Rex v Mitilande (Criminal Appeal No. 157 of 1939) [1940] EACA 11 (1 January 1940)

# COURT OF APPEAL FOR EASTERN AFRICA

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

### REX, Respondent

$\mathbf{v}$

# MITILANDE, Appellant

# Criminal Appeal No. 157 of 1939

## (Appeal from decision of H. M. High Court of Nyasaland)

Criminal Law—Confession—Onus of proof that confession was voluntary— Evidence.

Appellant appealed from a conviction of murder. The evidence against him consisted solely of that of an accomplice and a confession which the appellant alleged was extracted by torture and which he retracted at the trial.

#### Held $(12-2-40)$ .—(1) That the onus is on the prosecution, at all events where there is any reason to expect that a confession had been improperly induced, to prove that it was voluntary.

The Queen v. Thompson (1893, 2 Q. B. 12) followed.

(2) The fact that the appellant did not avail himself of the first opportunity of retracting his confession when he was brought before the committing magistrate does not necessarily prove it to have been voluntary for the cause that induced it may prevent its retraction and even a confession to a magistrate is not necessarily free from suspicion.

#### Archer for the appellant.

Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by WEBB, C. J.).—The only evidence against the appellant consisted of that of Kandapatuwe and that afforded by his own confession to Superintendent Green. The learned Judge rightly observed with reference to the evidence of Kandapatuwe that it required corroboration, and he found that corroboration in the confession of the appellant. But the appellant on his trial had retracted that confession alleging that it had been procured by means of torture inflicted upon him by the Police, and his evidence in this regard was supported by that of Kandapatuwe. Against this there was the mere denial of Constable Muhango, and we observe that, according to the record of the confession made by Superintendent Green, the latter does not seem to have satisfied himself by questioning the appellant that it was really voluntary, or to have done more than to administer the usual formal caution. On this matter of compulsion the learned Judge says: "If compulsion were used to force this statement from the accused he had the opportunity to say so when before Superintendent Green, and again he had the fullest opportunity to say so before the Magisterial Court. Here when asked if he wished to say anything, the accused said, 'I do not wish to say anything now'. Now for the first time when before this Court the accused puts forward the story that his statement was made as a result of prior compulsion by the Police. From the evidence before me I do not feel justified in concluding that this statement was one made under pressure and that it is false."

The fact that the appellant did not avail himself of the first opportunity of retracting his confession when he was brought before the committing Magistrate does not necessarily prove it to have been voluntary, for the same cause that induced it may prevent its retraction, and even a confession to a Magistrate is not necessarily free from suspicion. "Assuming that a prisoner has been induced to confess he will not unlikely assure the recording Magistrate that his confession is quite voluntary, knowing that he will leave the Magistrate's presence in the custody of the police and remain in their charge for many days to come." (Woodroffe & Ameer Ali, Law of Evidence in British India, 9th Edition, 275.)

Apart from this, however, the passage quoted from the judgment in this case. seems to indicate that the learned Judge considered that it was for the appellant to satisfy him that the confession was involuntary. But the case of *The Queen v*. *Thompson* (1893, 2 Q. B. 12) establishes that the onus is on the prosecution, at all events where there is any reason to suspect that a confession has been improperly induced, to prove that it was voluntary, and in our opinion that onus was not discharged in the present case, and the confession of the appellant ought not to have been received in evidence.

In these circumstances the evidence of Kandapatuwe stands uncorroborated and is insufficient to sustain the conviction.

The appeal is allowed and the conviction quashed. $\rightarrow$