Rex v Kasule and Others (Criminal Appeals Nos. 184, 185 and 186 of 1948 (Consolidated)) [1948] EACA 48 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda) and LLOYD-BLOOD, J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

## (1) ERIYA KASULE, (2) ALINYIKIRA w/o ZAKALIYA, (3) KAMUWANDA s/o MUZAWULA, Appellants (Original Accused 1, 2 and 3 respectively)

Criminal Appeals Nos. 184, 185 and 186 of 1948 (Consolidated)

(Appeal from decision of H. M. High Court of Uganda)

"Criminal Law—Murder—Evidence—Confession to Assistant Inspector of Police -Uganda Evidence Ordinance, Section 24-Confessions to gombolola chief -Whether "Police Officer" or "person in authority"-No caution administered to appellants—Evidence Ordinance, Section 27— Circumstances rendering confessions involuntary.

The three appellants, who had been charged with a fourth person (later acquitted), were convicted of murder.

The second appellant made a voluntary statement to an Assistant Inspector of Police (admissible under section 24, Uganda Evidence Ordinance) amounting to a confession of guilt.

The case against the first and third appellants depended largely on statements allegedly made by them to a gombolola chief. The first appellant was brought before the chief bound, and was then unbound. No caution was administered by the chief. One witness, Benedicto, accepted that before the appellant made his statement the chief said to him: "Tell me how you killed your father". The trial Judge, in ruling that the statement of the first appellant was admissible was of opinion that nothing more harmful was said after the charge than a request for an account concerning events with reference to the killing. He said: "The accused was asked for his story, and though no doubt it was assumed he could give information I do not think he was pressed to confess. What, however, is perfectly clear is this, that no caution was administered, and I think it quite possible that the accused would consider that he must make a statement or tell a story of some sort. He would probably never consider that he could remain<br>dumb". The trial Judge did not think that the lack of caution, if the statement was otherwise voluntary, would invalidate a confession, referring to section 27, Uganda Evidence Ordinance.

As regards the statement made by the third appellant, the trial Judge ruled that before making it, the general idea conveyed to him by the chief was: "Well, even so, what do you know about the case? Tell me anything you know".

**Held** $(1-11-48)$ .—(1) That the appeal of the second appellant be dismissed.

(2) That for the purpose of statements made to them by accused persons, gombolola chiefs must be regarded, not as police officers, but as persons in authority, and that the tests set out in Archbold's "Criminal Pleading and Practice", 31st Edition p. 366 apply.

Wanda s/o Mbago v. R., 12 K. L. R. 136 referred to; R. v. Maganda s/o Okurut.<br>11 E. A. C. A. 81 quoted; R. v. Okelo Byenzi s/o Anyoro, 5 E. A. C. A. 140 followed;<br>Tests as to admissibility as set out in Archbold's "Criminal Pleadi Edition p. 366 and in Reg. v. Rose, 67 L. J. Q. B. 289 quoted.

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(3) That in applying these tests, and holding that a Court would be bound by the admission of witness Benedicto that the chief said to the first appellant "Tell me how you killed your father", the Court was unable to agree that the words: "Tell me" could reasonably bear the meaning of conveying a mere request. That as the appellant had been brought bound into the presence of the chief, a person in authority, who gave the peremptory order: "Tell me", it would be impossible to hold that anything the appellant said in obedience to such a command was said voluntarily.

(4) That with reference to the words of the learned trial Judge "What however is perfectly clear is this, that no caution was administered, and I think it quite possible that the accused would consider that he must make a statement or tell a story of some sort. He would probably never consider that he could remain dumb", a natural corollary of this finding would appear to be that anything he did utter would not be uttered voluntarily.

(5) That once the learned trial Judge had held that the first appellant probably did not consider that he could remain silent, he should have ruled that the statement was not a voluntary one.

(6) (a) That the statement made by the third appellant should have been likewise excluded.

(b) That in interpreting the words of section 27, Uganda Evidence Ordinance, relevant to this appeal, namely: ... "or because it (the statement) was made in answer to questions which he (the appellant) need not have answer in mind was a case where, in a confession which was otherwise voluntary, the person recording the confession may have asked one or two questions.

Kenny: "Outlines of Criminal Law", 15th Edition, 1936, p. 469 quoted.

Appeal of second appellant dismissed. Appeals of first and third appellants allowed.

