Osigai v Reginam (Criminal Appeal No. 243 of 1956) [1950] EACA 586 (1 January 1950)

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

Before SIR RONALD SINCLAIR (Acting President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

# OCHAU s/o OSIGAI, Appellant (Original Accused) $\mathbf{v}$

## REGINAM, Respondent

### Criminal Appeal No. 243 of 1956

(Appeal from the decision of H. M. High Court of Uganda, Bennett, J.)

Statement to police—Admissibility—Statement to officer above rank of corporal through interpreter-Interpreter only police constable-Uganda Evidence Ordinance, section 24-Uganda Evidence (Amendment) Ordinance, 1955, section 2-Uganda Evidence (Statements to Police Officers) (No. 2) Rules, $rule 4.$

The appellant had made a statement to a sub-inspector but through a police constable interpreter. This was recorded by the interpreter who translated it into Swahili to the sub-inspector who recorded it in that language and subsequently in English. The Swahili and English translations only were put in evidence. The sub-inspector's deposition at the preliminary inquiry revealed that he had questioned the accused in custody until he finally made a confession. He was then charged and cautioned and his statement recorded.

Held $(2-11-56)$ .—(1) The original statement made by the accused in his own language should be produced at the trial as well as an English translation.

(2) A statement made through an interpreter to a senior officer is made to him and through, not to, the interpreter.

(3) Had the truth of the circumstances surrounding the taking of the statement been revealed to the trial Court it would no doubt have been ruled inadmissible and without it it was doubtful if the appellant would have been convicted.

Appeal allowed.

No cases.

Appellant in person.

### Dickie for respondent.

JUDGMENT (prepared by Bacon, J. A.).—This was an appeal from a conviction for the murder of the appellant's uncle recorded in the High Court of Uganda. We allowed the appeal, set aside the conviction and sentence and ordered that the appellant be set at liberty forthwith. We now give our reasons for so doing.

On 7th June, 1956, the appellant was brought to Kumi Police Station in the custody of P. C. Benjamin Akoli (P. W.8) and was handed over to the police at that place. On 9th June, 1956, Sub-Inspector Ezra Majalya (P. W.9) charged the appellant with the murder of the deceased and cautioned him. On that occasion the appellant made a statement orally in Ateso, his mother tongue, in the presence of the sub-inspector. There was no police officer at Kumi Police Station of the rank of corporal or of a higher rank who was literate in Ateso. Accordingly P. C. Okoropot (P. W.10) acted as Ateso-Swahili interpreter. When the appellant made his statement it was recorded by Okoropot in Ateso. Okoropot then orally translated the statement into Swahili and Sub-Inspector Majalya recorded it in that language (exhibit A2) and subsequently made a written translation of it in English (exhibit A3). Okoropot read back the statement to the appellant who, according to the sub-inspector and Okoropot, agreed that it was correct and thumb-marked both the original Ateso version and exhibit A2. Okoropot testified that he had read the statement back to the appellant in Ateso.

Although the original recording in Ateso was described by Okoropot in his evidence as exhibit A1, it was not in fact put in as an exhibit. What were tendered (by Sub-Inspector Majalya) were the Swahili and English translations. Counsel for the defence objected to the admission of the Swahili translation (and inferentially to the English translation made from it) on the ground that it offended against the Evidence (Statements to Police Officers) (No. 2) Rules, 1955, and was accordingly inadmissible under section 24 of the Evidence Ordinance (Cap. 9) as amended by section 2 of the Evidence (Amendment) Ordinance, 1955. He also took the point that, had the recording in Ateso been tendered, it would have been inadmissible by virtue of section 24 as being a confession made to a police officer below the rank of corporal.

When the issue of admissibility was tried, the story of the making of the statement as we have set it down constituted the sum total of the relevant facts as disclosed and established in the Court of first instance. We include in that story the fact, as disclosed by Mr. Kelshiker for the defence in the course of his submissions to the learned trial Judge, that the statement in question amounted to a confession of the offence as charged.

Mr. Kelshiker relied only on the technical objections which we have mentioned. He did not, therefore, put the appellant in the box or elicit an unsworn statement from him on the trial of the issue. When eventually the appellant spoke on the merits he said this:-

"Okoropot did not translate my statement properly to the sub-inspector. He asked me to thumb-mark the statement and then read it back to me in Swahili: I don't understand Swahili. When the statement was read back I denied that it was correct. At the preliminary inquiry the interpreter asked me if I had made a statement to the police and I said 'No'. When the magistrate closed the case he said 'You can say your words before the High Court'."

