Apaliya and Others v Reginam (Criminal Appeal No. 38 of 1956) [1950] EACA 496 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President) and BACON, Justice of Appeal

## (1) ALINGA s/o APALIYA, (2) APALIYA s/o ILOKOL, (3) LONGOK s/o LOMONGO, Appellants (Original Accused)

## **REGINAM, Respondent**

## Criminal Appeal No. 38 of 1956

(Appeals from the decision of H. M. High Court of Uganda, Sheridan, J.) Statement by accused when charged with murder of X—Whether admissible when accused subsequently charged with murder of $Y$ .

The three appelants were originally charged with the murder of X, one of three persons killed during a cattle-raid. Owing to lack of evidence of identity the charges were withdrawn. Subsequently, they were charged with murdering all the deceased persons and separate indictments were preferred against the appellants jointly, one indictment in respect of each murder. The Crown elected to proceed first on the indictment in respect of deceased Y.

Held $(12-4-56)$ .—A statement made by an accused when charged with the murder of X was admissible on the hearing of the charge in respect of the murder of Y as it was relevant in that it bore on the question of whether or not he was guilty of the murder of Y.

Appeals dismissed.

Case referred to: R. v. Evans, 34 Cr. App. R. 72.

Appellants in person.

Dickie for respondent.

JUDGMENT (prepared by Bacon, J. A.).—This was an appeal by three Karamojong against convictions for murder recorded by the High Court of Uganda. The case for the Crown was that each of the appellants participated in a cattle-raid organized on a large scale against the Suk, in the course of which three Suk were killed by the raiders, the death of one of the deceased being the subject-matter of the prosecution in the instant case. We allowed the appeal as regards the first appellant but affirmed the convictions of the second and third. We now give our reasons for so doing.

It was established that a large body of Karamojong armed with spears and shields appeared in the vicinity of Akokoro village early one morning in April, 1955, and drove off some hundreds of cattle belonging to inhabitants of that village. The Suk owners of the cattle, ten or eleven in number, banded together and followed the Karamojong and the cattle for a distance of 18 miles until, at about 4 o'clock in the afternoon, the Suk were caught in an ambush and their enemies suddenly fell upon them in large numbers. One Suk witness put the number of Karamojong as high as 700; however that may be, it clearly appears that a large number were engaged on the raid. Each Suk carried a spear and together they put up a fight against the raiders. In the course of the fight three Suk, of whom the deceased was one, were killed and the survivors, some of them wounded, were put to flight. Clearly the raiders had the common intention to steal cattle and to kill, disable or repel anyone who interfered. On

the following day some of the Suk concerned took an Inspector of Police, Inspector Gordon, to the scene and pointed out the three bodies of their fellowtribesmen. No arrests were made at that time.

Within a few days Inspector Gordon took statements from the Suk concerned. The inspector was on leave at the time of the trial and his deposition, recorded on 8th August, 1955, was put in as evidence without objection. In his deposition the inspector stated that "the identifying witnesses had originally told me... shortly after the event that they did not think they would be able to identify any one of the raiders". The only substantial issue on appeal was the question of identification and in view of that statement by the Inspector it became necessary carefully to examine the evidence inculpating each appellant.

During the latter part of April, 1955, each of the appellants was arrested by the native authority and produced before the Magistrate's Court. Each was suffering from a wound or wounds and consequently the police sent them all to Moroto Hospital to be examined. The D. M. O. Karamoja found the first appellant to be suffering from a recent incised wound which had penetrated the left cheek, the second appellant to have two septic wounds on his back and the third appellant to have a stab incised wound on the right wrist and an incised wound on the inner border of the left forearm.

Three days before his medical examination the second appellant had been charged by Inspector Gordon with the murder of Ayereyang, one of the three Suk killed during the cattle-raid. In his deposition the inspector stated on being charged the second appellant had made a cautioned statement. The statement read as follows: "It is true that we fought. When the Suk arrived one of them speared me. I ran off into the bush. I do not know if any person was killed. It is true we stole the cattle".

Owing to their wounds the appellants were detained in hospital for over a week, or, according to their evidence, for substantially longer. They were permitted to move about under the supervision of their warder, and were taken out of their ward in the daytime. There were Suk in other wards.

The first and third appellants were also charged with murder in connexion with the cattle-raid at about that time; the date is not recorded and there is no evidence that either of them made a statement at that stage.

On 27th May the charge of murder was withdrawn in all three cases, it being then thought that there was no evidence warranting any further step.

