Rex v Mulindwa (Criminal Appeal No. 143 of 1949) [1949] EACA 41 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and SIR JOHN GRAY, C. J. (Zanzibar)

REX. Respondent (Original Prosecutor)

ERIEZA MULINDWA, Appellant (Original Accused)

Criminal Appeal No. 143 of 1949

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

Murder-Confession-Section 24, Uganda Evidence Ordinance-Effect of Judges' Rules—Definition of voluntary confession.

Deceased died from the effects of arsenical poisoning. The appellant first stated to a sub-inspector that he had no knowledge of it. Later he told the inspector "voluntarily" that he administered the drug by mistake. Two days later the appellant was brought before Mr. Walker for being charged and cautioned. Until then Mr. Walker had nothing to do with the investigation. Mr. Walker testified he administered the caution three or four times, though the constable interpreter stated he said to the appellant "Do you want to make a statement or not?" In his statement to Mr. Walker appellant confessed to poisoning the water to be used for the deceased's cooking. In appeal the appellant stated he had not made any statement to Mr. Walker.

*Held* $(29-7-49)$ —(1) The confession to the sub-Inspector was inadmissible as he was below the rank of Assistant Inspector.

(2) If there is an allegation or reason to believe that a confession is made in circumstances which show it not to have been made voluntarily the Court should inquire fully into the circumstances and ascertain the exact words used, and for that purpose the Court should hear prosecution and such defence witnesses (including accused) as accused may wish to call.

(3) The bare allegation that an accused person spoke "voluntarily" is not enough.

(4) The words "do you want to make a statement" do not amount to a proper caution.

(5) The absence of a caution does not of itself make the statement inadmissible (see R. v. Voisin (1918), 13 Cr. App. R. 89).

(6) "Not voluntary" means the statement has been obtained by fear of prejudice<br>or hope of advantage exercised or held out by a person in authority.

(7) The statement to Mr. Walker cannot be held to have been made whilst the mind of the appellant was still operating under any improper inducement which may have been held out by the sub-Inspector.

(8) The denial by the appellant that he ever made a statement to Mr. Walker is not a retraction and does not require corroboration (see R. v. Labasha (1936), 3 E. A. C. A. 48).

Cases referred to: R. v. Njarura (1944), 11 E. A. C. A. 59; R. v. Voisin'(1918), 13 Cr. App. R. 89; R. v. Labasha (1936), 3 E. A. C. A. 48, and Tulley v. Corrie (1867), 10 Cox, $C. C. 584.$

Appellant absent, unrepresented.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by Sir John Gray, C. J.).—The appellant has been convicted of the murder of a woman named Nasrina Namakula by poisoning.

The evidence clearly shows that the deceased died of arsenical poisoning after partaking of food in which a quantity of arsenic was discovered.

The evidence shows that the appellant had had a quarrel with the deceased. whom, rightly or wrongly, he believed had stolen certain of his property. He had been living in the deceased's house and owing to this quarrel decided to leave. He came back to the house in question at 3 p.m. and began to pack up his

property. The deceased cooked her food between 4 and 5 p.m. She began to eat the food at about 6 p.m. and complained that there was something wrong with it. After a time she fell down and began to vomit and had diarrhea: The appellant was still at the house when this happened. According to a witness named Asumani Mutesa, who was also there when this happened, the appellant "said nothing; did nothing". At the request of the deceased this witness went to report to the chief, who had inquired into the previous dispute between the appellant and the deceased and who on receiving the report instructed Asumani to detain the accused. Asumani returned and on the way met the accused going away. The witness subsequently went to fetch an ambulance, in which the deceased was conveyed to hospital, where she died at 7 a.m. on the following morning (13th March).

On 13th March the appellant's room was searched in his absence and a packet containing arsenic was found in a crevice in the wall.

The appellant was arrested some time the same day and was brought in front of a sub-inspector named Korde. This sub-inspector's evidence contains the following statements: —

"On the 13th (March) I first saw the accused; told him I was investigating the case and drove with him to the deceased's house. He told me he was responsible for this. I told him what he had to say; he would tell the European police officer the next day $\ldots$ ."

"I did not tell him it would be nice for him if he gave me information."

"At first the accused told me he had no knowledge of it. As we returned from the town he told me voluntarily that he was the one who administered drug in the matoka."

