Rex v Bitashubirwe (Criminal Appeal No. 16 of 1943) [1943] EACA 24 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and HAYDEN, J. (Kenya)

## REX, Respondent (Original Prosecutor)

## BITASHUBIRWE bin GUJWIRE, Appellant (Original Accused)

## Criminal. Appeal No. 16 of 1943

Appeal from decision of the Resident Magistrate sitting in Extended Jurisdiction at Bukoba (Tanganyika)

Extended Jurisdiction—Criminal Law—Murder—Tanganyika Criminal Procedure Code, Section 265—Admissibility of evidence of child not upon oath or

affirmation—Criminal Procedure Code, Section 146—Indian Oaths Act, 1873, Section 13—Oaths and Affirmation Rules, 1925—Practice of Courts with

child witnesses—Corroboration.

The accused was convicted by a Court having extended jurisdiction of the murder by strangulation of a girl. The conviction depended almost entirely upon the evidence of a seven year old boy and admissions made by the appellant. The boy died between the preliminary inquiry and the trial and his deposition was put in at the trial under Section 265 of the Criminal Procedure Code. On appeal it was argued that the evidence of the boy was not admissible as it was not given on oath or affirmation and as the Magistrate received his evidence. without having tested the witness's capacity to understand and to know the difference between truth and falsehood.

Held (19-2-43).—(1) That Section 146 of the Tanganyika Criminal Procedure Code does not require a Court to record its reasons in any set form for permitting a child to give evidence without being sworn or affirmed. It is sufficient if the reasons appear by clear implication on the face of the record. A good test of a child's capcity to testify is often to be found in the way the evidence is given.

(2) That the effect of the Indian Oaths Act, 1873, Section 13, and the Oaths and Affirmations Rules, 1925, which have to be read in conjunction with Section 146 of the-Tanganyika Criminal Procedure Code, is that the Court should first satisfy itself that a.<br>child of tender years is capable of giving evidence. If it is so satisfied it should have the child sworn or affirmed. If, however, the Court omits to administer an oath or affirmation and merely cautions a child to speak the truth (as is the practice in England) such<br>omission, whether due to negligence or to a mistaken view of the law, is cured by Section 13 of the Oaths Act. which provides that no omission to take any oath or to make: $\overline{\mathcal{C}}$ any affirmation shall render inadmissible any evidence whatever.

Eatu Santal v. King Emperor. A. I. R. (1921) Patna 109 and Emp. v. Sahdeo Ram (1936) I. L. R. 58 All. 23 referred to.

(3) That. by Section 146 of the Tanganyika Criminal Procedure Code, a child of tender years need not be sworn. The section does not exempt him from the alternative of affirmation.

(4) That by virtue of Section 13 of the Indian Oaths Act; 1873, the revidence of the child although unsworn and unaffirmed was rightly admitted at the trial.

(5) That there was corroboration of the child's evidence.

R. v. Baskerville, 25. Cox 524 referred to:

The appeal was dismissed.

$\cdot$

Appellant absent, unrepresented.

**Brown, Solicitor General (Kenya), for the Crown.**

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The conviction in this case depended almost entirely upon the evidence of a seven year old boy, Leonard, and admissions made by the appellant to one Kashania. The boy died between the preliminary inquiry and the trial and his-deposition was duly put in at the trial under Section 265 of the Criminal Procedure Code.

The first ground of appeal is that the evidence of Leonard was not admissible as it was not given on oath or affirmation and the Magistrate recorded his evidence without having tested the witness's capacity to understand and to know the difference between truth and falsehood. The deposition commences as follows: "Leonard s/o Petro, Mruanda, Christian, a young boy of seven years of age, warned to speak the truth". The learned Magistrate who tried the case under extended jurisdiction deals with this point at page 4 of his judgment in the following words: -

"Thus is indicated that the witness although he was of the Christian faith he was not sworn but merely warned to speak the truth, also the reason for such action, i.e. that he was a young boy of the tender age of seven. Further the other witnesses are shown as affirmed or sworn, as the case may be. Therefore I am of the opinion that the Magistrate has satisfied the requirement of Section 146 of the Criminal Procedure Code, I can find no provision requiring the magistrate to record that he has satisfied himself that the witness is capable of understanding and giving rational answers and of understanding the difference between truth and falsehood. The magistrate who recorded this evidence is one of experience and must be presumed to have so satisfied himself before recording the evidence."