Within a few days the appellants were tried before the Native Court for theft of cattle. In cross-examination the Chief who tried them said that he sentenced them. In their evidence-in-chief the first and second appellants said that they had received (inter alia) sentences of imprisonment in the Native Court, and the first appellant added that the second and third appellants had also been so sentenced. It was doubtless as a result of those sentences that the appellants found themselves in Moroto Prison on 4th June.

On that day an identification parade was held at the prison under the supervision of Inspector Gordon. No interpreter or, other person who assisted the inspector on that occasion testified at the trial before the High Court. This, we think, was an unfortunate omission, especially as the inspector was himself unable to give evidence owing to his absence on leave. So far as the evidence goes—that is to say, according to the inspector's deposition—the parade was conducted with perfect propriety. At the parade four Suk witnesses purported to identify the appellants as follows: P. W. 2 identified the first appellant; P. W. 3 identified the third appellant; P. W. 4 identified all the appellants; and P. W. 5 identified the first and second appellants. We shall presently revert to the question of the value to be given to what happened on that occasion.

On 4th July the first and third appellants were separately charged with the murder of Ayereyang. The first appellant made a cautioned statement as follows: "I understand the charge and caution, but I did not go to the place where people fought. I have nothing to state more". The third appellant made a much longer statement, also after caution. The gist of it was that on the day of the raid he had been going about his lawful business in the countryside when he heard a great noise and, on approaching, was attacked and wounded twice, whereupon he escaped in the dusk and ran until he reached home.

On 2nd September the preliminary inquiry was opened, by which time the charge against the appellants had been enlarged to one of murdering the three Suk who lost their lives during the raid, namely Ayereyang, Changuri and Poman. Three separate indictments were subsequently preferred, each against the appellants jointly, one indictment in respect of each alleged murder. The Crown elected to proceed first on the indictment in respect of the death of Changuri.

We must now examine the evidence of the four identifying witnesses and the relevant circumstances antecedent to their appearance in the witness-box.

P. W. 2 testified that he had seen the first appellant emerge from the crowd of raiders and throw a spear at the deceased Changuri. In cross-examination he agreed that the raiders had been wearing their head-dress, and that in his statement to the police three days after the raid he had said that he could not recognize any of the Karamojong as they were many. He denied that he had ever been to Moroto hospital or had ever seen any of the appellants before the identification parade. On the other hand the first appellant testified that this witness had visited a patient in the hospital and that he (the appellant) had seen him there and knew him as Lomorutome (which is his name), and contended that the witness had identified him at the parade because of having seen him in hospital.

P. W. 3 testified that he had seen the third appellant among those who were driving the cattle, though he agreed in cross-examination that he also had told the police on the day after the raid that he could identify nobody. The third appellant, however, could suggest no reason why this witness should have identified him at the parade or in Court.

P. W. 4 said he had seen the first appellant spear Changuri and had seen the second and third appellants in the crowd which drove off the cattle and again at the fight. In cross-examination he agreed that very shortly after the raid he too had told the police that he would not be able to recognize any of the raiders. He denied that he had seen any of the appellants in hospital. The first appellant said that he had seen this witness (and incidentally P. W. 3 also) at Abadat police outpost, where they had asked him if he had returned from hospital and he had answered "Yes". The second appellant contended that an interpreter at the parade had identified him to this and other witnesses by speaking to them in a language which he (the second appellant) could not understand—a contention which is, of course, a contradiction in terms. The third appellant is not recorded as making any observation on this witness's identification of him.

Finally, P. W. 5 testified that the first appellant was the man who had speared Changuri, and that the second appellant had been with him. In crossexamination he said that he had made a statement to the police askari at Kerita in which he mentioned that if the raiders were brought to him he could recognize two of them; this, if said to the *askari*, was inconsistent with the witnesses's remark to Inspector Gordon as recorded by the latter. The witness also denied having seen these men in hospital. The first appellant said that an. interpreter at the parade, a Suk, had pointed him out to this witness. As already mentioned, the second appellant told the same story though in unintelligible form.

We will now deal with the whole case as against each appellant.

The main strength of the case against the second appellant is his selfinculpatory statement made when charged in April with the murder of Ayereyang. This was held by the learned trial Judge to be admissible on the principle laid down by the Court of Criminal Appeal in $R$ . $\nu$ . Evans, 34 Cr. App. R. 72. We think it was right so to hold. In that case there were, as here, separate indictments each alleging a single murder-in Evan's case the accused's wife and his child. The Crown proceeded on the indictment relating to the child. The accused had made two extra-judicial statements each confessing to the murder of both deceased. The Court held that those statements in their entirety had been properly admitted in evidence. The test was stated thus (at p. 77): "Was the evidence relevant, that is to say, did the statements which the appellant made with regard to the death of his wife bear on the question whether he was guilty or not guilty of the death of the child?" In the instant case the second appellant's statement, though made in relation to a charge of murdering Ayereyang, clearly bore on the question of his guilt as regards the slaying of Changuri inasmuch as it was proved that both deceased had died during the one and only raid concerned, in which the second appellant admitted (by the statement in question) that he had participated, and immediately after which the bodies of Ayereyang and Changuri (and of the third Suk who had been killed) were found on the site of the ambush. The second appellant's statement tended to prove his guilt equally as regards the death of any one of the three deceased.

