Rex v Maganga (Cr. App. No. 62/1936.) [1936] EACA 48 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika), and GAMBLE, J. (Uganda).

## REX, Respondent (Original Prosecutor)

LABASHA BIN MAGANGA, Appellant (Original Accused). Cr. App. No. 62/1936.

Evidence—Confession—Repudiated Confession.

$Held$ (6-5-36).—That a denial by an accused that he ever made a confession, which is put in evidence against him, is not a retraction of the confession and a Court may convict upon it without<br>corroboration. (R. v. Mutwina s/o Maingi (1935 E. A. C. A. 66) distinguished).

Appellant absent, unrepresented.

Mathew, Ag. S. G. (Uganda), for the Crown.

JUDGMENT (delivered by SIR SIDNEY ABRAHAMS, C. J.).-The appellant, who was charged with murder, made in his statement before the committing magistrate a most ample and detailed confession of the crime. At his trial he denied having made this statement, and alleged that the magistrate had recorded something entirely different to what he had said, which amounted to a protestation of innocence, and that what was read over to him was what he had stated, not what had been recorded.

The learned trial judge held that the statement recorded had been made by the appellant after the proper statutory caution, and that it had been made freely and voluntarily. With that finding we agree. He also held that the statement contained nothing but the truth, and convicted the appellant. There were certain pieces of evidence, apart from the statement, which were somewhat incriminatory of the appellant, and if corroboration were needed to justify belief in the truth of the statement, it appears from the record that such corroboration was present. We agree with the learned judge's finding, and dismiss the appeal.

In the course of our examination of this case the question arose whether the statement of the appellant amounted in the circumstances to a retracted confession. The question is of some importance because it has been ruled by this Court in $R$ . $v$ . Mutwina $s/o$ Maingi (1935 E. A. C. A. 66), following the case of Emp. v. Shambhu and another (54 All. 350), that a retracted confession must be corroborated before a conviction can be founded on it. Denial of a confession embodied in the statutory

statement in the committing Court has seldom occurred in the Courts in these territories so far as we know, and in all probability will seldom occur, but it is of course possible that it may, and it is desirable to know whether such a denial amounts to a retracted confession, and, if not, how it should be regarded.

We can find no authority for holding that a denial that a confession was ever made amounts to a retraction of that confession. To retract a confession is to declare to be false a confession which is admitted to have been made. We can also find no authority which requires a Court to treat a confession denied as if it were a confession retracted.

In "Taylor on Evidence" at p. 584 of the 11th Edition, the following passage appears: "Indeed all reflecting men are now generally agreed that deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in the law, their value depending on the sound presumption that a rational being will not make admissions prejudicial to his interest and safety unless when urged by the promptings of truth and conscience." We see therefore no justification for discounting the value of a confession believed to have been made because the accused denies having made it, and we are of the opinion that a Court may convict upon such a confession if, taking circumstances of the case into consideration, there seems no reason to believe that the confession is not true.