[1949] EACA 42

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## SHELANI s/o SONGORO, Appellant (Original Accused)

REX. Respondent (Original Prosecutor) Criminal Appeal No. 172 of 1949

(Appeal from decision of H. M. High Court of Tanganyika—Knight, J.)

Murder—Statement to Magistrate—Interpreter not called at preliminary inquiry or trial—Statement excluded by trial Judge--Statement examined by Court

of Appeal for Eastern Africa in interests of justice—New trial ordered.

The appellant made a statement to a Magistrate before preliminary inquiry. The interpreter was not called at the inquiry and as he was on leave the trial Judge rejected the statement.

*Held* (11-10-49).—(1) The interpreter should have been called at the preliminary inquiry or called as an additional witness at the trial.

(2) The Court of Appeal could look at the statement in the interests of justice.

(3) As the statement disclosed a possibility of the trial court entering a verdict of manslaughter the conviction was set aside and new trial ordered.

## Appellant absent, unrepresented.

Munir. Crown Counsel (Tanganyika), for the Respondent.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant convicted in the High Court of Tanganyika of the murder of<br>Tunda. The facts of the case and the gist of the evidence $was$ Juma are very clearly and fairly set out in the judgment of the learned trial Judge. There were two eye-witnesses to a quarrel between the appellant and the deceased in the house of the deceased. Unfortunately at the height of the quarrel and before any physical damage was done the two eye-witnesses ran away in fear. The position then was that the appellant had become very angry with the deceased apparently because the appellant's wife had asked the deceased for some of the meat which the deceased was cooking. The appellant had slapped his wife's face and thrown the meat on the floor. The appellant and deceased were then left alone together in the deceased's house. Not long after this a headman met the deceased some thirty yards from the house where the quarrel happened. The deceased had a stab wound in his lower abdomen which he said had been inflicted by the appellant. The deceased died from that wound the same night.

On that evidence the learned trial Judge found the appellant guilty of murder though the two assessors expressed the opinion that the appellant's guilt had not been proved beyond doubt. In our views, on the evidence before him, the learned trial Judge rightly convicted. The conviction depended of course on circumstantial evidence supporting the deceased's own statement and we know that native assessors very often fail to appreciate the weight which may properly be given to circumstantial evidence.

The only question of importance in the appeal concerns a statement made to a Magistrate by the appellant through an interpreter before the preliminary inquiry started. The evidence of the interpreter was not taken at the preliminary inquiry and he was on leave and not available at the trial. The learned Judge rightly rejected that statement but we were uneasy about its rejection. We agree with the learned Judge that the committing Magistrate and the police were blameworthy in respect of the failure to call the interpreter at the preliminary inquiry. We go further and say that when the time came for an information to be filed the law officers should have had the case sent back for the evidence of the interpreter or given notice and made arrangements to call him as an additional witness at the trial.

The appellant who was represented by an advocate at the trial elected, after consultation with his advocate, to say nothing and to call no witness in his. defence.

In these circumstances we have thought it in the interests of justice to examine the statement in question only to ascertain if its admission would have assisted the appellant. We find ourselves in difficulty about this. The appellant's case at the trial, as put forward by his advocate, was that there was no case to answer, and that the appellant should be acquitted. The excluded statement of the appellant would not have supported that case for it was a definite admission by the appellant that he stabbed the deceased in the stomach. The statement, however, set out circumstances of importance, namely, that the appellant had found his wife in the deceased's house alone with the deceased who was only partially dressed and sitting on his bed; that the appellant struck his wife on the side of the head, that the deceased then took a stick to hit the appellant; that the two of them struggled and in the course of the struggle the appellant threw the deceased down and stabbed him in the stomach. We think that if that statement had been before the Court below it is possible that there might have been a verdict of manslaughter. But it is clear that a deliberate election was made by the appellant with legal advice to gamble on getting a complete acquittal rather than to try to get a verdict of manslaughter only and the fact: remains that the conviction for murder was justified by the evidence before the Court below and we are unable, sitting as a Court of Appeal, to say as a matter of law and evidence that the Court below was wrong to convict.

It appears to us that the only course open to us in the interests of justice is to set aside the conviction and order a re-trial before a different Judge with a special direction that steps are to be taken at the new trial to prove the statement. made by the appellant to the Magistrate by calling the interpreter.

The appellant is remanded in custody.