Mkwayi v Reginam (Criminal Appeal No. 251 of 1956) [1950] EACA 612 (1 January 1950)

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

Before SIR RONALD SINCLAIR (Acting President), BACON, Justice of Appeal, and CRAWSHAW, J. (Tanganyika)

## DALA D/O MKWAYI, Appellant (Original Accused)

# **REGINAM, Respondent**

# Criminal Appeal No. 251 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Abernethy, J.) Admissibility—Dying declaration—Statement by accused in custody—Crossexamination on inadmissible statement—Indian Evidence Act, section 25.

The appellant was convicted of murder and a declaration made by the deceased in answer to questions put to her by a police officer was accepted as true by the trial Judge without giving any reasons although from the evidence it was at least doubtful whether the deceased knew sufficient Swahili to understand the questions and the Judge did not warn himself of the danger of acting on the declaration without any corroboration and there was no evidence that the deceased was then in immediate expectation of death. The appellant made a statement to a police officer while she was in custody and although this was ruled inadmissible as not having been taken in accordance with the Judge's Rules, when the appellant gave evidence she was permitted to be cross-examined on it.

Held (6-12-56).—It was dangerous to place the reliance upon the declaration which the trial<br>Judge did but the cross-examination of the appellant on her inadmissible statement was highly prejudicial to her because certain parts of the statement were thereby put in evidence, and this alone was fatal to the conviction.

Appea! allowed.

Cases referred to: Mgundulwa v. R., 13 E. A. C. A. 169; R. v. Treacey, (1944) 2 A. E. R. 229; Kinyori s/o Karuditu v. R., E. A. C. A. Cr. App. No. 551 of 1955 (supra p. 480).

Appellant absent, unrepresented.

### Samuels for respondent.

JUDGMENT (prepared by Sinclair, Acting President).—The appellant was convicted by the High Court of Tanganyika of the murder of her co-wife, Ntundu d/o Mpanda. We allowed the appeal, setting aside the conviction and sentence, and now give our reasons for so doing.

The deceased was married to Ulungu s/o Sejegwa, who had three other wives, the appellant, Msembego and Gaile. On 16th April, 1956, she received two penetrating wounds in the abdomen. She was taken to Dodoma Hospital where she died at about 2 a.m. the following morning from her injuries. According to the medical evidence the wounds could have been caused by a spear.

The only admissible evidence connecting the appellant with the killing consisted of the testimony of her co-wife, Msembego, and a dying declaration made by the deceased. Msembego showed herself to be so unreliable a witness that the learned trial Judge rightly disregarded her evidence. The dying declaration was made at about 8.30 p.m. on 16th April at Dodoma Hospital, and was recorded by Constable Patrick. It is a lengthy statement and in it the deceased is recorded as having said that the appellant poured urine on her face and then stabbed her with a spear in the stomach, the motive being jealousy. At the trial the appellant gave evidence denying that she killed the deceased. She said that after a quarrel with her husband, he threatened to beat her. She ran away and being afraid to return home went to the sub-headman of the village, Antoni, and asked him to

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take her to the headman, Mbisi. Antoni took her to Mbisi who in turn brought her to the police at Dodoma. The learned Judge accepted the dying declaration of the deceased as true and disbelieved the evidence of the appellant.

In our view it was dangerous to place the reliance on the dying declaration which the learned Judge did. In the first place, it appears from the evidence at least doubtful whether the deceased had sufficient knowledge of Swahili (in which language Constable Patrick said both he and the deceased spoke) fully to understand the questions put to her by Constable Patrick and to make her meaning clear. The deceased's father and husband both said that she knew no Swahili at all, while her husband said she spoke to Constable Patrick in Kigogo. The learned Judge accepted the evidence of Constable Patrick that the deceased understood and spoke simple Swahili, but he does not appear to have considered the possibility which seems to us a real one, that the deceased, whose statement was made in answer to questions put to her by Constable Patrick and who was admittedly suffering great pain at the time, may not fully have understood the import of the questions. In the second place, the learned Judge gave no reasons why he accepted the dying declaration as true and he did not warn himself as to the danger of acting on the declaration without corroboration, for there was, in fact, no corroboration of its truth. In R. v. Mgundulwa s/o Jalu and another, 13 E. A. C. A. 169; this Court said: $-$

"As this Court has had to point out upon more than one occasion, evidence as to dying declarations has to be received with some measure of caution and it is generally speaking very unsafe to act upon such declarations unless they receive satisfactory corroboration."

And in *Sarkar on Evidence*, 9th ed., p. 311, the following comment is made:—

"The evidentiary value of a dying declaration varies very much in accordance with the circumstances in which it was made and generally speaking a declaration not made in immediate expectation of death and not made in the presence of the accused should not be acted upon without reliable corroboration.'

Here the statement was not made in the presence of the appellant and there was no evidence that the deceased was at the time in immediate expectation of death. It is also a matter for comment that the deceased told no one how she obtained her injuries until she was questioned by Constable Patrick at the hospital. In his judgment the learned Judge said: -

"Ntundu's father, Mpanda (4 P. W.), in his evidence, said that what his daughter told him happened was the same as she told Constable Patrick."

If by that passage he meant that the deceased told Constable Patrick what she had previously told her father, it is not borne out by the evidence of Mpanda.

