[1939] EACA 155

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda), and FRANCIS, J. (Uganda)

## **REX, Respondent (Original Prosecutor)**

## ROBERT SINOYA, DAVIDE SINOYA, Appellants (Original Accused Nos. 1 and 2)

## Cr. Apps. Nos. 116 and 117 of 1939

(Appeal from decision of H. M. High Court of Nyasaland) Criminal law—Murder—Retraction of confession—Common intention -Parties to offences-Principal offenders.

Appellants appealed from convictions of murder.

The first appellant had twice confessed to his guilt, once to a magistrate and again in his statutory statement at the preliminary inquiry. At the trial he denied that he had killed the deceased or been present at her killing but he did not refer to the confession or to the statutory statement in both of which he had given a detailed account of the part he had played in the murder. The confessions were corroborated in material particulars but the trial Judge gave no direction as to corroboration.

The guilt of the second appellant depended upon whether his statutory statement amounted to an admission of guilt. The statement was to the effect that although he had struck no blow and had played no active part in the actual killing he was one of those who after many refusals finally agreed on the death of the deceased, that he was present when she was done to death and raised no objection and that he helped to bury the deceased after stripping her.

*Held* $(21-10-39)$ .—(1) (Semble) The danger of acting upon a retracted confession in the absence of corroboration must depend to some extent upon the manner in which the retraction is made: Where the accused gives an account as to why he made the confession and why he retracted it the danger must be greater than in a case in which the accused gives no reason<br>for denying his previously admitted guilt nor refers to the confession.

(2) The statutory statement made by the second appellant amounted to an admission of guilt of murder.

Appeals dismissed.

Appellants absent unrepresented.

Aubrey, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The appellants were convicted of the murder of a woman named Esnat. The first appellant, Robert, made a confession before the Assistant District Commissioner, Kota Kota, which was proved at the trial. There is no reason to doubt that the confession was made voluntarily. The record of the confession is as follows:

'Wilson and Davide were together, Wilson asked me to kill a woman Esnat because he had been committing adultery with her and she was now pregnant. Then I killed her. Wilson and Davide were with me. $\hat{\mathbf{l}}$ killed her with a heavy piece of wood; that is it (Exhibit A), which Wilson gave me. Wilson brought the woman from her mother's house, she came near the chief's house; then Wilson began to hit the woman with Exhibit A, and hit her on her back about the waist, then Satan entered me and I took the club and hit her on the back of the neck and she fell down dead. Then Wilson kicked her in the face. Davide told Wilson to get a hoe and helped us to bury her."

Later he made a statutory statement before Mr. Allen, the magistrate who held the preliminary inquiry. The record of the statement is as follows: $-$

"The trouble was that Wilson slept with Esnat and Chimuta troubled me five times to settle the case. Finally he put it in my head to kill Esnat while he was away at the beer drink. Davide was present at these calls. On the day of the killing I saw him put Exhibit C on my verandah before leaving. I waited until the people were all gone. Then Wilson called Esnat from her house to where we were waiting, Davide and I, on the other side near the chief's house. As she was lame Wilson helped her along. He then picked up Exhibit C which Chimuta had put ready on his verandah and hit her across the loins from behind. Satan then entered into me and I struck her on the back of the head across the neck with the club. Wilson slapped her in the face until she died. I left the body lying there and the club and went away and sat on my verandah as I was not to fear. I do not know what was done with the body or Exhibit C. I have no more words. Chimuta caused us to do this. After he came back he said, 'Well, have you done it'; I said 'Yes, now we will both die'."

The case against this appellant rests mainly upon the confession and statement. The truth of both was accepted by the learned trial Judge and the assessors and the appellant convicted. But it is said that there was no direction as to whether there was corroboration of the confession and statement in material particulars, on the assumption that the appellant retracted the admission of guilt made by him in the confession and statement. At his trial the appellant pleaded not guilty and in a statement from the dock he said: $-$

"I did not kill the person. War (i.e. the constable) came and I was arrested. When the war came they asked me to find the piece of wood. I went there with Kapelula in search of this piece of wood. While we were going along Kapelula took this piece of wood and hit me with it across the back. It was Kapelula who picked it up. I did not point it out to him. I don't remember being with Wilson on Wednesday. When I arrived at the boma I heard that it was I who killed the person. I was told that it was Wilson who told the *boma* that it was I who killed. I swear and say that I did not kill the person. I have no witnesses."

This statement amounts to a denial that he killed Esnat or was present at the time she was killed. He does not, in making this statement, make any reference either to his confession or his statutory statement in both of which he gives a detailed account of the part he played in the murder.

