[1947] EACA 33

# COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

### REX, Respondent (Original Prosecutor)

### (1) SIKILIZA s/o TUHUNZANT, (2) MASIMELE d/o MKARAKASE Appellants (Original Accused)

#### Criminal Appeals Nos. 109 and 110 of 1947

#### (Appeal from decision of H. M. High Court of Tanganvika)

Criminal law-Murder-Provocation-Manslaughter-Voluntary statement made by accused—Incorrectly termed "confession".

Both appellants were convicted of the murder of second appellant's husband. The facts were that both appellants and a third man were present when the deceased was killed. Subsequently both appellants called at a police station where the second appellant reported that her husband was missing. Later they returned to the police station again and made different statements. They were arrested and while in custody showed to the police the spot where the deceased had been killed and identified parts of a human body found there as being the remains of the deceased. Both appellants made voluntary statements before a magistrate which were of an exculpatory character but showed that the deceased had died in a quarrel with which the appellants were concerned. The first appellant, however, called a witness at the trial, who stated that the first appellant had told him that he had killed the deceased during a scuffle in which his left thumb had almost been bitten off.

#### Both appellants appealed.

Held $(30-7-47)$ .—(1) That the evidence did not support the conviction of the second appellant. (2) That the evidence showed that the first appellant killed the deceased in the heat

of passion during a sudden quarrel and under the influence of provocation.

Observations on the practice of calling voluntary statements "confessions".

Conviction of first appellant for murder quashed and a conviction for manslaughter substituted. Sentence of ten years' I. H. L. imposed. Appeal of second appellant allowed and conviction quashed.

### Appellants absent, unrepresented.

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

JUDGMENT (delivered by NIHILL, C. J.).—This case has given the Court considerable difficulty. In order to arrive at a conclusion we think it best to state in detail the facts as disclosed by the record. According to the police evidence<br>the two appellants came to the Police Station at Kimamba in Tanganyika on 3rd December, 1946, when the second appellant reported that her husband, Dodoka s/o Hopoka, had been missing for two weeks. The police promised to make inquiries and the couple left. They returned on 26th December and made a different statement, in consequence of which they were arrested, together with a man named Bakari, and all three were later charged with the murder of the second appellant's husband, Dodoka. During the police inquiries preceding the appearance of the three accused before a Magistrate, the police, on information supplied by the appellants, found parts of a human body in a sisal plantation. These remains were identified by the appellants as the remains of the deceased man Dodoka. On 27th December both the appellants were brought before Mr. R. S. Llovd, a Third Class Magistrate, stationed in Kilosa, who deposed at the trial that they both made voluntary statements to him, and these statements were put in as Exs. G. & H. It is unfortunate that these statements seem to have been labelled as "confessions" from the very start, although a careful reading of them shows them to be nothing of the kind. The committing Magistrate, Mr. Piggott, refers to them as such in his order of committal dated 10th January. 1947, and Mr. Lloyd in his evidence at the trial stated that he had taken the

"confessions" in the form laid down at pages 78 and 79 of the Magistrate's handbook. We think this loose description of voluntary statements made by an accused person to a Magistrate is to be deprecated. Magistrates who take such statements will be much better advised merely to refer to them as voluntary statements recorded by them without attempting to assess their incriminating or exculpatory character. Turning to the statements themselves, that of the first appellant Sikiliza, we find it is completely exculpatory—he said as follows:—

"On the road the deceased, Dodoka bin Hopoka, began to hit and quarrel with his wife (i.e. the second appellant). The wife made a noise and shouted, 'Attention all of you, I am dying, he is hurting me'. I went up to the two who were quarrelling to stop the quarrel. There was another man with me. This latter man hit the deceased with a panga. The deceased fell down. When he fell he remained on the ground. When we went to look at the deceased on the next morning he had died".

There is not the faintest trace of any admission here by the first appellant that he was in any way criminally responsible for the death of the deceased, and we are frankly puzzled how it came about that both the committing Magistrate and the trial Judge seem to have regarded it as in the nature of a confession. We can only assume that the fact that both appellants who at least knew that Dodoka was dead made a false report at the police station on the first occassion weighed heavily in their minds.

The statement of the second appellant, the wife of the deceased, is also exculpatory, although it is incriminating as regards the first appellant. She said:---

"On the road back my husband said to me that the clothes of my child were going into holes—Bakari (i.e. the third accused before the Magistrate) began to hit my husband and my husband fell down. My husband got up. Sikiliza (first appellant) hit my husband on the back. I said to those two persons 'Why are you hitting my husband?' I ran away to my house."