(Their Lordships especially reserved for future consideration, should the necessity for a decision on the point ever arise, the question whether a gombolola chief receiving a statement from an accused person should administer a caution such as policemen in England are expected to administer.—Editor.)

## O'Donovan for the Appellants.

Sir James Henry, Crown Counsel (Tanganyika); for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—These appeals, which we consolidated for hearing, are from a judgment of the High Court of Uganda which had convicted all the three appellants and sentenced them to death. From these convictions and sentences all the three appellants now appeal to this Court. The victim of the murder was a man named Zakaliya Kitwe. "There can be no doubt" (said the learned trial Judge in his judgment and we agree with him) that Zakaliya was murdered by some one or more persons who half-severed his head with a violent blow from a panga or similar weapon, and who, having killed him, dismembered his body and hid it in a hole about a mile from his house". The first appellant (hereinafter referred to as "Eriya") is a son of Zakaliya and the second appellant (hereinafter referred to as "the widow") is the widow of Zakaliya, while the third appellant (hereinafter referred to as "Kamuwanda") was for about two weeks in January of this year employed by the deceased as a labourer. At the trial there was a fourth accused, also a former employee of the deceased, whose name was Karumbete but he was acquitted by the learned trial Judge and we are accordingly not concerned with him in this appeal. We think that it will be convenient if we first deal with the case of the widow. She made a voluntary statement to Mr. Derek W. Hodgson, an Assistant Inspector of Police at Masaka, Uganda, in which she made a clear and unqualified admission that she became angry and killed her husband, her reason being that he had earlier this year threatened to kill her. He bought native medicine which did not kill. her and he then said that he would bring petrol and burn her and he did in fact buy petrol which was still in their house. Before the committing Magistrate she elected to give evidence from the witness box in which she seems by implication to have tried to go "back on" her statement to Mr. Hodgson, since she accused Kamuwanda of killing her husband. In spite of the able argument of her

advocate, Mr. O'Donovan, we agree with learned Crown Counsel (Sir James Henry) that there is no reason for thinking that her statement to Mr. Hodgson was not only free and voluntary but was a true statement of what occurred and that at least it must be inferred from that statement that she knew of the plan to kill her husband and aided and abetted it. We accordingly dismiss her appeal. In passing, we may say that there was other evidence, such as that of her daughters, which caused her statement to Mr. Hodgson to be likely to be true. There was, moreover, evidence as to her subsequent conduct in that, after the disappearance of her husband, she told some people that he had gone on a journey to a certain place.

The case against the other two appellants depended largely on statements allegedly made by them to a *gombolola* chief. Before approaching the vital question whether it was established that these statements were voluntary it is desirable that at this stage we should discuss the point whether a *gombolola* chief is, for the purposes of this branch of the law, a "Police Officer" or whether he is to be regarded just as a "person in authority". The law as to this seems to be fairly well settled.

In Criminal Appeal 9 of 1929, Wanda s/o Mbago v. Rex, Vol. 12, Kenya L. R. page 136, this Court held at page 138 that in Uganda a chief is not a police officer for the purpose of section 136 (3) Criminal Procedure Ordinance. In Criminal Appeal No. 45 of 1944, Vol. XI, E. A. C. A., L. R. page 81, this Court said "As has been held by this Court in R. v. Okello Byenzi (1938), 5 E. A. C. A. 140, there is nothing contained in section 24 of the Uganda Evidence Ordinance which renders a confession inadmissible merely by reason of the fact that it has been made to a chief. On the other hand the circumstances in which a confession was made to a chief may be such as to make the statement involuntary by reason of the manner in which it was elicited or as to render it in the words of the Court of Criminal Appeal in R. v. Voisin (1918), 12 Cr. App. Rep. 89 at p. 95, "unreliable or unfair for some reason, to be allowed in evidence against the prisoner. If, for some example, a public servant, who though not a "police officer, has power to arrest or order the arrest of another person, without administering a proper caution, interrogates a person after he has been arrested or it has been decided to arrest him, any answers given by the person so interrogated ought not to be received in evidence (R. v. Knight (1950) 20 Cr. C. 711; R. v. Booth (1910) 5 Cr. App. R. 177). In the present case it is to be noted that the chief had the power of arrest under section 5 (3) of the Native Authority Ordinance and the appellant was actually under arrest".

In Crim. App. 194 of 1938 this Court intimated that it was not prepared to say that a confession made to a chief is inadmissible on a strict reading of section 24 Uganda Evidence Ordinance (Vol. 5 E. A. C. A. L. R. page 140).