But there was another aspect of the trial which alone was fatal to the conviction. Before any evidence was called, argument was heard in the absence of the assessors as to the admissibility of a statement alleged to have been made by the appellant to Sub-Inspector Njowoka while she was in custody. It was submitted by counsel for the defence that the statement was inadmissible as being a confession within the meaning of section 25 of the Indian Evidence Act; The trial Judge held that the statement was exculpatory and was, accordingly, not excluded by section 25. That ruling was clearly correct for the statement amounted to no more than an admission by the appellant that she killed the deceased in self-defence. However, when Sub-Inspector Njowoka was called by the prosecution to prove the statement, counsel for the appellant intimated that he intended to challenge the admissibility of the statement on other grounds. He then proceeded to cross-examine the witness as to the circumstances in which

the statement was made and to put certain portions of the statement to him, this time in the presence of the assessors. That is a matter which we shall refer to later. At the conclusion of the cross-examination of this witness the trial Judge refused to admit the statement in evidence on the ground that it was not taken in accordance with the Judges' Rules. But, when the appellant gave evidence, counsel for the Crown was permitted to cross-examine her on the contents of the statement after an objection by counsel for the appellant had been overruled. That cross-examination was improper and highly prejudicial to the appellant. That it was improper is clear from the decision of the Court of Criminal Appeal in R. v. Treacey, (1944) 2 A. E. R. 229. In that case the accused was cross-examined on a statement which was made to a police officer while he was under arrest but which was not put in evidence as part of the case for the prosecution. Humphreys, J., delivering the judgment for the Court, said:-

"That document was thought by the prosecution to be of use from their point of view, and they tendered it in evidence at the police court. The magistrates, as we think, well-advised, came to the conclusion that, seeing that the man was at the time when that cross-examination was administered to him in custody on a charge of murder, they ought not to admit that statement, and they refused to allow it to go in. The prosecution apparently accepted that position, and nothing more was heard of that statement until after the case for the prosecution was closed. No attempt was made to get Wrottesley, J., to admit that statement and no one heard anything about the statement until this man was in the witness-box. Then he was cross-examined by counsel for the Crown upon those answers, and those answers were contrasted with the answers that he had been giving on that day in the witnessbox in the hearing of the jury.

I say with regard to that statement, as I said with regard to the two previous documents: either it was admissible in evidence or it was not. Counsel for the Crown did not think that he could have put in that statement against the appellant in the circumstances, seeing that the charge was one of murder. The statement, therefore, must be taken to be one that is inadmissible. But counsel for the Crown took the view:

When this man had made some statement in the witness-box as to movements on that morning which in my view did not agree with the statements which he had made in those inadmissible written answers to questions, I was entitled to put those to him.

. We entirely disagree. In our view, statement made by a prisoner under arrest is either admissible or it is not admissible. If it is admissible, the proper course for the prosecution is to prove it, give it in evidence, let the statement if it is in writing be made an exhibit, so that everybody knows what it is and everybody can inquire into it and do what they think right about it. If it is not admissible, nothing more ought to be heard of it, and it is quite a mistake to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination. It is quite a mistake, and in our view that is another instance, an unfortunate instance, of what happened in this case without, as I have said, and I repeat it because I mean it, the slightest desire on the part of anybody to be otherwise than fair to the man who was on his trial."

The cross-examination was highly prejudicial to the appellant because certain incriminating parts of this inadmissible document were thereby put in evidence. In particular the appellant admitted that she had said in the statement that she stabbed the deceased. That admission was referred to by the learned Judge in

his judgment and it is impossible to say that it did not influence him in disbelieving the appellant's testimony and in accepting the dying declaration of the deceased as true. It would probably have been less damaging to the appellant if the whole statement had been admitted in evidence.

There is a further matter on which we feel it necessary to comment. After reviewing the evidence the learned Judge said: -

"So we have the facts that in a dying declaration the deceasd Ntundu said she was deliberately stabbed by the accused, and that after the stabbing the accused left her home and went to a headman and, told him something which caused him to take the accused to the police."

In the absence of any evidence as to what the appellant told the headman, we do not think that any inference adverse to the appellant could justifiably be drawn merely from the fact that the headman took her to the police.

We have referred to the fact that the assessors were permitted to remain in Court while evidence was being heard as to the admissibility of the appellant's statement to the police. That was contrary to the practice which this Court said should be followed in Criminal Appeal No. 551 of 1955, Kinyori s/o Karuditu $v$ . Reg. (unreported). In that judgment we set out the whole of the procedure which should be followed whenever there is an issue as to the admissibility of an extra-judicial statement. We quote the passage from that judgment which particularly applies in the instant case:-

"For the avoidance of doubt we now summarize the proper procedure at a trial with assessors when the defence desires to dispute the admissibility of any extra-judicial statement, or part thereof, made by the accused either in writing or orally. This same procedure applies equally, of course, to a trial with a jury. If the defence is aware before the commencement of the trial that such an issue will arise the prosecution should then be informed of that fact. The latter will therefore refrain from referring in the presence of the assessors to the statement concerned, or even to the allegation that any such statement was made unless and until it has been ruled admissible. When the stage is reached at which the issue must be tried the defence should mention to the Court that a point of law arises and submit that the assessors be asked to retire. It is important that should be done before any witness is allowed to testify in any respect which might suggest to the assessors that the accused had made the extra-judicial statement. For example, an interpreter who acted as such at the alleged making of the statement should not enter the witness-box until after the assessors have retired. The assessors having left the Court, the Crown upon whom the burden rests of proving the statement to be admissible, will call its witnesses, followed by any evidence or statement from the dock which the defence elects to tender or make. The Judge having then delivered his ruling, the assessors will return."

It is true that when certain portions of the statement were being put to Sub-Inspector Njowoka in cross-examination, the learned Judge directed that that evidence should not be interpreted to the assessors; but there could be no certainty that neither of the assessors understood sufficient English to follow what was said, and it was improper to allow them to remain in Court.