Then follows her explanation why she did not make an immediate report to the police. She stated that she was afraid to because the first appellant told her that if she did she would be also implicated. As it turned out, this advice given her by the first appellant was an intelligent anticipation of what actually occurred. Why this woman was ever charged with the murder of her husband we find it difficult to understand. There was not a shred of evidence against her other than her false report at the police station on 3rd December. Had she not been charged but had been called instead as a witness for the Crown, her statement might have at least amounted to a prima facie case against the first appellant and the third accused Bakari, who was subsequently discharged by the Magistrate. As it is, her statement, so far as it incriminates the first appellant, is no evidence against him and cannot be used as such, an elementary principle of law to which the trial Judge appears to have paid scant attention. The committing Magistrate quite rightly discharged Bakari, the third accused, because, as he pointed out, the only evidence against him was contained in the statements of the first and second accused. He seems to have overlooked the fact that by the same reasoning there was no evidence against the first accused unless, as we suppose we must assume, that he committed them for trial as accessories after the fact, because for some weeks they did not report the death of the deceased to the police. We now come to the trial at which the two appellants entered the following pleas: -

First appellant: "I have killed".

Second appellant: "I saw a fighting. I saw the killing".

It is to be noticed that this was the first admission made by the first appellant that he had had a hand in the killing, but it was entered rightly as a plea of not guilty and cannot be used against him. The plea of second appellant was entirely consistent with her previous statement. Neither appellants gave evidence but chose to stand on their statements made to Mr. Lloyd. Two witnesses for the defence were called, however, to establish that the left thumb of the first appellant had been bitten badly in a scuffle immediately preceding the

death of the deceased. The first witness, a Senior Sub-assistant Surgeon, deposed that he could not remember what the first appellant had said about his nail when he examined him. According to his deposition, which was read at the trial, this witness deposed that the first appellant was suffering from an injured nail which could have been caused by a bite. The second defence witness, a police officer, stated that he remembered that the first appellant did tell him that his left thumb had been almost bitten off in a scuffle with the deceased.

There is no need for us to relate the evidence led for the prosecution in detail as it was confined to proving the voluntary statements, proving the reports false and true made by the appellants to the police station, and proving of finding of the remains of the deceased.

The trial Judge, in a very short judgment, came to the conclusion that getting one's thumb bitten could not (presumably under any circumstances) amount to grave and sudden provocation, and he assumed, on what evidence we know not. that in any case it was probable that the bite was not the cause of the attack on the deceased, but was part of the deceased's defence against an attack by the first appellant. He then found the following facts that the first appellant murdered and that the second appellant stood by and helped to hide the crime. Nowhere is there any indication on the record that the trial Judge addressed his mind at all to the assertion made by the second appellant that she was a frightened woman who, knowing that her husband had met his death in a drunken brawl, was afraid to go to the police. The above review will have made it clear that the conviction for murder entered against the second accused cannot stand. In her second ground of appeal she asserts that there was no justice in her being sentenced to death, and she humbly prays that the Court will reconsider her unjust sentence and set it aside. Her prayer is granted and if she has already paid a high price for her timidity she must remember that she did wrong in suppressing the fact of her husband's death for so long. Before we leave this woman, it may be as well perhaps to point out that in her Allocutus which preceded the death sentence she again repeated substantially the story she had told from the first.

With regard to the first appellant, the Court is in some difficulty. So far as the evidence against him is concerned there was insufficient at his trial to convict him either of murder or manslaughter, and Crown Counsel has frankly conceded that he cannot ask that the conviction of either appellant be maintained. We are faced, however, with the fact that in his memorandum of appeal he prays only for a reduction of his offence from murder to manslaughter, and it is evident also from the evidence of Constable Kubyula, who was called for the defence, that the first appellant's real defence at his trial was not that he had had nothing to do with the killing of the deceased but that he had killed him during a scuffle in which his left thumb had almost been bitten off. The first appellant did not give his evidence at his trial or add anything to the voluntary statement he had made to Mr. Lloyd, but in his Allocutus he said he beat the deceased with a stick after he had been bitten. We feel that there is sufficient material before us on which we can conclude that the first appellant did kill the deceased in the heat of passion during a sudden quarrel and under the influence of the provocation received by the thumb bite. We accordingly quash the conviction for murder and substitute one for manslaughter. As regards sentence we must take into account that the appellant's conduct in hiding the body and for a time suppressing any report of the incident, together with the duress he exercised over the second appellant reveals a high degree of criminality. We sentence him to ten years' imprisonment with hard labour.

The order of the Court is accordingly as follows: —

First appellant.—Conviction for murder and sentence of death quashed and a conviction for manslaughter substituted. Sentence of ten years' imprisonment with hard labour imposed to date from 2nd April, 1947.

Second appellant.—Conviction for murder and sentence of death quashed. To be set at liberty forthwith.