Rex v Kihura (Criminal Appeal No.64 of. 1941) [1941] EACA 48 (1 January 1941)

## OF APPEAL FOR EASTERN AFRICA

# DAN, C. J. (Kenya), SIR HENRY WE and GAMBLE, J. (Uganda)

### REX, Respondent

#### $\mathbf{v}$

# MUKESI S/O KIHURA, Appellant Criminal Appeal No. 64 of 1941 Appeal from decision of H. M. High Court of Uganda.

Criminal Law—Confession—Corroboration—Retracted confession.

The facts appear sufficiently from the judgment.

Held $(6-5-41)$ .—(i) That an accused person cannot be said to have retracted a confession freely and voluntarily made merely by making an unsworn statement without referring in any way to his earlier statement confessing his guilt. Corroboration of the confession in such circumstances is not essential in law to justify a conviction and a direction that corroboration was necessary was wrong. Rex v. Sinoya and another, 6 E. A. C. A. 155, followed.

(ii) On the facts there was corroboration of the confession.

Appellant in person.

## McKisack, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—Even if we were to accept as true the unsworn statement made by the accused before the trial court in which he departed from the story told by him when he made two statements to the police described by the learned Judge as made freely and voluntarily, it could not be held that the accused, when he stabbed the deceased, was acting in self defence. In so far as it is necessary to refer to the statement, he said, "He wanted to beat me. . . . He approached in order to beat me. I retreated a pace and as he was coming nearer I gave him a blow with my stick. Mukasa then picked up a knife near the wall, as the house was very small, I had nowhere to run away, so I defended myself by hitting him on the hand with my stick; he dropped the knife, we both struggled to pick up the knife. I was quicker and got it first. I picked up the knife, he came nearer, so I stabbed him as I thought in the thigh, so that I might run away. When he felt the knife in him he left me. I took the knife and ran away. That is all". When this statement is examined it becomes perfectly clear that it cannot support a case of self-defence. Once the accused became possessed of the knife any danger to him vanished. It was a case of a man armed with a knife and a stick confronted by an unarmed man. The learned Judge, however, dealt with the case on the basis that this unsworn statement amounted to a retraction of the two earlier statements made by the accused and in summing up the case to the assessors he said that those statements made by the accused to the police had been retracted by the unsworn statement to which we have referred and that it would be unsafe to rely on them without corroboration. From his judgment it appears that he found corroboration in the medical evidence and the evidence of the witnesses. On consideration we are inclined to think that there is just sufficient corroboration in that evidence, for example, in the statement of Samusoni, that the knife did not belong to the deceased, and that even if corroboration were necessary the conviction could stand. But where we differ from the learned Judge is in his holding that corroboration was necessary, and in this connexion we would refer to Rex v. Sinoya and another, 6 E. A. C. A. 155, and Rex v. Keisheimeza w/o Tindikawa, 7 E. A. C. A. 67. An accused person cannot be said to have retracted a confession freely and

voluntarily made merely by making an unsworn statement at his trial, and an unconvincing statement at that, without referring in any way to his earlier statement confessing his guilt. As this question of retracted confessions arises not infrequently we think it desirable once more to refer to the passage quoted in Keisheimeza's case (supra). "It is unsafe for a court to rely on and act on a confession which has been retracted, unless after consideration of the whole evidence in the case the court is in the position to come to the unhesitating conclusion that the confession is true, that is to say, usually unless the confession is corroborated in material particulars by credible independent evidence, or unless the character of the confession and the circumstances under which it was taken indicate its truth". And in Sinova's case (supra) the authorities were reviewed and the opinion expressed that the danger of acting upon a retracted confession in the absence of corroboration must depend to some extent upon the manner in which the retraction is made. The learned Judge found that though the accused did not have the intention of killing the deceased he must be deemed to have had the intention of causing grave and dangerous harm. And this is so, for whether or not the accused actually had such intention, he must at least have known that his act would probably cause grievous harm to the deceased, and by section 196 $(b)$ of the Penal Code such knowledge constitutes murderous malice. That he refrained from stabbing deeply or somewhere in the region of the heart and that he was labouring under a sense of grievance may avail him in another quarter, but it cannot affect the decision in this Court.

The appeal is dismissed.