With regard to this evidence it should in the first place be noted that a confession to a police officer below the rank of assistant inspector is inadmissible by reason of section 24 of the Uganda Evidence Ordinance. In the second place, if it is alleged that a confession has been made in circumstances which make it admissible in evidence, and there is an allegation or reason to believe that such confession was made in circumstances which show it not to have been voluntary the Court should firstly inquire fully into the circumstances in which the confession is alleged to have been made and secondly should ascertain the exact words which the accused is alleged to have used and which are alleged to amount to a confession. As said by this Court in Rex v. Njarura (1944), 11 E. A. C. A. 59, for the purpose of ascertaining the circumstances in which a confession is alleged to have been made the Court should hear not only the prosecution witnesses, but also any witnesses whom the defence may wish to call (including the accused himself). In this connexion it should be pointed out that the bare allegation by a police officer that an accused person spoke "voluntarily" is not enough. It may often be a form of very special pleading. At its best it is only an expression of opinion. It is for the Court, and not for the witness, to decide whether a statement was made in circumstances which show it to have been made voluntarily and the Court can only reach such a decision when it has before it in full detail the circumstances in which the statement is alleged to have been made.

Similar remarks apply with respect to the words in which a confession is alleged to have been made. It is for the Court, and not for the witness, to decide whether the words used by an accused person amount to a confession. Obviously, the Court can only reach such a decision when it knows what the words actually were.

Here, Sub-Inspector Kordé deposed that "at first the accused told me he had no knowledge of it", but later "he told me voluntarily that he was the one who administered the drug". In the circumstances we feel that there is grave reason to doubt whether the later statement, which is alleged to have been subsequently made was in fact voluntary. When a witness says "he told me voluntarily" it arouses a suspicion that the witness does protest too much.

As already said, the confession to this witness is inadmissible by reason of section 24 of the Uganda Evidence Ordinance, but the question arises as to whether the subsequent confession to Mr. Walker is inadmissible by reason of<br>any improper inducement previously made by Sub-Inspector Korde operating upon the mind of the appellant at the time that he made his statement to Mr. Walker.

It is very clear from his evidence that Mr. Walker took great pains to endeavour to satisfy himself that the appellant was speaking of his own free will. He told the Court that he administered the usual caution three or four times because at first the appellant did not seem to understand the charge. He had, however, to employ a constable as an interpreter. The constable in question does not appear to have been experienced at that date in acting as interpreter to a European police officer when formally charging and cautioning an accused person. In cross-examination the constable admitted that all that he said to the appellant was: "Do you want to make a statement or not?" That of course did not amount to a proper form of caution as set out in the Judges' Rules.

It has, however, to be remembered that the Judges' Rules have not the force of law. As A. T. Lawrence, J., said in Rex v. Voisin (1918), 13 Cr. App. R. 89, they are administrative directions issued in England by the Home Secretary after consultation with the Judges for the guidance of police officers, "the observance of which the police authorities should enforce on their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from police officers contrary to spirit of these rules may be rejected as evidence by the Judge presiding at the trial". But as the same learned Judge said in the same appeal: "It cannot be said that the absence of a caution makes the statement inadmissible. It may tend to show that the person was not on his guard against the importance of what he was saying or its bearing on some charge of which he has not been informed... It may be, and often is, a ground for the Judge in his discretion to exclude the evidence, but he should only do so if he thinks that the statement was not a voluntary one in the sense above mentioned, or was an unguarded answer made in circumstances that rendered it unreliable, or unfair, for some reason, to be allowed in evidence against the prisoner". Reference to an earlier passage in the same judgment shows that the expression "not voluntary in the sense above mentioned" means in the sense that it has been obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority.

In the present case, excluding from consideration for the moment what the appellant is alleged to have said to Sub-Inspector Korde, the evidence is that neither Mr. Walker nor his interpreter had had anything to do with the investigation of the case until the appellant was brought before the former for the purpose of being formally charged and cautioned. Mr. Walker had 'the charge explained to the appellant three or four times and the interpreter asked the appellant: "Do you want to make a statement or not?" The appellant himself has alleged that what he said was misinterpreted or misrecorded. He has not alleged that any inducement, threat or promise of an improper nature was held out to him by Mr. Walker or the interpreter. Though what the interpreter said fell very much short of what is prescribed in the Judges' Rules, he did give the appellant to understand that it was up to him whether he made a statement or not. In the circumstances it cannot be held that what the appellant subsequently said was not voluntary in the sense mentioned or was an unguarded answer of the nature mentioned by A. T. Lawrence, J., in Rex v. Voisin.

