Rex v Gae and Another (Criminal Appeals Nos. 126 and 127 of 1945) [1945] EACA 26 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Prosecutor)

(1) GAE s/o MAIMBA, (2) BAMBAI s/o DAA, Appellants (Original Accused) Criminal Appeals Nos. 126 and 127 of 1945

(Appeals from decision of H. M. High Court of Tanganyika)

Criminal Law-Murder-Uncorroborated retracted confession-Truth of confession.

The appellants were convicted of murder on their own uncorroborated confessions before a magistrate, which they subsequently retracted at their trial, the court believing the confessions to be true. The appellants appealed.

Held $(28-8-45)$ .—(1) There is no rule of law or of practice which makes corroboration of a retracted confession essential.

(2) Whilst corroboration of a retracted confession is desirable, if the Court is fully satisfied that the confession cannot but be true, there is no reason in law why it should not act upon it.

Appeals dismissed.

Sheonarain Singh v. Emp. (1929) I. L. R. Patna 262, Rex v. Keisheimeiza (1940) 7 E. A. C. A. 67 approved.

Appellants absent, unrepresented.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—The appellants have been convicted of the murder of Guimba, the husband of Gili, the principal prosecution witness.

It is admitted that the first appellant and Gili had committed adultery, and that there was a motive for the offence. Both appellants were arrested after the discovery of the deceased's body and subsequently taken to the Government station at Singida. On arrival there each of them made a confession to a magistrate. Neither appellant was present when the other made his statement. In each statement the maker described in detail a visit to the deceased's hut by night, during the course of which they made a combined attack on the deceased and strangled him. The only respect in which these statements differ is as to which appellant seized the deceased by the throat and which appellant seized him by the legs, each appellant seeking to minimize his own part in the attack. With regard to the incidents immediately preceding the attack, the two statements agree down to minute details. Taken at its face value, each of these statements is an admission that the maker was guilty of murder.

At the preliminary inquiry, after receiving the statutory caution, each appellant said he had nothing to add to the statement which he had already made to the magistrate. At the trial both appellants retracted these statements.

The magistrate who recorded the confessions and his interpreter were called as witnesses at the trial and the learned Judge was satisfied from their evidence that the statements were made in circumstances which showed that they were entirely voluntary. The learned trial Judge then looked for corroboration of their statements and rightly held that the woman, Gili, being an accomplice, could not be held to afford such corroboration. Notwithstanding that there was no other evidence to corroborate the confessions, the learned trial Judge came to the unhesitating conclusion that the confessions were true and convicted the appellants.

It is urged on appeal that the learned trial Judge ought not to have convicted the appellants on their confessions without material corroboration. Whilst corroboration of a retracted confession is desirable, there is no rule of law or of practice which makes such corroboration essential in every case. As said in *Sheonarain Singh v. Emp.* (1929) I. L. R. 8, Patna 262 at p. 265, "a retracted statement is admissible but should have no weight attached to it unless either corroborated in a material particular $\sigma$ unless the tribunal comes to the conclusion that the statement as a whole is a truthful statement. In either of these cases the statement may be given full weight". Again, as said by this Court in Rex $v$ . Keisheimeiza (1940), 7. E. A. C. A. 67, "in ordinary cases, as a general rule, when a statement is definitely and categorically retracted, it is unsafe for the Court to act upon it without corroboration, but, if after inquiring into all the material points and surrounding circumstances, the Court is fully satisfied that the confession cannot but be true, there is no reason in law why the Court should not act upon it".

Here, having directed himself and the assessors as to the desirability of corroboration and having failed to find it, the learned trial Judge said:

"I am unable to conceive how two persons making separate confessions, not in the presence of each other, concerning the death of a third party, can give almost complementary accounts as to the manner in which the deceased came by his end, unless they were actually present at the material time and heard and observed the things they described."

We find ourselves in complete agreement with the learned trial Judge and accordingly dismiss these appeals.