In that respect this case differs from $\text{Rex } v$ . Mutwiwa s/o Maingi, 2 E. A. C. A. 66. In that case the appellant in retracting his previous confession gave a detailed account of how he had made the confession because he had been compelled by one Kamau to take a pledge that he should be silent as to the circumstances of the death of one Nodonye and that his reason for retracting the confession was that Kamau had deceived him and spoken against him in the matter. In that case it will be seen that not only did the appellant address his mind to his confession but gave reasons for his having made it and subsequently retracted it. The headnote to the case is "that it is unsafe to convict on a retracted confession in the absence of corroboration in material particulars (*Emperor v. Shambhu and Another*, I. L. R. (1932) 54 All. 350 followed)". The relevant passage in Shambhu's case which appears in the judgment of Sir Grimwood Mears, C. J., at page 358, is: $-$

"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."

We cannot say in what terms exactly the confession was retracted; whether attention was directed to the confession and whether reasons for retracting it were given. It occurs to us that the danger of acting upon a retracted confession in the absence of corroboration must depend to some extent upon the manner in which the retraction is made.

In Mutwiwa's case where the accused gave a detailed account as to why he made the confession' and why he retracted it, the danger of acting on the confession in the absence of corroboration must be greater than in a case like the present where the appellant neither gives reasons for denying his previously admitted guilt nor refers to the confession.

However, it so happens, that in the present case there is adequate corroboration of the confession in material paticulars. The appellant says that he hit the woman on the back of the head with a club and she fell down dead (this in his confession to Mr. Parker) and in his statutory statement that he struck her on the back of the head across her neck with a club. These statements receive corroboration from the medical evidence that "on the left side of the base of the skull one of the sutures had loosened", "suture" being explained as the place where two bones of the skull join, and that this would have been due to the application of force "due to a blow or a fall to the skull". Then there is the evidence of Milango that the deceased's "neck was beaten all round". In his confession he says: "Davide told Wilson to get a hoe and helped us to bury her". There is independent evidence to show that a hoe was probably used in burying the body and the hoe bore marks of having been so used. Robert also in his statutory statement identified the piece of wood with which deceased was struck, a heavy piece of wood which Chimuta recognized as the bar missing from his kraal. This piece of wood was found by Constable Mataka at a spot pointed out by Robert. All this evidence not only gives the lie to the appellant's statement at the trial that he was not present when the murder took place, but goes further and points to his denial having been made because his presence there was of a guilty nature. So much for the first appellant.

With regard to the second appellant, Davide, he made no statement to Mr. Parker, but in answer to the charge before the committing magistrate he said: -

"It is the fault of Chimuta. He told us he was tired of paying out damages and that Wilson was in trouble over Esnat. He suggested that we should kill her. Five times he asked us to do this. We refused. The sixth day we decided to kill her and Chimuta brought the bar of his kraal, Exhibit C, and put it in Robert's hand, saying, 'I am going away to Milongo'. Robert and I then went to a piece of hollow ground about 300 yards from the village while Wilson went to call the victim to come to us. It was his suggestion. Wilson came there with Esnat, bringing Exhibit C, and struck her across the back and she fell down. Wilson then struck her on the head with Exhibit C and killed her. I did not touch her. Robert sent Wilson to bring a hoe. He and Robert dug a grave among the young mangoes but it was too near the village, so we did not bury her there. Further on there was an old game pit and in the earth there we buried her. I did not dig the grave but helped to bury her. We stripped her and put her cloth and stick where they were found. Robert and I then went back to our gardens and Wilson to the village. Zalira was not with us and knew nothing."

The question arises on this statement whether it amounts to an admission of guilt. In our opinion it does for in it Davide says that after refusing five times he and other¹ decided to kill the woman and though he says he did not touch the woman he never attempted to disassociate himself from the common intention of killing her. He was one of those who, after many refusals, agreed upon the death of the woman; he was present when she was done to death and he helped to bury her after stripping her.

Against this appellant there is, if anything, more corroborative evidence than in the case of Robert, such for instance that the body was found naked when exhumed and that it had been buried in an old game pit. There is also the knowledge of the place on the body where the woman was struck and of the kind of weapon used. Davide in his statutory statement described how Wilson brought the piece of wood referred to by Robert and how the latter struck the deceased with it. And finally he states how they put her cloth and stick where they were found by Chimuta some distance from the body. In the case of Davide we are also satisfied that his statement has been adequately corroborated and indeed in his case, apart from his pleading not guilty in saying "I did not kill", what he stated later at the trial: "I don't know that I killed a person; I have no more words; I have no witnesses", does not amount to a retraction of his confession.

The appeals are dismissed.