Rex v Mulebi (Criminal Appeal No. 73 of 1948) [1948] EACA 20 (1 January 1948)

# COURT OF APPEAL FOR EASTERN AFRICA

Before EDWARDS, C. J. (Uganda), PEARSON, J. (Uganda), and AINLEY, J. (Uganda):

### REX, Respondent (Original Prosecutor)

ν.

## MANGE s/o MULEBI, Appellant (Original Accused)

### Criminal Appeal No. 73 of 1948

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

Criminal Law—Murder—Extra-judicial confession of accused to wife by nativelaw and custom—Whether privileged under section 122, Indian Evidence Act. -Delay of witnesses of extra-judicial confession in raising alarm or volunteering information—Credibility—Duty of trial Judge.

The appellant was charged with murdering, by strangulation, the senior of his two wives. There was no eye-witness to the killing. The appellant and deceased had been on bad terms for about a year and had frequently discussed divorce, and. there was evidence that on the night of the crime they quarrelled and were heard to run away from their abode. On his return alone the appellant, when questioned by his second wife Kwaya, in the presence of two other women, as to where the deceased was, stated that he had killed her and warned them to keep quiet about. it or he would kill them also. At the trial, the appellant's advocate submitted that. evidence of the appellant's confession was inadmissible, being privileged under section 122, Indian Evidence Act as a communication purely between spouses, but the trial Judge ruled it to be admissible. Kwaya and the other woman who gave evidence of the appellant's confession first made statements to the police: incriminating the appellant only nineteen days after the deceased's death but. the trial Judge held that their evidence was not tainted because they did not raise an alarm on the night of the crime after the appellant admitted the killing. or did not go to the authorities on the following day to volunteer information. He found that as the appellant had admitted just killing one woman, his threat. to kill any other who did not remain silent had an unquestionable cogency; on the matter of failing to volunteer information to the authorities, the following: extract from the judgment of the trial Judge is quoted: "As regards their failureto tell the headman the next day, the explanation given by one of them—that they were not asked-seems to me not inadequate. Most primitive African. women, in my experience, are almost cow-like in their submissiveness to circumstances in their lack of initiative. And in the present case it is almost certain that there was no attempt whatever by the village headman (one of the most. unintelligent and inept of his class that I have yet met) to conduct any investigation as we understand the term. He could not even make up his mind to go and fetch the accused from his house for several hours—he spent that time. as he says himself, either sitting down beside the body and chatting and wondering why the accused was not coming. Moreover, as everybody with experience of these matters knows, they are very much a men's affair and women are not encouraged to poke their noses in. So it is not any matter of wonder or surprise to hear that these women did not take any active steps to tell what they knew until they were called in to Shamwa Boma some two or three weeks later". There was no suggestion that the two women witnesses ever denied knowing anything: of the murder, or told any story different to that which they told at the preliminary inquiry and repeated at the trial and maintained unshaken undercross-examination.

The appellant was convicted and sentenced to death.

On appeal.

Held (28-4-48) (1) That the evidence of a wife by native law and custom of a statement made to her by her husband incriminating himself is admissible.

R. v. Robin (1929-30) 12 K. L. R. 134 followed.

And in any event, when such a statement is made in public in the presence of other persons it is not in the nature of a communication purely between spouses, and is not privileged under section 122, Indian Evidence Act.

(2) That failure on the part of witnesses as to an extra-judicial confession to raise an alarm or volunteer information until after a period of days does not necessarily<br>detract from their credibility. After clearly directing his mind to the need for caution in considering such evidence and after giving cogent reasons, a trial Judge may justifiably come to the conclusion that there are adequate reasons for the delay.

Appeal dismissed.

Appellant absent, unrepresented.

Hunter, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—This is an appeal from a judgment of the High Court of Tanganyika Territory whereby the appellant was convicted of murder and sentenced to death. Two points have been raised by the appellant in his memorandum of appeal, first, that a certain statement made by the appellant by one of the wives of the appellant according to native law and custom was privileged under section 122, Indian Evidence Act, and should not have been admitted. At the trial the same objection was raised by the appellant's advocate when learned Crown Counsel (Sir James Henry) replied by citing a case reported on page 134 Kenya L. R. and by adding "In any event this was not a statement of the kind that is privileged under section 122. Here the statement was made in public in the presence of other persons and was not in the nature of a communication purely between spouses". On respective submissions the learned trial Judge ruled that the evidence was admissible, and we consider that he rightly so held. The only other ground of appeal is that the learned trial Judge erred in accepting the evidence of witnesses as to an extra judicial confession. The learned trial Judge realized the need for caution in approaching a consideration of such evidence; but, after clearly directing his mind to this aspect and after giving cogent reasons on page 5 and 6 of the typed copy of his judgment he came to the conclusion that there were adequate reasons for the delay by certain women in making statements and for certain women failing to raise an alarm. In the result he was satisfied that these women were telling the truth. It is impossible for us to say that he erred in the conclusions which he reached.

The appeal is dismissed.