Rex v Abdulla and Another (Cr. Case No. 169/34.) [1934] EACA 5 (1 January 1934)

### ORIGINAL CRIMINAL.

## Before HORNE, J.

#### REX. Prosecutor.

$\overline{2}$

# (1) JUMA BIN ABDULLA, (2) MIRIANGAI BINTI LEVERI,

## Cr. Case No. 169/34.

- Murder—Corpus delicti-Necessity for proof by direct evidence or irresistible ground of presumption—Confessions of the accused-No other evidence of death-Body not found-Whether conviction may follow on confession alone. - $Held$ (28-2-35).—That, where there is no other evidence of the corpus delicti than the confession of the accused, such confession, in the absence of evidence of confirmatory circumstances, is not sufficient to justify a conviction for murder or manslaughter.

The accused were charged with the murder of Lemunge, the husband of the second accused. It was proved that Lemunge, a man of about forty years of age, had been missing from his home, a comparatively isolated village of two huts, since some not clearly ascertained date in 1933; that the first accused, a man of over sixty with one arm ineffective, had resided with Lemunge and his wife since 1933. Two brothers of the accused had made certain enquiries and gave evidence of an inconclusive character of statements made by the accused to them. Lemunge's Registration Certificate was found in his hut. Lemunge and second accused had three children the eldest of whom was fourteen years of age approximately. None of the children were called as witnesses. No body or part of a body could be discovered and there was no evidence aliunde the confessions. The accused did not give evidence at the trial but made unsworn statements retracting their previous statements at the preliminary enquiry and the statements made to Lemunge's brothers.

Lewey for the Crown.

Christie for the first accused.

Budhdeo for the second accused.

JUDGMENT.-In homicide three propositions must be established: $(1)$ that a death has taken place; $(2)$ that the deceased is identified with the person alleged to have been killed; (3) that the death was due to unlawful violence; and it is not until those propositions have been proved that the question-not included in the corpus delicti-is the accused the culprit, arises.

The evidence of the corpus delicti is not always separable from that which attaches to the guilt of the person accused, but whatever difficulties may present themselves in practice, so many cases have occurred of convictions for alleged offences which have never existed, that it is a fundamental rule of legal procedure that no person shall be required to answer an accusation or be involved in the consequences of guilt without satisfactory proof of the corpus delicti either by direct evidence or irresistible ground of presumption. Wills 333.

In Halsbury, Vol. 9, Art. 740 reads as follows: "The prosecution must first give satisfactory proof of the corpus delicti, i.e. must prove that the offence charged has been committed by someone." Then follows note $(c)$ : "It is doubtful whether it (the corpus delicti) must be established by some evidence other than the mere confession of the accused."

Wills (p. 109) on the other hand does not regard the matter as doubtful. It is there said that a "voluntary and unsuspected confession is clearly sufficient to warrant a conviction, wherever there is independent proof that by someone a criminal act has been committed. Formerly it was contended that confession alone is a sufficient ground for conviction without such evidence, but cases in support of this doctrine are not decisive, as in all of them there appears to have been, outside the confession, some evidence—though slight—of confirmatory circumstances, and the contrary view may now be accepted as settled law."

Phipson on evidence, 7th Edn., p. 47 says that the corpus delicti may be established by the defendant's mere admission out of Court. He quotes $R$ . v. Sullivan (16 Cox, 347).

Taylor on Evidence, 11th Edition, in Article 866, classes a confession made before a magistrate as a judicial confession and in article 868 says that "whether on indictment for felony extra judicial confessions uncorroborated by any other proof of the cornus delicti are of themselves sufficient to justify conviction of the prisoner has been gravely doubted. In each of the English cases usually cited in favour of the sufficiency of this evidence, some corroborative circumstances will be found. He appears to, agree with Wills on this matter but attributes great weight to a judicial confession. The next article opens with the phrase "Whatever may be the correct rule with respect to uncorroborated confessions as recognized by Courts of Criminal Jurisdiction. ..." The learned author must be taken as leaving the matter in doubt in company with Halsbury. Best on Evidence, 12th Edition, in Article 442, says: "It is an established rule that the facts which. form the basis of the corpus delicti ought to be proved either by direct testimony or by presumptive evidence of the most cogent and irresistible kind, or by a clear and unsuspected confession of. the party. This is particularly necessary in cases of murder, where the maxim laid down by Sir Matthew Hale seems to have been generally followed, namely that the fact of death should be shown either by witnesses who were present when the murderous act was done or by proof of the dead body or some portion

of the dead body having been found; or where the body is in a state of decomposition, or is reduced to a skeleton, or is for any other reason, in such a state as to prevent identification by inspection it should be identified by dress or circumstances."

