Msakazi v Rex (Criminal Appeal No. 259 of 1950.) [1951] EACA 150 (1 January 1951)

### 150

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR GRAHAM PAUL, C. J. (Tanganyika), and LOCKHART-SMITH, J. of A. $\overline{ }$

### MANGWERA s/o MSAKAZI, Appellant (Original Accused)

$\mathbf{v}$

## REX, Respondent (Original Prosecutor)

Criminal Appeal No. 259 of 1950.

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

Murder—Plea of guilty—Whether acceptable.

$\sim$ The appellant was convicted of murder on his own plea, his actual words were: "Yes, I killed her. She refused to have sexual intercourse with me when I wanted her to. So I hit her twice with a stick whereupon she fell down and died. I remember the statement I made to the Magistrate at Manyoni. (The relevant part is read over to accused G. M. M.) What I said is correct and I do not want to vary it at all. I realize that what I am now saying amounts to an admission that I murdered Chemela".

Held (1-2-51).-In the circumstances it was not improper for the Judge to accept what was said by appellant as constituting an unequivocal plea of guilty to murder. There is no statutory provision invalidating a conviction on a capital charge on an accused person's own plea where it does amount to an unequivocal admission of guilt.

But the Court considered it generally inadvisable particularly where the accused did not speak English for the trial Judge to accept a plea of guilty on a capital charge.

Appeal dismissed.

$\mathcal{L} \subset \mathcal{L}$

$\cdot \cdot$

Accused absent, unrepresented.

### Summerfield, Crown Counsel (Tanganyika), for Crown.

JUDGMENT.—The appellant was convicted of murder on his own plea in the High Court of Tanganyika. He now submits in his memorandum of appeal that the learned trial Judge erred in taking what he said in answer to the information as constituting a plea of guilty to the offence of murder. The actual words used by the appellant as recorded by the learned Judge were as follows: -

"Yes, I killed her. She refused to have sexual intercourse with me when I wanted her to. So I hit her twice with a stick whereupon she fell down and died. I remember the statement I made to the Magistrate at Manyoni. (The relevant part is read over to accused G. M. M.) What I said is correct and I do not want to vary it at all. I realize that what I am now saying amounts to an admission that I murdered Chemela."

The statement referred to by the appellant was an extra judicial statement made before a Magistrate which amounted to a full confession that he had caused the death of his concubine by hitting her twice with a stick because she had refused to allow him sexual intercourse. According to the medical deposition the deceased woman's skull was fractured by a blow on the head. There was also a rupture of the spleen, which was found to be enlarged, caused by a body blow.

Under these circumstances we cannot hold that it was improper for the Judge to accept what was said by the appellant as constituting an unequivocal plea of guilty to murder, since we think it must be inferred that the appellant admitted that he had at least the intention to do grievous bodily harm to the deceased and the refusal of sexual intercourse by a concubine could not of course under any circumstances afford the appellant any defence on the ground of provocation. Furthermore, after sentence of death had been passed on him, the appellant was in fact given a chance to withdraw his plea, because the learned Judge noticed that he had not received the statutory three days notice of his trial. The appellant again replied that he had nothing to say, that the woman he had killed was only his lover and that he realized that he had done wrong. The appellant was represented by Counsel who made no submission.

As there is no statutory provision invalidating a conviction on a capital charge on an accused person's own plea where it does amount to an unequivocal admission of guilt there is no merit in the point taken by the appellant and his appeal must be dismissed.

Nevertheless we take this opportunity of emphasizing that in our opinion in these territories it is generally inadvisable for a trial Judge, particularly in the case of a person who does not speak or understand English, to accept what he says when arraigned on a capital charge as a plea of guilty. It is far better, even although the words of the plea may clearly indicate that the person accused has no defence, that the Court should hear the evidence before convicting. Even in the present case we consider that it would have been better had the learned Judge entered a plea of not guilty, but since he committed no error in law in not so doing, the conviction must stand. Furthermore, in view of the circumstances of this case which we have outlined it is manifest that nothing could be gained by a retrial.