Rex v Mgimba (Criminal Appeal No. 61 of 1948) [1948] EACA 23 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and PEARSON. J. (Uganda)

REX, Respondent (Original Prosecutor)

PANGAHESA s/o MGIMBA, Appellant (Original Accused)

Criminal Appeal No. 61 or 1948

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

Criminal Law—Murder—Uncorroborated retracted confession—Truth of confession-Statutory caution by Magistrate, Tanganyika Criminal Procedure

Code, section 223—Right to reserve defence.

The appellant, who was convicted of murder, had made an extra-judicial confession to a Magistrate shortly after arrest to the effect that he shot the deceased as an act of revenge. At the preliminary inquiry, after the statutory caution had been given, he said he would speak before the Judge. At the trial he gave evidence and for the first time claimed that he fired in self-defence.

Held (29-4-48).—(1) There is no absolute rule of law or of practice which makes corroboration of a retracted confession essential, and if the Court is satisfied as to its truth, after a full consideration of the circumstances, there is no reason in law why it should not act upon it.

Rex v. Gae s/o Maimba and another, 12 E. A. C. A. p. 82 followed.

(2) That it would be strange if a point could be made against an accused because following the statutory caution at a preliminary inquiry he did not then disclose his defence.

Rex v. Navlor, 23 C. A. R. 177 referred to. Appeal dismissed.

Appellant absent, unrepresented.

Hunter, Crown Counsel (Uganda) for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—This is an appeal from a conviction of murder in the High Court of Tanganyika. The short point for our concentration is whether the learned trial Judge was justified in convicting the appellant without finding that there was corroboration in the prosecution evidence of an extra judicial statement made by the appellant to a Magistrate not long after his arrest.

There can be no doubt whatsoever that the statement constitutes a full confession that he had shot the deceased as an act of revenge because he knew that he was carrying on an adulterous intrigue with his wife. At the end of the statement he is recorded as having said: "The statement I have made is quite voluntary and I have not been impressed by anyone else in any way that I. should make this confession, this statement has been read over to me and is true". He then put his right thumb print on the statement. At the preliminary investigation the appellant renewed his defence and in reply to the statutory caution by the Magistrate stated that he would speak before the Judge.

At his trial the appellant elected to give evidence and for the first time told. a story which put his shooting of the deceased in an altogether different light to that indicated by his first statement. He said he had been at a beer party where the deceased had threatened him and that on the way home he came across the deceased by chance who like him was carrying a gun. It may be here best to quote the appellant's exact words as recorded by the trial Judge.

"When I saw him he stopped and he raised his gun as though he was going to shoot me I backed a few paces and raised up my gun, he fired at me and I fired at him. His shot missed me. I was about 10 yards away from him when I fired. I did not wait to see the result of my shot but I ran away ... I came across the deceased unexpectedly. When I fired at deceased I was in fear of death at his hands. I fired at him to save my own life."

The learned trial Judge regarded this part of the appellant's evidence as constituting a retraction of his former confession which undoubtedly it is although the appellant himself has put it in another way. He has admitted that he did not tell the Magistrate the exact circumstances in which he came to shoot the deceased because he stated: "I was very ill that day with a pain in my chest". It may be observed here that the Magistrate Mr. Norton who gave evidence at the trial conceded in cross-examination that the appellant at the time he made the statement did complain of a pain in the chest. Apart from this it did not occur to Mr. Norton that he was ill because he did not look ill. As we have stated the learned trial Judge on a review of the prosecution evidence came to the conclusion that there was nothing in the Crown evidence which could be said to corroborate the self-confessed guilt of the appellant's early statement. There was in fact evidence tending to show that the appellant had made some kind of vague threat against the deceased at a beer party earlier on the day of the shooting; but the learned Judge no doubt in a desire to be strictly fair to the appellant concluded that it would be unsafe to build anything against the appellant on the prosecution evidence. Nevertheless the learned Judge convicted the appellant because after a full consideration of the circumstances he came to the unhesitating conclusion that the appellant's free and voluntary confession to Mr. Norton could not but be true. Under such circumstances the case of Rex v. Gae and Banbai (XII E. A. C. A. 82) which was cited by the Judge is authority for the proposition that there is no absolute rule of law or practice which makes corroboration of a retracted confession essential. It only<br>remains for us therefore to consider whether the learned Judge has adduced sufficient reason for the certainty he has expressed. In his consideration by the matter the learned Judge quite naturally reviewed the appellant's conduct between the making of his first statement and the evidence he gave over six months later at his trial. In his review we think it would have been better had the learned Judge refrained from commenting adversely on the fact that the appellant did not amend his earlier statement when he was addressed by the committing Magistrate in term of section 223 of the Tanganyika Procedure Code. The learned Judge appears to have overlooked that in his reply to the Magistrate's inquiry he did at least indicate a wish to make a further statement before a Judge. As was said by the Lord Chief Justice of England in the Court of Criminal Appeal case of Rex v. Naylor (23, CR. A. R. 177) it would be strange if a point can be made against an accused person, if following the very words of the statutory caution addressed to him, he remains silent and does not then and there disclose his defence. Having said that, however, we say at once that we agree entirely with the learned Judge that it is idle to suppose that however ill the appellant may have felt when he was speaking to Mr. Norton he would not have found the strength to have told the Magistrate that he shot the deceased in self-defence if this had been so. However ignorant and primitive the appellant may be and he is not so primitive as not to understand the use of firearms, we think any other view would be altogether unreasonable, and we are not surprised therefore that both Judge and assessors rejected his story that the deceased lay in wait for him and shot at him first. We think from the conduct of the appellant one is forced to the conclusion that his story of self-defence is an afterthought. Under these circumstances we are of the opinion that the learned trial Judge was justified in convicting the appellant.

The appeal is dismissed.

(Note.—This judgment was signed by Sir Barclay Nihill, C. J., and Edwards, $C. J.$ )