[1943] EACA 21

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

# REX, Respondent (Original Prosecutor)

### AMOSI ONOKA s/o AMBOYA, Appellant (Original Accused)

### Criminal Appeal No. 186 of 1942

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

Criminal law-Manslaughter by negligence-Plea of guilty-Necessity for full explanation by Court of constituents of the charge.

The facts in so far as they are material to the points on which the case is reported appear from the Judgment.

Held (18-2-43).—(1) Before a plea of guilty to manslaughter by negligence is taken especially in the trial of a native, a careful explanation of the several constituents of the charge should be given to the accused by the Court as follows:-

(i) That in driving his motor vehicle he had a duty to take care:

(ii) that there was a failure on his part to discharge that duty;

- (iii) that the deceased's death was due to his default; and - (iv) that his negligence went beyond a mere matter of compensation and showed such a disregard for the life and safety of others as to amount to a crime against the State and constituted conduct deserving of punishment.

(2) It is unsafe to proceed on what is on the depositions for the purpose of deciding whether a case of culpable negligence has been made out, for witnesses often give different evidence at the trial, especially when subjected to searching cross-examination or questioning by the Court when the accused is not represented by Counsel.

Semble, in a highly technical charge such as manslaughter by negligence, and when dealing with a native, the Court should be very chary of entering a plea of guilty and should in most cases hear and consider the evidence and so satisfy itself that the Crown have discharged the burden of proof which is laid upon the prosecution.<br>Dictum in R. v Yokana Kafero, 3 E. A. C. A. p. 104 approved.

Dictum in R. v. Danieri $s/o$ Kite, 10 E. A. C. A. 42 approved.

Appeal allowed: and the trial declared to be a nullity. $\Box$

#### Appellant absent, unrepresented.

# Stacey, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by MARK WILSON, Ag. C. J.).—The appellant, who is a military motor driver, was charged on an information for manslaughter. The proceedings are recorded as follows: "October 30th, 1942, Stuart for prosecution. Accused in person. Charge read and explained. Plea: I admit it. Judge: Accepted as plea of guilty. Found guilty. Stuart relates facts. Nothing known. Allocutus: Accused—Nothing to say. Sentence of 18 months hard labour. Informed of right of appeal".

When the appeal came on for hearing it did not seem to us clear whether. the accused was fully aware of the nature and implications of the charge when he pleaded to it and whether his plea of "I admit it" constituted an unequivocal admission of guilt. The Court accordingly made the following Order: -

"Before deciding this appeal we consider that under Rule 18 of the Court of Appeal Rules, 1925, this case should be referred back to the learned trial $\therefore$ Judge for a report on the question whether the accused's plea can be taken as i an unequivocal plea of guilty. In particular we should like to know whether the charge—at all times a most difficult one to explain to an African native-

was explained to the accused in the terms referred to in $\text{Re}x$ v. Yokana, 3 E. A. C. A. 104. We enclose a copy of the judgment of this Court in Rex $v$ . Danieri on the point, for the Judge's use; the judgment speaks for itself. If possible we should like to have the report as early as possible, so that the appeal may be disposed of during the present Sessions."

The learned trial Judge has now made his report in the following terms:

"The accused was charged with having unlawfully killed one Abu Waiswa. In accordance with Section 253 of the Criminal Procedure Code the information was read over, explained and interpreted to the accused by an Officer of the Court. The accused said "I admit it". This was certainly not a plea of "not guilty" and it indicated that the accused did not wish to put himself upon his trial. I was satisfied that in the circumstances of the case it was a plea of guilty and that it was not necessary to probe any further into the question as to how much the admission involved. The depositions indicated a serious case of culpable negligence; the accused was aware of the facts on which the charge was based. It was not a case in which it was alleged that death was due to any violence on the part of the accused; the deceased was killed owing to the overturning of a lorry driven by accused. If in these circumstances the accused admitted that he caused the death of the deceased and that he did this unlawfully, there was no necessity for further investigation in order to ascertain that he meant to plead guilty. Every person who drives a vehicle knows that he is bound to use reasonable care and take reasonable precautions to avoid danger (Section 207 Penal Code) and it is not necessary to explain this. The accused's plea was an admission that he had failed in that duty and that his failure caused the death of the deceased. He knew he was being charged with a crime and not merely being asked to pay compensation to anyone for a tort. Having regard to the facts the sentence was not excessive."

