Rex v Kirimunyo (Criminal Appeal No. 166 of 1942) [1943] EACA 19 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before Sir JOSEPH SHERIDAN, C. J. (Kenya), Sir Norman WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

# KONSTANTI KIRIMUNYO, Appellant (Original Accused) Criminal Appeal No. 166 of 1942

# Appeal from decision of H. M. High Court of Uganda

Criminal Law-Murder-Sexual assault on child with weak heart-Subsequent death of child-Necessity for corroboration of child's unsworn statement-Uganda Evidence Ordinance, section 30, statement as to cause of death.

The facts in so far as they are material to the points on which the case is reported appear from the judgment.

### Held $(18-2-43)$ .—(1) Whilst strictly speaking the law does not regard corroboration as a necessary condition for the acceptance of a statement as to the cause of death, there is a danger of basing a conviction on such a statement alone when uncorroborated. The Court of Appeal will exercise the right to form an independent opinion as to whether or not a conviction based solely upon such a statement could be upheld in the circumstances of the case.

R. v. Ramazani bin Mirandu, 1 E. A. C. A. 107 referred to.

(2) Whilst there is nothing in the Evidence Ordinance to require corroboration of the statement of a girl of tender years as to a sexual offence against her, it is the practice to require corroboration of the evidence of a child complainant in the case of sexual offences. It is at least equally necessary in the case of a charge possibly involving the death penalty which had its origin in the alleged commission of a sexual offence. R. v. Opet $s/o$ Erui, 3 E. A. C. A. 122 referred to.

The appeal was allowed.

The conviction was quashed and sentence of death set aside.

Appellant absent, unrepresented.

### Stacey, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by MARK WILSON, Ag. C. J.).—The appellant was convicted and sentenced to death for the murder of a child named Tabawaili, a girl of nine, who, according to the medical evidence, was the victim of a forcible sexual assault within three days of her death. Considerable internal injuries to the private parts resulted. The child was already suffering from fatty degeneration of the heart and in the words of the medical witness, "owing to heart disease she could not bear the strain and died of heart failure, haemorrhage and severe pain... The effects of the haemorrhage and pain accelerated her death... She might have died in any event. . . I can't say when she would have died otherwise". In answer to the Court later he stated his opinion: "I think she would have died within three years of the fatty degeneration". $\sim$

On this evidence it would be necessary to consider the degree of criminal responsibility attaching to the person who committed the sexual assault on the child and thus caused her early death and we are unable to see in all the circumstances how the offence could properly be held to be anything more than manslaughter. But the first question to decide is whether the Crown has discharged the onus which lay on it to prove beyond reasonable doubt that the present accused, Konstanti, who was an uncle by marriage of the deceased child, was in fact the person who committed the fatal assault.

The deceased child, who lived with her parents at Nawandala in Busoga district, is said to have been in the habit of going to accused's house, about half an hour's walk from her home, to cook his food while his wife was absent in Bukedi on a visit. On Thursday on her return she appeared very ill and was questioned by both her father and her stepmother, but gave no explanation. Similar questioning on Friday had similar results, but on Saturday (according to their story) she complained, in answer to further questions, that Konstanti had had sexual intercourse with her and had threatened to kill her if she told anyone.

The child died on the next day, Sunday, and the accused was arrested on the father's complaint. He at once denied any knowledge of or complicity in the matter. He maintained this attitude throughout—before the Police Officer at Jinja to whom he made a statement, before the committing magistrate, and before the trial Judge. He even denied (to the Police Officer) that the child had ever been to his house during the absence of his wife. It is to be noted that there is no evidence on the record to show that she had, except that of the father and stepmother, but this evidence was accepted by the trial Judge.

The question then is whether there is any acceptable proof that accused is the guilty party. If the evidence of the father and mother be believed, and the learned trial Judge did believe it, there was opportunity. But it must be noted that it was not by any means exclusive opportunity. On her way to and from accused's house on that Thursday any evilly-disposed person might have committed the offence. It is to be noted that both assessors found the accused not guilty of any offence, the second assessor saying definitely that there was no substantial evidence against him.

The learned trial Judge, however, took a different view. He stated frankly in his judgment that the only evidence that accused committed a sexual assault on the deceased child was the statement made by her to her parents to that effect. But after discussing the point fully he came to the conclusion that that statement was sufficient to support a conviction. He based this decision on the grounds that the Uganda Evidence Ordinance requires no corroboration either of a statement as to the cause of death in accordance with Section 30 or of a statement made by a girl such as the deceased as to a sexual offence committed against her. It is necessary to examine these grounds closely.

It is correct to say that strictly speaking the law does not regard corroboration as a necessary condition for the acceptance of a statement as to the cause of death, But this Court has frequently commented on the danger of basing a conviction on such a statement alone when uncorroborated, and in Rex v. Ramazani bin *Mirandu*, I E. A. C. A. 107, laid down the principle that "as this is not a matter of the credibility of a witness testifying at the trial we are in as good a position as the learned Judge to estimate the value of the statement" and in that case and a number of later cases exercised the right to form an independent opinion as to whether or not a conviction based solely upon such a statement could be upheld in the circumstances of the case. Following that course here, we would stress the need for extreme caution in accepting Tabawaili's statement as true in view of the fact that it was not and could not be subjected to the test of cross-examination. It is also to be noted that the accusation it contained was not made at the first opportunity; indeed it was not made for three days after the alleged offence, in spite of repeated questionings by the child's parents. But it is only fair to emphasize that an explanation of this was put forward by the child which might well be true, namely that she had been threatened by accused and was afraid to tell at first.

Turning now to the other ground of the learned Judge's decision to accept the child's evidence, we agree with him that there is nothing in the Evidence Ordinance to require corroboration of the statement of a girl of tender years as to a

sexual offence against her. We would add that the learned Judge carefully considered every aspect of the case and warned himself of the caution which must be exercised in acting upon such an uncorroborated statement. But whilst we agree with him that where we have our law codified we are not necessarily bound by the English decisions, we have to bear in mind that we have our own case law founded upon the decisions of this Court, and as has been laid down by this Court in Rex v. Opet s/o Erui, 3 E. A. C. A. 122, and many other cases, it is the practice of this Court to require corroboration of the evidence of a child complainant in the case of sexual offences. If that wise rule of practice be accepted as necessary where the charge is one of a sexual offence not resulting in death we think it cannot be denied that it is at least equally necessary in the case of a charge possibly involving the death penalty which had its origin in the alleged commission of a sexual offence.

The position then is that the only evidence against the appellant is the unsworn uncorroborated statement of the deceased, a child of nine, imputing her fatal injuries to the act of the accused. The alleged statement was not made in the presence of the appellant and was not subject to cross-examination. It was not accepted by either of the assessors as sufficient to justify a conviction. In such circumstances we are of opinion that it would be unsafe to act on it.

The appeal is accordingly allowed, the conviction and sentence quashed, and the accused is ordered to be released forthwith.

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