[1935] EACA 66

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JOSEPH SHERIDAN, P., LAW, C. J. (Zanzibar), and WEBB, J. (Kenya).

## REX, Respondent (Original Prosecutor) $v$ .

MUTWIWA s/o MAINGI, Appellant (Original Accused). Criminal Appeal 189/1934.

Confession—Retracted confession—Absence of corroboration— Accused's statement before Magistrate-Production of at trial—Functions of assessors.

The Magistrate who committed accused for trial found that there was "a prima facie case for the prosecution which rests on accused's confession taken on 22-10-34; it is rather discounted by accused's statement to me to-day (9-11-34)". $\mathbf{At}$ the trial before the Supreme Court accused retracted his confession and alleged that deceased was killed by one Kamau of whom he (accused) was in fear and to whom he had taken an oath not to divulge the true facts as to the murder. The trial Judge accepted the evidence of the confession, held that the confession was true-and that the statement retracting it was false and conviced the accused on his own confession. When called upon before sentence accused stated that he had nothing more to say and expressed his willingness to pay blood money. In his Memo of Appeal appellant reiterated his statement that deceased was killed by Kamau in a drunken brawl in which he (appellant) participated.

- Held (15-2-35).—That it is unsafe to conviet on a retracted confession in the absence of corroboration in material particulars (*Emperor* $v$ . Shambhu and another, I. L. R. (1932) 54 A11.350 followed). - Held Further.-That one of the objects in having assessors is that they may assist the Court on questions which may arise as to the laws or customs of any tribe caste or community. - Held Also.-That the statutory statement of the accused before the Magistrate, under section 219 Cr. Procedure Code, should be put in at the trial. (Reg. v. Gardner (1899) 1 Q. B. D. at 155 followed).

Wallace, Crown Counsel, for Crown.

Submitted that identity of deceased had been established, that accused's confession was voluntary and that the statements made in the confession were later confirmed on investiga-Some of the injuries inflicted on deceased confirmed tion. accused's confession as to the blows he struck and refuted his statement at the trial as to blows struck by another.

JUDGMENT.—This is a difficult case. The appellant has been convicted of the murder of a native Ndonye and his conviction rests on a confession made by him on the 22nd October,

1934, one day after his arrest. The murder took place in the month of July, 1934. The confession has all the appearances of having been made voluntarily for the Magistrate who recorded it explained to the appellant that he should not make it unless he wished to do so; this much is admitted by the appellant On the 9th November, 1934, the appellant in his himself. statement before the Magistrate retracted the confession and accused one Kamau of having killed Ndonye. He said that he had been compelled by Kamau to take a pledge that he should be silent as to the circumstances of the death of Ndonye but that he made the statement recorded by the Magistrate "because I see that Kamau has deceived me and spoken against me At the trial he adhered to his retraction and about this". blamed Kamau for the death of Ndonye. The statement made before the committing Magistrate was not put in as evidence, Crown Counsel being of the opinion that it did not assist one side or the other. In excluding it there was a misapprehension as to the correct practice for it is clear from the judgment of Lord Russell of Killowen, C. J. in Regina v. Gardner (1899) 1 Q. B. D. p. 150 at p. 155, that the statement should have been put in whether it spoke for or against the appellant, treating it not as evidence but as a statement made by him. However, the learned trial Judge did not fail to observe that this statement retracting for the first time the confession of the 22nd October, 1934, had been made. The judgment refers to different cases on the subject of retracted confessions, the learned Judge being of the opinion that "the law on the subject of a retracted confession unsupported by independent evidence is by no means free from doubt". In the case before us there is no real corroboration, for though the description of where the blows were struck may be said to agree substantially with the evidence of the doctor as to the position of the wounds, yet that fact is equally consistent with the blows having been struck by another man and the appellant does not deny whether in his statement before the Magistrate or at the trial that he was present. The question then is whether the appellant can safely be convicted on his uncorroborated confession which he subsequently retracted before the committing Magistrate and at the We have consulted two cases of recent date in which trial. the question has been considered. In the case of Shconarain Singh v. King Emperor, I. L. R. (1929) 8, Patna, 262 at 265, TERRELL, C. J., savs: "It is true that a retracted confession must be regarded with the utmost suspicion. It must be regarded with stronger suspicion than that which attaches to the confession of an approver who gives evidence in Court. But nevertheless such evidence is admissible and criticisms upon it can only be directed to its cogency. In this case the confession implicates the person making it, that is to say, Ramchander, and therefore it becomes admissible. It was made immediately after the occurrence which fact removes to some

