[1945] EACA 33

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and SIR NORMAN WHITLEY, C. J. (Uganda)

REX, Respondent (Original Prosecutor)

(1) SAIDI s/o HIRBA, (2) GITIYADA s/o GITAROWET.

(3) GITCHEROT s/o MATU, Appellants (Original Accused Nos. 1, 2 and 3) Criminal Appeals Nos. 205, 206 and 207 of 1945

(Appeals from decision of H. M. High Court of Tanganyika)

Criminal Law—Preliminary Inquiry—Statement made by the accused during the Inquiry—Admitted in evidence at trial.

In the course of a preliminary inquiry into charges of murder against the three appellants at the conclusion of the examination in chief of every witness each of the appellants was given an opportunity to cross-examine the witness. In each case the first accused stated: "No, we killed the three women. I don't wish to ask any questions. There is nothing further to say"; and the other two<br>accused: "What Saidi has said is correct; we have nothing further to say". The learned magistrate did not record the statements of the accused until after the tenth witness had testified. At the trial of the accused the above statements of the accused were not allowed to be given in evidence.

*Held* (2-11-45).—That the evidence was on the record and was admissible.

## Holder for the Appellants.

Kingsley, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The three accused, Saidi bin Hirba, Gitiyada bin Gitarowet and Gitcherot bin Matu, all members of the Barabaig tribe, were charged with and convicted of the murder of three women who were engaged in gathering firewood on or about the 23rd March. 1945. The three accused were members of a hunting party and it is within the judicial knowledge of members of this Court that the Barabaig do not hesitate to kill members of other tribes for the sake of blooding their spears and acquiring favour in the eyes of their women folk. They think no more of such killings than they would of killing an animal and are known to have boasted of having done so, for the reasons which we have set out. Examining the evidence against each accused separately, we will consider the case of the second accused, Gitiyada, first. Against him there is the confession which he made to Mr. Fosbrooke, a first class magistrate on the 11th April, 1945. In that confession he said: "One man Saidi, Gidabungeda, Guga, Gitcherot and myself the fifth. Gitcherot suggested we should kill them. I said: 'Why? This is a safari to hunt game, not people'. Gitcherot replied: 'We will kill'. He jumped out at them, hit one woman with a stick and felled her to the ground. Saidi ran out and hit down another person, a woman. The third woman ran away. I said: 'Let her go, don't finish the lot'. Gitcherot said: 'If she goes she will spread the news'. He ran after her and hit her. She was running towards me. She fell down near me. I went up to her and hit her with a stick. Gitcherot came up and cut her throat with his spear. I was not holding her. Gitcherot held her under the chin with one hand and cut her throat with the other. He then cut off a hand and carried it off home.... Saidi also cut the throat of his victim when she fell. The third was struck down by Gitcherot, but Gidabungeda held her till Gitcherot cut her throat also. Saidi was helped by Guga. I helped Gitcherot by hitting the woman who was running away". The admissibility of this confession in evidence was the subject of a ruling by the learned trial Judge, who decided to admit it overruling the objections

that Gitiyada, when he made the confession, was in police custody, that $Mr$ . Fosbrooke was acting in a capacity other than that of a magistrate and that the confession was not made voluntarily. The confession, therefore, is evidence against the maker Gitiyada, whose case we are considering at the moment. At the preliminary inquiry Gitiyada made no reference whatever to the confession which he had made before Mr. Fosbrooke and the learned trial Judge decided that as against him the confession not having been categorically retracted could be accepted and acted upon without corroborative evidence, and in so holding he was guided by decisions of this Court, to which he referred. Against Gitivada there is also the evidence of the witness Warin, who said: "The three accused were with me in the hunting party .... There were 15 of us altogether. Accused 2 (Gitiyada) was the leader ... On the following morning accused 2 said to<br>me: 'Let us go and kill people'. Nobody else was present when he said this. I refused the invitation. Accused 2 then said to me 'Alright, let's go home'". Warin's evidence then proceeds to describe how the original hunting party split up into two parties, the smaller party consisting of the three accused and the witnesses Guga and Gidabungeda. There is evidence to show that the women met their deaths at the hands of members of this hunting party, which included in its number Gitiyada, the leader of the original hunting party. Next there is against Gitiyada the fact of his wearing the "Kadijand" beads, the significance of this in the circumstances of the case being that he had killed a human being (the evidence of his wife, Udangiyahand, the evidence of Udagunok and the opinions of the assessors that Gitiyada could only have worn the "Kadijand" beads because he had been given them by an elder of his tribe or by his wife, in consequence of his having killed someone). The inference of the learned Judge from the evidence was that he wore the. "Kadijand" beads after he had returned home because he had killed some human being. This inference, we think, was quite justified. Finally, there is the evidence of the magistrate, Mr. Gawthorne, that during the course of the preliminary inquiry before him Gitiyada and his companions stated that they had "killed three women". This evidence, although ruled inadmissible by the learned trial Judge was held to be admissible by this Court and was admitted on an application by the Crown, the appellants being given an opportunity to give or call any further evidence they wished to put before this Court.

There is also the evidence of the two witnesses, Guga and Gidabungeda, who, in our opinion, it would be safer to consider as accomplices though the learned trial Judge held otherwise. Their evidence receives adequate corroboration from some of the evidence to which we have already referred. There is thus ample evidence to support the conviction of Gitiyada, whose appeal is dismissed.

Taking the case of Gitcherot next, there is the confession of Gitiyada's implicating him in the murder, which may be taken into consideration against him (section 30, Indian Evidence Act), there is the evidence of the two accomplices, there is the telling corroborative evidence of Udagalagang that shortly after the hunting trip he showed her a human finger, this evidence corroborating the evidence of Guga and Gidabungeda and, finally, there is Mr. Gawthorne's evidence of his admission of guilt in the course of the preliminary inquiry. There is ample evidence to support his conviction and his appeal is dismissed.

The case against Saidi is not as strong as the case against his co-accused. He admittedly was a member of the hunting party responsible for the deaths of the three women and that in itself is a fact to be borne in mind in the case of all three accused, there is the confession of Gitiyada implicating him, there is the evidence of the two accomplices and there is the conclusive evidence of Mr. Gawthorne to which we have referred. The evidence against him is adequate to support his conviction and his appeal is also dismissed.