By a clear and unsuspected confession he means a plenary confession, a type which he looks upon as being in the nature of direct evidence.

Although confessions deliberately and voluntarily made are among the most effectual proofs in law, it being presumed that a rational being will not make an admission prejudicial to his interest and safety unless when urged by the promptings of truth and conscience, it is difficult to find a reported case in which a confession has by itself been accepted as proof of "the basis of the corpus delicti", to use Best's words, or where a "judicial confession" alone has been so accepted. Taylor quotes the American rule that when the *corpus delicti* is not otherwise proved the prisoner's confession is held insufficient to warrant his conviction, and adds that this opinion certainly best accords with the humanity of the criminal law and with the great degree of caution applied in receiving and weighing evidence of confessions in other cases. Russell on Crimes, p. $2156$ (7th Ed.) says that an extra-judicial confession if duly made and satisfactorily proved is sufficient alone to warrant a conviction without any corroboration aliunde in the case of most crimes but such a confession is not as a rule accepted by itself in cases of murder. In $R$ . $v$ . Davidson (25 Cr. App. R. 21) a conviction for murder was appealed against on the ground that there was no evidence of the corpus delicti, the body being missing. The prisoner had made three extra-judicial confessions of the killing of his son, he retracted them at the trial and gave evidence on his own behalf, in the course of which he stated he had found the boy in the canal and discovered he was dead. The Court held that had the jury been asked: "Are you satisfied here that the boy is dead?" they would on the evidence given by the appellant, apart from the rest of the evidence (extra-judicial confession), have answered in the affirmative. They further held that there were two questions to be put to the jury: "Are you satisfied the boy is dead and if so are you satisfied that he was murdered by the prisoner?" Proof of death therefore is to be considered before proof of guilt, which accords with the view expressed in Wills, page 333, above referred to.

In R. v. Kersey (21 Cox Cr. C. 690) the charge was murder of an infant and except for medical evidence that the accused had been recently delivered there was no other evidence but an extra-judicial confession. The confession alone was not considered sufficient evidence that the child had a separate existence from its mother, she was therefore convicted of concealment of birth.

There is some evidence of the basis of the corpus deliction this case because there is medical evidence of a recent birth apart from the confession.

the Indian case, $R. v.$ Petta Gazi (4 W. R. 19) $In$ the accused was convicted of murder. There had been a confession to a Police Magistrate by Petta and two others. At the sessions, Petta made a statement amounting to homicide by misadventure, and the others retracted altogether. The confession had been made in the first place to a police officer in consequence of which he found the grave and signs of recent exhumation, but no body. In the grave, however, were two pieces of clothes identified as having been worn by the deceased on his disappearance. Here again there is some evidence other than the confession.

In Empress of India v. Bhagirath (3 All. 383) the Court stated that the refusal of the Sessions Judge to convict of murder in the absence of a body was wrong. The murderer had made a confession. The Court then said: "Apart from Bhagirath's own confession there is cogent and convicting proof of his guilt and of her death by violence at his hands." This does not go as far as saying that a conviction can follow a confession.

In The Queen v. Buduruddin, very scantily reported in 11 W. R. 20, the Court under the circumstances of the case held the Sessions Judge right in convicting; the murder was effected according to the prisoner's confession by pushing the deceased out of a boat at night; the body was not found. It is not certain from the report whether there was other evidence.

In The Queen v. Bhuttun Rujwun (12 W. R. 49) the charge was dacoity and the prisoners were convicted on their own confession made to a magistrate.

