Rex v Biagan (Cr. Case No. 48/1936) [1936] EACA 142 (1 January 1936)

## ORIGINAL CRIMINAL

## Before LANE, AG. J.

#### REX. Prosecutor ν.

# KIPTARTAR ARAP BIAGAN, Accused

### Cr. Case No. 48/1936

Criminal Procedure-Statement of accused to committing Magistrate -Preliminary inquiry re-opened-No statement made by accused at second preliminary inquiry—Admissibility of statement made at original inquiry—Cr. Pro. Code, secs. 219, 233, 289.

Held (17-6-36).—That the statement of an accused person at the first inquiry, where a re-hearing by the committing Court has been held under section<br>233 Cr. Pro. Code is not admissible at the trial.

Dennison. Crown Counsel. for Crown.

R. E. G. Russell, for accused.

A preliminary inquiry was held before a magistrate on 11-3-36 and the accused then made a statement and was committed for trial on a charge of murder. Further investigation was directed by the Attorney General under section 233, Cr. Pro. Code and on the 28th May, 1936, the proceedings were re-opened and all the depositions were recorded de novo. The accused then made no statement and was again committed for trial on a charge of murder. On his trial the prosecution sought to put in evidence the statement made by him at the first preliminary inquiry.

Dennison, for the Crown.-It has been laid down over and over again that the statement of an accused person must be put in at trial: See R v. Midagwe (2 E. A. C. A. 74).

Russell for the accused.—I am indifferent in this instance: it is an academic point which has not been decided as to what ought to be done in such a case where action has been talken under section 233, Cr. Pro. Code.

Dennison (after argument).—I am inclined to think that the statement ought to be left open. The Crown has had two bites at the cherry and it is only fair to allow the accused to avail himself of his choice equally.

After further argument: $-$

ORDER.-In this case the point raised is not of great importance but one can imagine cases where the accused might be definitely prejudiced by the putting in of a statement or evidence given by himself at a preliminary inquiry which has resulted in a nullity, and where a second inquiry was also held at which he made no statement, or a different statement. On a strict interpretation of the words of section 289 Cr. Pro. Code, I hold therefore that only the accused's statement or evidence in the proceedings which resulted in a committal (i.e. the 2nd proceedings ordered under section 233 Cr. Pro. Code), should be read and put in at the trial. In this case there was<br>no such statement: the accused made none. I therefore refuse to<br>admit the statement made by the accused at the first inquiry. He has made his election in the matter and he should be allowed the benefit of it.