[1939] EACA 128

# COURT OF APPEAL FOR EASTERN AFRICA

BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)

## REX, Respondent

#### versus

## MUYOVYA BIN MSUMA, Appellant

# CRIMINAL APPEAL No. 65 OF 1939

(Appeal from conviction by H. M. High Court of Tanganyika)

Criminal law—Evidence—Hearsay—Dying statement—Non-direction.

The appellant appealed from a conviction of murder based on a statement which the deceased was said to have made to different persons, subsequent to being wounded that the appellant was his assailant. No direction was given as to the caution with which dying statements should be received.

Held $(13-5-39)$ .—That a careful direction should have been given by the Judge as to the nature of evidence of dying statements and the caution with which it should be received. R. v. Mwinyibegu and Another (2 E. A. C. A. 70) applied. (Appeal allowed.)

Appellant absent, unrepresented.

Aubrey, Crown Counsel (Uganda), for the Crown.

\* JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—In this case the learned trial Judge convicted the appellant of murder on a statement which the deceased is said to have made to different persons, subsequent to his being wounded, that the appellant was his assailant. There is no note on the record of the addresses of counsel nor is there any note of the direction that the learned Judge gave to himself or the assessors. From his judgment it is safe to say that no direction was given as to the caution with which dying statements should be received. Not for the first time does this Court set out the instructive passage to be found in Field on Evidence (Seventh Edition)-

"The caution with which this kind of testimony should be received has often been commented upon. The test of the crossexamination may be wholly wanting and ... the particulars of the violence may have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately observed."

This caution is even more necessary in this country where such statements do not depend for their admissibility, as they do in England, on their solemnity because of the declarant having a settled belief that he is about to die and what is stated being the equivalent of an oath. The weight to be attached to such statements in this country must consequently be less than that attached to them in England. As has been said by this Court previously in the case of $\text{Re}x$ v.

\* This judgment was signed by Sir Joseph Sheridan, C. J., and Sir Llewelyn Dalton, C. J.

Mwinyibegu and Another (1935 2 E. A. C. A. p. 70 at p. 71), we are not prepared to rule that in no circumstances can a conviction proceed upon evidence consisting of a dying declaration, but on the other hand we are prepared to say that a careful direction should be given by the Judge as to the nature of such evidence and the caution with which it should be received.

In the present case the deceased was attacked at night presumably in circumstances of some confusion and surprise. How could it have been otherwise? This should have been considered and weighed by the learned Judge. The fact that the deceased is said to have told different persons that the appellant was his assailant was stressed. by him but it is to be noted that while this is evidence of the consistency of his belief that such was the case, it is no guarantee of accuracy. This was laid down in Mwinyibegu's case and has also been laid down by the Court of Criminal Appeal in England. As to whether the deceased accurately identified his assailant, according to his widow who gave evidence he said on one occasion "The man who has hit me appears to be like Muyovya". (True this was in cross-examination.) Again the account of what the deceased said varies. According to his widow in answer to a question put by the Court he said "The man who attacked me is Muyovya, I did not see anyone else", whereas to nursing sister Larsen he said that there were two men but one ran off and he did not recognize him as it was dark. There is one piece of evidence namely the finding of the appellant's sword buried in his shamba but the learned judge has not referred to it and whether or not he attached any importance to it we cannot say. In the circumstances of this case where the trial Judge has refrained from any reference to this evidence we are not prepared to say what its value is as corroborative evidence.

Because of the failure to direct himself and the assessors and to weigh the evidence, so far as the record discloses, our opinion is that it would not be safe to allow the conviction to stand.

The appeal is allowed and the appellant is directed to be set at liberty.