The appellant's advocate (Mr. O'Donovan), in his able address, suggested that since a *gombolola* chief is not a police officer of or above the rank of Assistant Inspector no statement made to him by an accused person is admissible having regard to the terms of section 24 Uganda Evidence Ordinance. We do not agree for the simple reason that we consider that that section refers only to statements made to members of the regular Uganda police force. We accordingly reach the conclusion that, for the purposes of statements to them made by accused persons, gombolola chiefs must be regarded as persons in authority and that the tests set out in Archbold's Criminal Pleading and Practice $(31st Edit.)$ page 366 apply.

We now quote from page 366 as follows: —

"These several species of confession, in order to be admissible, must be free and voluntary, and unless it be shown affirmatively on the part of the prosecution that it was made without the prisoner's being induced to make it by any promise of favour, or by menaces, or undue terror, it shall not be received in evidence against him".

In the case of Regina v. Rose, Vol. 67 L. J. Q. B. 289 it was held that the whole of a statement made in answer to a question "You had better tell me all about the corn that is gone" was inadmissible, since the words used contained in themselves an inducement to make a statement. The observations of Lord Russell of Killowen, C. J., in that case are of interest. We see little difference between the words "You had better tell me" and the words in the instant case "Tell me"."

Keeping these tests in view we now turn to a consideration of the learned trial Judge's ruling and his reasons therefor. The Judge frankly conceded that it was only the statement alleged to have been made by the first appellant that could "be called a confession in the full sense". He went on to say in his ruling at pages 33 and 34 of the typed transcript of proceedings (Vol. 1): $-$

"A very large proportion of the time in this case has been spent in investigating the circumstances which led up to certain statements said to have been made by the first, third and fourth accused, to the *gombolola* chief.

Of these statements only that of the first accused can be called a confession in the full sense, but those of the third and fourth accused contain matter damaging as showing complicity and for the purposes of determining admissibility I have treated them as confessions, though of course they can not be regarded as evidence against any one save their makers.

Now as to the statement of the first accused Eriya. I have heard the gombolola chief himself, his clerk Benedicto, his Musigire Mansweto, and one Valentini a well educated person who was present when the statement was made. Having heard their evidence I am satisfied of the fact that Eriya was brought before the chief bound and was then unbound. Now as to what it was that the chief said to him considerable difficulty arose. Clearly enough he was told that he was accused of the murder of Zakalia Kitwe. But as to what followed I have spent very long in trying to ascertain. The difficulty has been that no one of the witnesses is accustomed to think or speak precisely and between such phrases as "Say how you killed your father" "Tell me about the killing of which you are accused" "What do you know about this crime" and the like they could quite honestly see little distinction. They tended to agree to almost any suggestion as to what was said without considering distinction in phrasing. Some discussion arose as to whether the chief said "Tell me how you killed your father" a phrase culled from the depositions. Benedicto having originally stated very clearly that a far more innocuous phrase was used accepted this as being what was said, though it was quite clear to me that he had the utmost difficulty in understanding what all the questioning was about and could not clearly see a distinction between the phrases put to him. But, I, having heard all the evidence on the point have reached the conclusion that nothing more harmful was said after the charge than a request for an account concerning events at Zakalia's house with reference to the killing. I do not think that a definitely leading question was asked, nor do I think that the form of questions assumed guilt. The accused was asked for his story, and though no doubt it was assumed he could give information I do not think he was pressed to confess. What, however, is perfectly clear is this that no caution

was administered, and I think it quite possible that the accused would consider that he must make a statement or tell a story of some sort. He would probably never consider that he could remain dumb. It is really this point that his counsel relied upon and it is to be noted that no account of pressure to confess has been given by the defence though I invited the evidence of of the accused thereon.

Now I do not for one moment wish to give the impression that I approve of chiefs taking statements without clearly telling those in their custody that. they are free to speak or remain silent just as they choose.

If chiefs are going to record statements as a matter of course they should not only caution the accused but should write down at the head of the record precisely what they intend to say by way of caution and read it to the: accused. But I do not think I can say that the lack of caution, if the statement is otherwise voluntary and no grave unfairness or pressure is apparent. will invalidate a confession. Section 27 of the Evidence Ordinance is very much in point here. Nor do I think that the belief that some statement must be made necessarily renders a confession involuntary. So long as an accused is given the free choice of denying knowledge of the affair, denying guilty participation or admitting guilt I cannot see that he had been inducted or forced to confess. I think that the position here was that the accused was. left free to say precisely what he chose and received no inducement to confess nor was put in fear of evil consequences if he failed to confess. I think it absurd to suppose that he thought some benefit would accrue from confessing a foul murder and I cannot see that any threat of ill-consequences. was held over him if he failed to confess.