On full consideration of the above we have come to the conclusion that the conviction cannot stand. It is clear from the report that it was not explained to the accused that the constituents of the charge of manslaughter in this case were: (i) that in driving his motor vehicle he had a duty to take care, (ii) that there was a failure on his part to discharge that duty, (iii) that the deceased's death was due to his default, and (iv) that his negligence went beyond a mere matter of compensation and showed such a disregard for the life and safety of others as to amount to a crime against the State and constituted conduct deserving of punishment. We think that a careful explanation in these terms is the very least precaution that should be observed in every case of manslaughter by negligence. In R. v. Yokana Kafero, 3 E. A. C. A. 104, this Court went further and said: "It appears to us that in a highly technical case such as this, and when dealing with a native, the Court should be very chary of entering a plea of guilty and should in most cases hear and consider the evidence and so satisfy itself that the Crown have discharged the burden of proof which is laid upon the prosecution". Again in R. v. Danieri Bisamuli $s/o$ Kite, 10 E. A. C. A. 42, this court said: "We go so far as to say that in the vast majority of cases where the ordinary native is charged with manslaughter by negligence there can be but one safe way of eliciting whether the crime has been brought home to the accused, and that is by deciding the issue after hearing the evidence for the Crown and the defence".

We would remark that in our experience the plea "I admit it", unless it follows a full and detailed explanation of the constituents of the charge, very often means no more than an admission of the central fact of the charge, in this case the actual causing of the death. We would add that it is unsafe to proceed on what is on the depositions for the purpose of deciding whether a case of culpable negligence has been made out, for witnesses often give different evidence at the

trial, especially when subjected to searching cross-examination, or questioning by the Court when the accused is not represented by Counsel. It may also be pointed out that though the depositions of the Crown witnesses at the preliminary enquiry may have established a prima facie case of manslaughter by negligence the accused was far from accepting or admitting the truth of their evidence. Both in his cross-examination of the witnesses and in his statement to the Police (which he adopted before the magistrate) he put forward an account of what happened which, if true, would definitely negative any culpable negligence on his part. He did not admit the allegation that he was drunk or that the crash was due to any cause but the faulty, worn-out steering mechanism of his lorry. He succeeded in establishing in cross-examination (i) that he had previously reported this fault to his superior officer, (ii) that the king-pins were in fact somewhat worn, and (iii) that no spare king-pins were available to replace the worn ones at the time he reported the matter. It seems to us, in view of these facts, that it can hardly be said that the depositions revealed a case wholly unfavourable to the accused or one on which it was inevitable that he would have been convicted if the evidence for both sides had been heard in full.

There is another consideration which may be mentioned here as relevant, namely that the ordinary African before the advent of British rule had little understanding of our conception of what a crime is. Under native law and custom every killing, whether intentional or accidental, was normally a matter for settlement by compensation and generally speaking it was only if the killer refused or neglected to pay compensation as settled by the elders that any question arose of punishing him directly and personally after our fashion. For this reason it is highly desirable that in matters of this kind, where someone has been killed in an indirect way by negligence, the accused should be made fully aware, of course in the simplest language possible, that our law regards such killing as a crime against the State which involves personal punishment and is not a mere matter of compensation.

We are of opinion for the reasons given above that the proceedings in this case were a nullity. The conviction and sentence are accordingly quashed and the accused is discharged. If the Crown decides to proceed further with the case, no doubt account will be taken of the period of imprisonment which the accused has already served under this sentence if he should be again convicted.