The controversy as to the acknowledgment of his confession by the accused which thus came to light at that late stage was not, of course, divulged to the learned trial Judge at the trial of the issue of admissibility. This was most unfortunate, for the appellant was in effect contending that exhibit A2 and exhibit A3 did not in fact represent a confession which could properly be attributed to him at all, but only alleged translations of a recording of something which he was supposed to have said but which, being ignorant of Swahili, he had no means of checking. That was another issue which ought to have been tried at the appropriate time. The learned trial Judge disposed of it in his judgment by observing that the appellant's contention had not been put to the sub-inspector or to the interpreter when in the witness-box. That is true, but it is impossible for us to know the real reason for the omission.

However, excluding consideration of that aspect of the trial of the issue, with respect we think that the issue was wrongly decided. In our view the effect of rule 4 of the Evidence (Statements to Police Officers) (No. 2) Rules, 1955, is that, where a police officer literate in the language of the person whose statement is to be taken is available, as was P. C. Okoropot in the instant case, the statement recorded by him in that language is the statement which should $\mathsf{be}$

produced at the trial as the utterance of the person concerned. There must, of course, also be an English translation, duly proved by the translator; but neither that nor any other translation should be treated as a substitute for the original version. We think that that is the true construction of the rule; but, even if that implication is not to be drawn from it as a matter of law, we think that is the safe and sound rule of practice which should prevail by virtue of the terms in which the enactment is expressed.

The other point taken by Mr. Kelshiker is academic, since the original recording in Ateso was never produced. We may, however, add that in our opinion it ought not in any event to succeed in a case such as this where, although the interpreter was below the rank of corporal, the police officer conducting the interview was not. A confession made in such circumstances is in reality made to the senior officer and through, not to, the interpreter.

Above and beyond all that, however, there came to light at the hearing of the appeal a much more cogent reason for excluding from the evidence the alleged confession. Mr. Dickie, for the Crown-respondent, very properly drew our attention to a passage in the record of Sub-Inspector Majalya's deposition at the preliminary inquiry, where incidentally the appellant was not legally represented. The material parts of that deposition are as follows:-

"I am in charge of Kumi Police Station. In 1st June I visited the scene at Komuge village where the deceased had been killed... Zakaliya Achotum informed that he had seen the accused 1 (appellant) there the day prior to the death of the deceased. I also learnt of quarrels that had been taking place between the accused 1 and the deceased. Wife of the deceased, accused 2, was very reluctant to give information. I strongly suspected her and also suspected the accused 1 and I gave instructions to local chiefs to arrest the accused 1 to be sent for questioning.... On 7th June accused 1 was brought to the station by A. L. G. Police, I questioned him on the deceased. At first he was very reluctant but finally broke and made a confession. I immediately charged and cautioned him and his confession was recorded. It was recorded in the usual manner." ·

That passage seems to us to disclose irregularities—and worse—which were highly prejudicial to the appellant and resulted in a most unsatisfactory trial. Sub-Inspector Majalya there stated that the sequence of events was that he began his investigations at the scene of the death, that he suspected the appellant, that he ordered the appellant's arrest for questioning, that he questioned him and that at first the appellant was very reluctant to speak. Pausing there, we observe that it must be very much open to question whether the sub-inspector had not by that time made up his mind to charge the appellant with murder. At all events, he proceeded with his interrogation and, according to him, the appellant "finally broke and made a confession", whereupon the sub-inspector then charged and cautioned him and then the confession, which the appellant is alleged to have made before the caution, was recorded. We contrast that account with the account given by the sub-inspector in evidence at the trial: -

"On 7th June, 1956, accused was brought to Kumi Police Station. On 9th June, 1956, I charged him with the murder of Ecuka and cautioned him. ... Accused elected to make a statement which was translated into Swahili."

In our view that fundamentally different version of the vital interview amounted to a misleading suppression of the truth as known to the witness, or at least to a remarkable lapse of memory on his part which concealed what in truth had happened. The sub-inspector was never cross-examined. Presumably the defending advocate failed to appreciate the vital need to question him at the trial. It now appears that the alleged confession was elicited under severe pressure before caution and, after the caution had been administered as a matter of form, was then recorded and given the entirely false description and appearance of a voluntary statement. Had the truth been disclosed to the trial court the statement would no doubt have been ruled inadmissible.

We feel obliged to add that Crown counsel (not the same counsel as appeared before us), on whom lay the onus of proving affirmatively the voluntary nature of the confession, should himself have brought this matter to the notice of the Court. It may well be that he did bring it to the notice of defending counsel, but we think that he should have brought it out in examination-in-chief as it is the duty of prosecuting counsel to put before the Court all the material facts which are within his knowledge.

It only remains to add that it is clearly open to question whether the learned trial Judge would have convicted without the alleged confession. We thought that it was plainly unsafe to uphold the conviction.