I have considered the question of exclusion on the grounds of unfairness. and impropriety. But though I deprecate the lack of caution I do not think that I should exercise my discretion to exclude this statement. It would be admirable if chiefs could be taught the best traditions of the English law, but I see no impropriety here sufficiently grave to bias my discretion. The application of section 24 of the Evidence Ordinance to chiefs I have considered in a previous ruling.

I will admit the statement of Eriya."

That ends our quotation from the learned trial Judge's ruling. We think that, on any view of the matter, a Court would be bound by Benedicto's admission. in evidence that he accepted as true the fact that the chief said to the first appellant "Tell me how you killed your father". It logically follows that what we must now ask ourselves is whether an accused person would regard that asan order or command from the chief to speak out or whether (as the learned Judge went on to find) it was a mere request out for an account concerning events at Zakalia's house with reference to the killing. With all respect to thelearned trial Judge, we are unable to agree that the words "Tell me" can reasonably bear the meaning of conveying a mere request. When one remembers. that the first appellant was under arrest and had been brought, *bound*, into the presence of the chief, who was undoubtedly a person in authority, and that that chief gave him a peremptory order "Tell me" it seems impossible to hold that anything that the appellant said in obedience to such a command was said voluntarily. Very important words and words of the utmost significance in the ruling of the learned trial Judge are these: "What, however, is perfectly clear is. this that no caution was administered, and I think it quite possible that the accused would consider that he must make a statement or tell a story of some sort. He would probably never consider that he could remain dumb". A natural corollary of this finding seems to us to be that anything that he did utter was not uttered. voluntarily. The learned trial Judge seems to have considered that, since there was no evidence of any actual pressure having been applied to the first appellant, he was entitled to hold that the Crown had discharged the onus of proving affirmatively that the statement was a voluntary one and that it was then for the Defence to bring rebutting evidence. Here again we are obliged to part company with the learned Judge. We merely repeat that, once the Judge had held that the first appellant probably did not consider that he could remain silent, he should have ruled that the statement was not a voluntary one. For these reasons we think that the statement made to the *gombolola* chief should not have been admitted in evidence. We especially reserve for future consideration, should the necessity ever arise for a decision on the point, the question whether a *combolola* chief receiving a statement from an accused person should administer a caution such as policemen in England are expected to administer in accordance with what are known as the "Judges rules" although perhaps section 27 Evidence Ordinance may itself supply the answer. We now turn to the statement made to the *gombolola* chief by the third appellant, Kamuwanda. The learned trial Judge says in his ruling that the general idea conveyed by the chief to Kamuwanda was "Well, even so, what do you know about the case? Tell me anything you know". In view of the learned trial Judge's remarks that section 27 Uganda Evidence Ordinance is very much in point here we have seen fit to examine this section which is in following terms, "If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him".

The only words of the section with which, in our view for the purposes of this appeal, it is necessary to deal are "or because it was made in answer to questions which he need not have answered". We think that what the legislator had in mind there was the case where, in a confession which was otherwise voluntary, the person recording the confession may have asked one or two questions. We repeat the trial Judge's own remarks. "He would probably never consider that he could remain dumb". In this connexion it is of interest to note what appears in Kenney's "Outlines of Criminal Law", (15th) 1936 Edition at page 469 "It is not necessary that the prisoner should have been pressed to confess guilt; it is sufficient if he were pressed to say anything whatever. Thus "It might be better for you to tell the truth and not a lie" will suffice to exclude a confessions, although "Speak the truth if you speak at all" is harmless".

We were unable to differentiate between the cases of the first and third appellant quoad the statements allegedly made by them to the gombolola chief. We think that the statement made by the third appellant should likewise have been excluded. It was not contended by learned Crown Counsel that, apart from the statements to the *gombolola* chief, there was evidence (although there may have been suspicious circumstances) sufficient to warrant the conviction of first and third appellants whose appeals we accordingly allow. The convictions of these two appellants are therefore quashed and their sentences set aside. They will be released forthwith.