the confession having been made voluntarily and never having been categorically retracted or explained away did not require corroboration to support the conviction.

(2) Evidence merely of motive and opportunity is not corroboration.

Appeal dismissed.

Appellant absent, unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by WHITLEY, C. J.).—The conviction in this case was based almost entirely upon an extra-judicial confession by the appellant to Mr. Vaughan Jenkins, the magistrate, which reads as follows: —

"Keizhamaza w/o Tindikawa present before me states she wishes to tell about the burning of the house of her husband Tindikawa. She is informed that she need say nothing unless she wishes—she reiterates her desire to make a statement and says as follows: There is another wife of my husband by name Bahumura and she beat my daughter. While she was beating my daughter, she threatened to kill me and my daughter. She had killed my child and my cow and goats. Therefore I set fire to her house in order that I might not be killed myself. I believe that the statement was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted to be correct and thumbmarked by her and it contains a full and true account of the statement made by her. Sd. A. G. V. Jenkins, D. M., 12-8-40."

At the Preliminary Inquiry she made the following statement:—

"I was ill and slept with my daughter who heard the noise of fire and waked me and said 'The house is burnt' and I said, 'Who burnt the house?' and the girl went outside to call her stepfather, Lubogo. I went outside and people came. I have no witnesses to call."

At her trial she stated, "I have already denied in the Magistrate's Court having done this. I have nothing more to say". The learned trial Judge directed himself that the confession having been retracted required corroboration before it could be acted upon and he found corroboration in evidence of motive and opportunity. On this we would observe that whilst motive and opportunity are important matters to be considered when weighing the prosecution case they cannot in themselves be regarded as corroboration. We are however of the opinion that this confession cannot be said to have been categorically retracted. The appellant made no reference whatsoever to the confession either at the preliminary inquiry or at the trial. Putting it at the highest, what she stated at the preliminary inquiry cannot amount to more than a retraction by implication and on this we would refer to the judgment of this Court in the case of R. v. Robert Sinoya (6 E. A. C. A. 155) in which the authorities are reviewed and the opinion was expressed that the danger of acting upon a retracted confession in the absence of corroboration must depend to some extent upon the manner in which the retraction is made. We agree that in ordinary cases as a general rule when a confession is definitely and categorically retracted it is unsafe for the Court to act upon it without corroboration but if after enquiring into all the material points and surrounding circumstances the Court is fully satisfied that the confession cannot but be true there is no reason in law why the Court should not act upon it. (R. v. Durgaya, 3 Bom. L. R. 441.) The law is concisely summarized in Woodroffe and Ameer Ali, 9th Edition, at page 277, in the following words:— "It is unsafe for a Court to rely on and act on a confession which has been retracted, unless after consideration of the whole evidence in the case the Court is in the position to come to the unhesitating conclusion that the confession is true, that is to say, usually unless the confession is corroborated in material particulars by credible independent evidence or unless the character of the confession and the circumstances under which it was taken indicate its truth."

There has never been any suggestion in the present case that the confession was not voluntary and the appellant has given no reason why what she said to Mr. Jenkins should be other than the truth. Under all the circumstances of the case we consider that the trial Court was justified in accepting it as a true statement of what took place.

The only question remaining is whether it amounted to an unequivocal confession of murder. She admits having set fire to the deceased's hut. She did this during the night when she must have known that the deceased would probably be in the hut and she must be taken to have intended the probable and natural consequences of her act. Furthermore she says that the deceased had threatened to kill her and that she set fire to deceased's hut in order that she, the appellant, "might not be killed herself". That must mean that her intention was by setting fire to the hut to bring about the death of the deceased. We are accordingly of opinion that the appellant was rightly convicted of murder on her own confession. The appeal is dismissed.