extent the suspicion which inherently attaches to it. It is corroborated in a material particular because not only Ramchander but one of the other persons mentioned by him, Ram Sawarath, was apprehended on the spot. It may therefore properly be taken into account by a jury." The conviction in that case was for abetting housebreaking and the confession was made by Ramchander on the spot and immediately after his apprehension. The next case is that of Emperor v. Shambhu and Another, I. L. R. (1932), 54 All. 350, in which SIR GRIMwood MEARS, C. J., at p. 358 says: "Lalain did not adhere to this statement either in the Court of the committing Magistrate or in the Court of Session. The evidentiary value of a retracted confession is very little and it is a rule of practice, as also a rule of prudence, that it is not safe to act on a retracted confession of an accused person unless it is corroborated in material particulars". This case was not brought to the notice of the trial Judge, and it shows that the proposition which he quotes from Stuart Cunningham's Indian Evidence Act is too broadly A question arose in the case whether the learned Judge $_{\rm stated.}$ was entitled to take into consideration the opinion, unsupported by evidence, of one of the assessors that a particular form of oath which the appellant said Kamau compelled him to take was unknown amongst Wakama. We think the learned Judge was entitled to take into consideration this opinion, though it does not rule out the fact of appellant having been pledged to keep silent in some such manner as he alleged. On the subject of the functions of the assessors it is provided by section 246 of the Criminal Procedure Code that except in the case of trials of Europeans all trials before the Supreme Court shall be with the aid of assessors and by section 304 that the Judge in giving judgment shall not be bound to conform to the opinion of the assessors. The provision for holding trials with the aid of assessors originates from India and the manner in which their functions are regarded there is shown from the following passage in the case King Emperor v. Tirumal Reddi, 24 Madras, taken from the judgment of BHASHYAM AYYANGAR, J.:-

"But in my opinion, assessors are analogous to expert witnesses and in principle the opinion of an assessor is substantially on the same footing as the opinion evidence of expert witnesses. A brief retrospect of Indian Legislation in regard to trial of criminal cases with the aid of assessors would clearly show that such is the correct view and it is also in conformity with the institution of assessors in England in civil cases, especially in Admiralty, Ecclesi-Patent and similar cases (vide Volume I of astical. Encyclopaedia of Laws of England, page 348). The earliest Indian Legislation which authorized European functionaries presiding in Court of Session to constitute two or more respectable natives to assist them as assessors 'with a view

to the advantages derivable from their observations particularly in the examination of witnesses' is Regulation VI of 1832 which was applicable only to Bengal. Act VII of 1843 extended that system to the Presidency of Madras, and it was provided by section 32 of that Act that Sessions Judges may, in the trial of criminal cases, avail themselves of the assistance of respectable natives or other persons by constituting two or more such persons, assessors or members of the Court 'with a view to the advantages derivable from their observations, particularly in examination of witnesses'. It was further provided that the opinion of each of the assessors shall be given separately and discussed and, if so desired, recorded in writing. I may also observe that, under that Act, the opinion of assessors had a potentiality which it has ceased to have since the enactment of the Code of 1861. Thus it will be seen that provision was made by the Legislature for Europeans administering justice in a foreign land and therefore deficient in their knowledge of the customs and habits of the parties and witnesses appearing before them and also deficient in judging of their demeanour in the witness box. having the benefit of the opinion of two or more respectable natives of the land as assessors possessing such knowledge and judgment. Such being the principle underlying the institution of assessors in India, which is the same as that in England, in the class of cases already referred to, the opinion of an assessor given upon the whole case tried before a Court of Session or any portion of such case is, in principle, on the same footing as the opinion evidence of a person specially skilled in foreign law. science or art."

In our opinion the object in having assessors in non-European cases must be the same as is provided for in Civil Cases by section 89 (1) of the Civil Procedure Code reading: "Any Court may if it thinks fit and shall upon the request of either party to a cause or matter pending before it in which questions may arise as to the laws or customs of any tribe, caste or community, summon to its assistance one or more competent assessors, and such assessors shall attend and assist accordingly".

I believe we are correct in saying that this view of the functions of assessors has been uniformly acted upon in East Africa in the past; it is to our mind a reasonable view and one seem. ingly consistent with that taken in India.

In conclusion, we are of opinion that it would be unsafe to convict on the retracted confession in this case having regard to the rule of practice referred to by SIR GRIMWOOD MEARS, C. J., in Emperor v. Shambhu and Another (supra). The appeal is allowed, the appellant acquitted and directed to be released forthwith.