The appellants were represented by an advocate at the trial but, when the witness (P. W. 9), a police constable who had acted as interpreter at the taking of the second appellant's statement by Inspector Gordon, produced and proved it, no objection was made. It was not until the second appellant gave evidence on the following day—and then only in cross-examination, when faced with his statement—that he sought to repudiate it on the ground that the police interpreter had "invented the whole story". Not only the learned trial Judge but also the assessors rejected this last-minute denial. We agree that the statement stands as strong evidence against the second appellant.

Moreover, this appellant is recorded as saying in his evidence-in-chief: "There is no one here whom I saw in the hospital". Though there must remain the possibility that he was seen there, he did not attempt to rely on it and we cannot give any weight to what must, therefore, be mere conjecture. This appellant also said in chief: "I don't know Tudo or Namerekume". Those were the two identifying witnesses (P. W. 5 and P. W. 4) in his case.

In our view the guilt of the second appellant was clearly established.

The third appellant testified to a watered-down version of the story which he had told in his extra-judicial statement. Both his testimony and his statement involved him in having been in the immediate vicinity of the ambush, but only by chance, and in having suffered his spear-wounds at the hands of unknown persons when he was no more than an innocent bystander who was caught up in the affray and who at once fled.

On the evidence as a whole, and particularly in view of the incredible explanation of his wounds which the third appellant offered, we think it clearly proved that he was guilty as a participant in the murderous attack on the Suk.

The case of the first appellant remains to be considered. In the first place a feature of this man's case which in our opinion substantially distinguishes it from that of the other appellants is that, whereas the wounds of the others were such that they would not be easily noticeable at the identification parade (being, in the case of the second appellant, on his back, and, in that of the third, on the wrist and on the inner border of the forearm), the first appellant bore a wound on his left cheek which must have been visible at a glance and was, indeed, still so visible on the hearing of the appeal. Identifying witnesses would thus have no difficulty in picking him out as allegedly a participant in the attack, and we cannot think that any appreciable weight should in those circumstances be given to their evidence of identification. The fact that all three identifying witnesses alleged that they had seen this appellant cast a spear at Changuri, in respect of whose death the Crown had elected to proceed, tends rather to diminish than to enhance the value of their evidence; for it would indeed be an extraordinary coincidence if three out of the ten or eleven Suk concerned were able, two months after the event, to identify the one Karamojong who had killed the deceased (out of hundreds who had sprung from the bush and attacked them), despite their previously professed inability to identify anyone, and despite the fact that the appearance of the first appellant had been materially altered by the absence of his head-dress and the shaving of his head.

Secondly, this appellant gave an explanation of how he came to be wounded which in our view can by no means be disregarded as improbable. He said that he had been attending to a goat with a thorn in its foot when the goat kicked against his spear and drove it into his cheek. Taking into account the custom of tribesmen of his kind to retain their spears in their hands at all times, there is nothing unlikely about that story—in marked contrast to the explanations of their wounds given by the second and third appellants.

Added to both those points there is this appellant's detailed evidence as to previous contacts with two (P. W. 2 and P. W. 4) out of the three witnesses who had purported to identify him. As regards the third such witness (P. W. 5) this appellant said he had never seen him before, but that the Suk interpreter (a fellow-prisoner at Moroto Prison) at the identification parade had there pointed him out to the witness.

We came to the conclusion that the case against the first appellant was not only substantially weaker than that against each of the others but was so unsatisfactory as to render it unsafe to convict.

As appears from what we have said, we have given little weight to any of the evidence of purported identification, and none to some of it. In all the circumstances, in our view, the other evidence to which we have referred is the only material upon which it is safe to found a conviction in the cases of the second and third appellants.

In conclusion we take this opportunity of once again emphasizing the necessity for the greatest possible care as regards both identification and interpretation in cases such as this. The Courts are entitled to expect all possible assistance in these respects. It may often be that events or words, of which the ultimate significance cannot be appreciated at the time, prove to be of the utmost importance in the end. All those concerned should spare no pains faithfully to observe and record the exact truth in the interests of justice.