We are in entire agreement with his reasoning and the conclusion to which he came. Section 146 does not appear to us to require the Magistrate to record his reasons in any set form, and it is we think sufficient if, as in this case, the reasons appear by clear implication on the face of the record. We would add that a good test of a child's capacity to testify is often to be found in the way in which the evidence is given, and it is clear from the deposition of Leonard as recorded that he was capable of making intelligent answers. There is the further question as to whether he ought to have been affirmed. The Magistrate followed the English practice which in our practical experience has always been found to be the most satisfactory, but the law in force in Tanganyika is the Indian Oaths Act, 1873, and the Oaths and Affirmations Rules, 1925, which have to be read in conjunction with Section 146 of the Tanganyika Criminal Procedure Code, which reads as follows: -

"Every witness in any criminal cause or matter shall be examined upon oath or affirmation and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation: Provided that the court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring the taking of any oath whatever is according to his religious belief unlawful or who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath; the fact of the evidence having been so taken being also recorded in the proceedings."

Under the Indian Oaths Act all witnesses capable of testifying must take either an oath or an affirmation. There is no exception in the case of children, and the effect of the Indian authorities may be stated shortly as follows: The Court should first satisfy itself that a child of tender years is capable of giving evidence. If it is so satisfied it should have the child sworn or affirmed. If, however, the Court omits to administer an oath or affirmation and merely cautions the child to speak the truth (as is the practice in England) such omission, whether due to negligence or to a mistaken view of the law, is cured by section 13 of the Oaths Act which provides that no omission to take any oath or to

make any affirmation shall render inadmissible any evidence whatever. (See Fatu Santal v. King Emperor, A. I. R. (1921) Patna 109, and Emp. v. Sahdeo Ram (1936) I. L. R. 58 All. 23). The only alteration made by section 146 of the Tanganyika Criminal Procedure Code is to provide that a child of tender years need. not be sworn. It does not exempt him from the alternative of affirmation.

This would appear to be the law in Tanganyika, curious and illogical though it may seem to many of us. We do not consider that any blame or criticism should be levelled at the Magistrate who "warned" the child Leonard "to speak the truth". He did precisely what most Judges and Magistrates habitually do, since the principal object of the Court when dealing with a very young child witness is to put him at his ease and give him confidence so that he may tell his tale freely, fearlessly and truthfully. Judges and Magistrates have their own individual methods for trying to attain this most important objective, and in our experience they invariably take great pains to do so. The form of affirmation used in these Courts is: "I solemnly and truly declare and affirm that the evidence I shall give to the Court touching the matters in question shall be the truth, the whole truth, and nothing but the truth". It may be questioned whether to make a child of five repeat words such as those is the way best calculated to put him at his ease and get the best results, but the law as it stands in Tanganyika appears to require that that be done. It would also seem rather illogical that such a child if born of Christian parents should be regarded as capable of making an affirmation but incapable of taking an oath by the Deity. No such distinction is made in England. Fortunately the provisions of section 13 of the Indian Oaths Act have wisely been made very wide and they cover the present case, so that there is no doubt that the evidence of Leonard at the Preliminary Inquiry was rightly admitted at the trial. His evidence was to the effect that he saw the appellant assault the deceased, seize her by the throat and drag her from the hut. The medical evidence was that she died from strangulation and asphyxia. The learned trial Magistrate rightly directed himself as to the need for corroboration of Leonard's evidence and found it in the statement made by the appellant to Kashanja.

The second ground of appeal is that this statement to Kashanja did not amount to a confession and was so vague and obscure that it ought not to have been relied upon. Kashanja stated that the appellant came in about 2 a.m. and told him that the girl at Petro's house (where deceased lived) had abused him so he had beaten her and she fainted. If it was reported that she was dead he would give himself up at Bukoba. We hold this to be ample corroboration of Leonard's evidence, as laid down in R. v. Baskerville, 25 Cox 524, as tending to implicate the appellant and to connect him with the crime and also tending to show that Leonard's story was true and could safely be acted upon.

As regards the last ground of appeal, the appellant has never suggested that he was drunk and there is no evidence which could support a finding that he was incapable of forming an intention within section 14 (4) of the Penal Code.

The evidence supports the conviction and the appeal is dismissed.