The conclusion I reach from these authorities is that whether a person is to be convicted upon his own confession and nothing else depends firstly upon the weight to be given to such confession; whether standing by itself it creates that moral certainty in the mind of the tribunal which justifies it in rejecting any other possible conclusion than that the confession is true; that it can be regarded in the nature of direct evidence. Even so there is no reported case so far where a confession alone has been considered sufficient to support a conviction in a murder charge. The cases quoted in support of the view that a confession is sufficient to warrant a conviction are all of offences not involving capital punishment. R. v. Eldridge (1840 Russ. and Ry. 440), has by some writers been considered as an authority in support of that view. There the prisoner was charged with horse theft and before the confession was put in the Judge expressed the view that there was not sufficient evidence of the theit having been committed. The case was allowed to proceed and the confession made to a magistrate given in evidence. Two questions were reserved: $(1)$ whether there was any evidence of the felony having been committed, $(2)$ whether the prisoner can or ought to be convicted on his own confession merely without other proof of the felony having been committed. The Judges subsequently met and were of opinion that there was sufficient evidence to confirm the confession.

The view of the matter taken in Wills and in Taylor that there should be evidence of some confirmatory circumstances appears to me to be supported by the cases on the subject. Some greater weight may be given to a judicial confession. I therefore address myself to the question is there any evidence of confirmatory circumstances in this case. The extra judicial confessions by themselves alone cannot be of great weight because it is notoriously difficult with native witnesses to obtain the exact words and, where two persons are possibly implicated, which of those persons actually made the confession. There is the one witness Kihara who says his brother Lemunge had been missing for two years before these proceedings began; that his brother's wife wished to have the question of the heir decided and her own disposition in re-marriage considered; and that each of the accused, the wife and the old man, had spoken to him about a skull being seen in the bush. From these statements it would appear that the accused are saying, Lemunge is most probably dead and there are in the bush some remains which might be his and let us therefore consider him as dead.

Apart from the confessions this evidence can only show at the most that the woman, and in a lesser degree the man, are seeking to show that Lemunge is dead.

No great weight, as an isolated circumstance, can be given to the finding of the Registration Certificate.

Then we have the two statements made in Court in answer to the charge after the evidence of Kihara and Simba is given. The man Juma says in his confession "Finally the devil entered into me and I did as she bade me. So we cut Lemunge's throat."

Mariangai in her statement in answer to the charge says. that Juma cut Lemunge's throat. The whole of her statement is a refutation of what Juma had already said and, although nothing that she says is evidence against Juma, there is not in her statement any suggestion that Lemunge her husband is still alive.

Taking the man's statement it amounts to a plenary confession of killing Lemunge. To find evidence of confirmatory circumstances is difficult unless his extra-judicial confession is used for the purpose. There is not an absolute identity between the two confessions but sufficient identity in substance so as to compel a tribunal to give the judicial confession great weight. Faced with the charge in the Magistrate's Court he admits it. At the trial here he offers no evidence but makes an unsworn statement retracting the extra-judicial and the judicial confessions. The fact of death however will still rest upon unsworn statements of the accused persons even then.

The object of the man in making these self-disserving statements may be to damage the woman who, the husband being dead, he had hoped to acquire. The whole enquiry by Kihara began on the woman coming with a request to decide what was to be done with her. She, faced with a confession by Juma which is an accusation against herself, at first appears to deny complicity and in her own statement in answer to the charge to go further and accuse the man as the sole culprit.

Section 30 of the Indian Evidence Act was brought to my notice by the prosecution but is not strongly pressed. This. section permits the confession of one accused to be taken into consideration against the other accused as well as against the person who makes the confession. But the rule of practice is that no weight is to be given to the confession as against any other person than the party making it unless it be corroborated. by independent testimony. Such a confession being unsworn. is lower in value than the sworn evidence of an accomplice which requires corroboration.

Emperor v. Shambu and another (54 All. 350) supports the view that little evidentiary value can be given to the confessions here. These unsworn statements of mutual accusations may or may not be true but they are not sufficient, in the absence of evidence of confirmatory circumstances arising from a source outside the statements themselves, to make me convict of murder or manslaughter.

I order the accused to be discharged.