Rex v Lusota (Criminal Appeal No. 205 of 1940) [1941] EACA 25 (1 January 1941)

### COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

### REX, Respondent $\mathbf{v}$ .

## MALI KIZA S/O LUSOTA, Appellant

# Criminal Appeal No. 205 of 1940

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

Criminal Law-Evidence-Confession-Definition of confession-Use of alleged confession against co-accused.

#### The facts appear sufficiently from the judgment.

*Held* $(16-1-41)$ .—(1) That no statement that contains exculpatory matter can amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confession. Pakala Narayan Swami v.<br>The King-Emperor, 18 Patna L. R. 234, applied.

(2) A statement which exculpates the maker of it and throws the whole blame for causing death on another person cannot be considered as against that other person on the basis that it is a confession by the maker of the statement.

#### Appellant absent unrepresented.

Stacey, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The only real evidence against the appellant is contained in the statement made by him to Mr. Sharp. In that statement the appellant says, "I caught hold of the deceased's legs and kicked him". That clearly is not a confession of murder. In the case of Pakala Narayan Swami v. The King-Emperor, 18 Patna L. R. 234, the Privy Council said "no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confession. . . . . The definition (of confession) is not contained in the Evidence Act, 1872, and in that Act it would not be consistent with the natural use of language to construe confession as a statement made by an accused 'suggesting the inference that he committed' the crime".

For the sake of clarity we set out the material portion of the confession, which reads as follows: $-$

"Nyanzio pushed the deceased and struck him with his hand. The deceased fell down and Nyanzio caught hold of the deceased's hands and then hit the deceased on the stomach with one of Nyanzio's hands. I caught hold of the deceased's legs and kicked him. Then the accused Semewo came and caught the deceased by his chin and mouth and cut his throat with a knife. When we saw that the deceased had died we got on our bicycles and went away, leaving the deceased. We met a man named Dungu and on our way home we arranged to have the knife thrown in the lake. I took the knife and threw it in the lake at Kibanga. I did this after I had food at the place of Nyanzio Kiza. I went home and slept. That is all."

From this it will be observed that the appellant merely admits kicking the deceased. He describes the use of a knife by one of his co-accused and far from admitting any complicity in the use of that weapon would seem to dissociate himself from any responsibility for the death. This cannot possibly amount to a confession of murder.

The learned Judge, towards the end of his judgment, said, "In so far, however, as this confession implicates the second and third accused, the matter is different, for it is well established that it is unsafe to convict a person on the confession of a co-accused unless there is corroboration connecting that person with the crime (Rex v. Ndambia wa Wanderu (1937) 1 E. A. C. A. 27)". As to this we would observe that the confession in this case could never be used against the appellant's co-accused for the reason that the maker of the confession (which as we have said was not a confession of murder) not only exculpated himself but threw the whole blame for the death of Blasio on one of his co-accused.

The appeal is allowed, the appellant is acquitted and directed to be set at liberty.