Rex v Kabutui (Criminal Appeal 153/1934.) [1935] EACA 60 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JOSEPH SILPIDAN, C. J., HORNE, J., and LANE, Ag. J. (all of Kenya).

## REX, Respondent (Original Prosecutor) $\boldsymbol{v}$ .

## KINGURU s/o KABUTUI, Appellant (Original Accused). Criminal Appeal 153/1934.

Evidence—Confession—Statement made by accused to District Commissioner in response to questions—Previous inadmissible confession.

The appellant was arrested on a charge of murder; while in the custody of a policeman he made a confession to the chief. The chief sent the appellant to the District Commissioner in custody with a letter setting out the effect of his confession. The District Commissioner questioned the appellant on the letter, but without giving him any warning, and the appellant admitted the contents to be true. At the trial the Judge held that the confession to the chief should be rejected, but that the confession to the District Commissioner, he being a Magistrate, was admissible under section 26 of the Indian Evidence Act, and that section 219 of the Criminal Procedure Code, prescribing the warning to be given to an accused by a Magistrate, applied only to statements made in the course of committal proceedings, and not to statements made at some previous time even to the Magistrate, who subsequently committed the accused for trial.

$Held$ (4-12-34).—That where a prisoner is questioned by a magistrate without any warning the confession cannot be regarded as voluntary, all the more so if he is questioned on an inadmissible confession. R. v. Pettit (4 Cox, 164) and R. v. Rosa (13 Cox 209) followed. Appeal allowed.

Lewey for Crown.

JUDGMENT.-In this case the one question for consideration is whether the confession of the accused was voluntary. $\quad\text{The}\quad$ accused was in custody when it was made but it is submitted that as it was made to a Magistrate it is admissible under section 26 of the Indian Evidence Act. The circumstances in which it was made were that the accused was sent to the District Commissioner in the custody of a tribal messenger with a letter from the chief. The District Commissioner read the letter which apparently contained a confession by the accused that he had killed a boy. This confession, which was made at an earlier stage to the chief while the accused was in the custody of a policeman, was rightly excluded by the learned Judge. The unusual course of calling the accused into the

District Commissioner's office and questioning him on the truth of the confession which was held to be inadmissible was followed. It was on the answers elicited that the conviction was The District Commissioner with the assistance of obtained. an interpreter questioned the accused on the letter and the accused admitted its contents to be true. The actual questions and answers are testified to by the interpreter. There is admittedly no other evidence in the case sufficient to sustain the conviction. Was the confession obtained in these circumstances admissible? Unquestionably it would not have been admissible prior to the repeal of Cap. 7 of Laws of Kenya, for the admissibility of a confession under section 26 of the Indian Evidence Act depended on the Magistrate satisfying himself that it was made voluntarily by questioning the accused person to that effect and certifying that he had done so. The question is now that Cap. 7 has been repealed what is the position? The answer to this is given in Rex v. Chuma arap Kimonja, 15 K. L. R. p. 102, in which it was decided that the practice and procedure of English law should be followed. This being so the case of Rex v. Pettit, 4 Cox (1850) 164 is an authority. In that case a statement elicited from a prisoner by questions put to him without any previous caution by a Magistrate before whom he was brought in custody upon a criminal charge was held to be inadmissible in evidence against him at his trial. The ruling of WILDE, C. J. at p. 165 reads: "I think I ought not to receive this evidence and I reject it upon the general ground that Magistrates have no right to put questions to a prisoner with reference to any matters having a bearing upon the charge upon which he is brought before them. The law is so extremely cautious in guarding against anything like torture that it extends a similar principle to every case where a man is not a free agent in meeting an inquiry. If this sort of examination be admitted in evidence it is hard to say where it might stop. A person in custody, or other imprisonment. questioned by a Magistrate, who has power to commit him and power to release him, might think himself bound to answer for fear of being sent to gaol. The mind in such a case would be likely to be affected by the very influences which render the statements of accused persons inadmissible". It seems to us that where a prisoner is sent for by a Magistrate and questioned by him without any warning that he is not bound to answer and that anything he says may be used in evidence against him, he cannot be considered a free agent and the confession cannot be regarded as voluntary and this all the more so if the prisoner is questioned on an inadmissible confession. In the case of Regina v. Rosa Rue 13 Cox (1876) p. 209, it was held that a second confession connected with a confession held to be inadmissible was itself inadmissible. At p. 211 DENMAN C. J. said: "The objection to it here is that it would not have been made but for the previous involuntary statement and it

is made in answer to questions put by the person to whom it was made, which questions were induced by the information obtained from the person to whom shortly before a confession has been made under an inducement. The confession under consideration in the case before us was made as a result of questions induced by the information contained in the letter which recorded an inadmissible confession. An argument has been addressed to us that inasmuch as there is now no procedure laid down outside the provisions of section 219 of the Criminal Procedure Ordinance enacting that a Magistrate has to satisfy himself and certify as formerly that a confession is voluntarily made, the confession is admissible. In our view, while there is no special form of words which a Magistrate should address to a prisoner in a case such as this, before a confession by a prisoner can be received under section 26 of the Indian Evidence Act, the Magistrate is obliged to satisfy himself that the confession is made voluntarily and where as in this case the Magistrate called the prisoner before him prior to the preliminary inquiry and questioned him, without any intimation from the prisoner that he wished to say anything, on a previous inadmissible confession and elicited as a result that he had committed a crime, such a confession cannot be said to be made voluntarily. We hold that the confession should have been rejected and there being no other evidence in-the case on which a conviction could rest, following the decision of this Court in the unreported case of Ijema Bocha v. Rex, No. 3/1921, we allow the appeal and direct the accused to be released. No question of a re-trial arises for the prosecution case could not succeed without the confession which we have held to be inadmissible.