Omiyot and Another v Reginam (Criminal Appeals Nos. 192 and 193 of 1955) [1955] EACA 355 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Sir Owen Corrie, J. (Kenya)

## (1) OBURANI s/o OMIYOT, (2) FAKI s/o OPOLOT, Appellants (Original Accused)

## $v$ . REGINAM, Respondent

Criminal Appeals Nos. 192 and 193 of 1955

(Appeals from the decision of H. M. High Court of Uganda, Jones, Ag. J.) Judges' Rules, rule 8—Application in East African territories.

Rule 8 of the Judges' Rules provides: "When two or more persons are charged with the same offence and statements are taken separately from the persons charged, the police should not read these statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered."

In the instant case the statement made by each appellant when charged was read over by a police officer to the other. Neither of the appellants could read and the police officer made it clear to each that he need not make any statement in reply, and after both expressed a wish to make a statement he again administered the usual caution.

Held (3-8-55).—Under the circumstances obtaining in the East African territories, where a large proportion of accused persons are illiterate, some modification of rule 8 aforesaid<br>must be allowed. In the instant case the procedure adopted by the police officer was entirely proper and in keeping with the spirit of the rule.

Appeals dismissed.

Appellants absent, unrepresented.

## Dickie for respondent.

$\overline{ }$

. 1

JUDGMENT (delivered by Nihill (President)).—These two appellants, whose appeals we have consolidated, were charged jointly and convicted of the murder of a woman, by the High Court of Uganda. The prosecution case rested to a large extent on statements made by the second appellant and the evidence given by him at the trial. In his memorandum of appeal the first appellant complains that the learned Judge has accepted the evidence of the second appellant which clearly implicated the first appellant in the crime without sufficient corroboration in material particulars. This is not so, however, for in his judgment the Judge directed his mind to the point and correctly, in our view, came to the conclusion that the evidence of the first appellant's wife coupled with the evidence of two other witnesses who were at the beer party which preceded the incident, provided strong circumstantial corroborative evidence of the story told by the second appellant. The first appellant was seen to leave the beer party together with the deceased woman, and later that night he told his wife that she must not tell anyone that he was the one who had killed the deceased. There is no other point in his memorandum of appeal of any merit.

We note that when he was first charged by the police he said that he was very drunk and did not know what he was doing, but he knew that something went wrong with his head, and that he did not know why and what he did. Intoxication and its effects, however, was clearly abandoned at the trial and the point is again not made by this appellant in his memorandum of appeal. It is, nordoubt, for this reason that the spoint was not considered by the Judge in his judgment.

As regards the second appellant, his defence at the trial was that throughout the transaction, which resulted in the death of the deceased he was acting under compulsion from the first appellant, and he maintained this in his memorandum of appeal. It is quite clear, however, from his own account of what took place, and how it took place, that however much he may have been under the malign influence of the first appellant, he was not in such instant fear of death or grievous bodily harm at the hands of the first appellant as to provide him with a defence under section 16 of the Uganda-Penal Code. As the learned Judge has pointed out, he could easily have raised an alarm or run away when the intentions of the first appellant towards, the woman became apparent.

Before dismissing these appeals there is one observation we wish to make. During the course of the trial the Crown counsel very properly pointed out to the trial Judge that there had been a departure from the strict wording of rule 8. of the Judges' Rules in that statements made by each appellant when charged. had been read over by a police officer to the other. Rule 8 of the Judges' Rules. expressly forbids the police to read the statement of one accused to other persons charged, but provides that each of such persons should be furnished by the police with a copy of such statements and that nothing should be said or done to invite a reply. Under the circumstances obtaining in these territories, where a large proportion of accused persons are illiterate, it seems clear to us that some modification of this rule must be allowed, and we think that the procedure adopted in the present case by the Superintendent of Police, who gave evidence, was entirely a proper one and not out of keeping with the spirit of the rule. He read the statements over to the appellants because they could not read themselves. but he made it quite clear to them that they need not make any statement in reply, and after they had both expressed a wish to make a statement he again administered the usual caution.

These appeals are dismissed.