With regard to the question whether any improper inducement which may have been held out by Korde was still operating upon the mind of the appellant when he made his statement to Mr. Walker, the admissions which the appellant was alleged to have made to Korde were made on 13th March and the statement to Mr. Walker was made on 15th March. We therefore agree with the learned trial Judge that the later statement cannot be held to have been made whilst the mind of the appellant was still operating under any improper inducement which may have been held out by Sub-Inspector Korde.

In his written arguments appellant's advocate has urged that the involuntary nature of the confession is disclosed by the fact that the appellant has made a statement therein which the prosecution evidence shows to have been demonstrably untrue. In so doing, however, it is clear that the advocate has made a mistake. As reference to the appellant's statement shows, it was on 11th March at 7 p.m. and not 12th March at 7 p.m. that according to himself he got hold of the poison which he had hidden in the jungle, that is to say close on 24 hours before the deceased prepared the food which was found to contain the arsenic.

One other statement in the written argument also stands in need of correction. In a dying declaration to a police officer the deceased said: "I prepared matoka and at 4 p.m. I started cooking it at my house. Erieza" (i.e. the appellant) "put a kind of poison in it". But as his judgment shows, the learned trial Judge attached no evidential value to the last sentence in that statement. In his own words: "She does not say she saw him do so, and this is probably only founded on suspicion".

The appellant has never alleged that his statement to Mr. Walker was obtained from him by means of improper inducement. What he says is that he never made any statement at all and that the document bearing his signature has been concocted by the police. This is a denial that he ever made a confession, and not a retraction of a confession which the maker admits to having made. Therefore, as said in Rex v. Labasha (1936) 3 E. A. C. A. 48, it requires no corroboration. But, as the learned trial Judge says, there is ample corroboration thereof in the evidence which has been referred to at the beginning of this judgment.

One other matter remains to be considered, namely whether the evidence shows that the appellant put the poison in the deceased's water of malice aforethought as defined in section 196 of the Penal Code. In his statement to Mr. Walker the appellant said: $-$

"I thought of a scheme whereby I could have my revenge. The only one I could think of was to give her poison. That same day at about 7 p.m. I got hold of the poison, which I had hidden in the jungle; and when the deceased left the room I put the poison into the water which was to be used for cooking. The person who had given me the poison told me that when this poison is given to anyone they do not die but become ill. The person who gave me the poison was an Italian, when I was in the armv."

It is distinctly arguable that that statement does not amount to an admission that the maker intended or knew that he was likely to cause death or grievous bodily harm. None the less, in our opinion it discloses an intention amounting to malice aforethought as defined in section 196 of the Uganda Penal Code.

To put the construction upon the statement, which is most favourable to the appellant, at the very least he knew he was dealing with a noxious substance and he dealt with it in a manner which was intended to annoy the deceased. As sections 225 and 226 of the Penal Code show, "any person who unlawfully, and with intent to injure or annoy another, causes any poison or noxious thing to be administered to, or taken by, any person" is guilty of a felony. Such an act, when done with such an intent and without being followed by the consequences about to be mentioned, is a felony punishable with three years'<br>imprisonment under section 226. But if the act endangers the life or does some grievous harm to the intended victim, then it is a felony punishable under section 225 with 14 years' imprisonment. As explained by Cockburn, C. J., in Tulley v. Corrie (1867) 10 Cox C. C. 584, the difference between the two sections

is marked and intentional. The distinction is that, if the person administers the poison or noxious thing with intent to injure and annoy and "the consequences" prove to be more extensive than the intention" and the result is to endanger the life of, or cause grievous harm to, the victim, then the offence becomes the aggravated felony punishable under section 225. The necessary intention in both sections is the same, but in section 225 the offender is liable to enhanced punishment for the consequences of his act, whether or not he intended or knew that he was likely to cause such consequences.

Section 196 (c) of the Penal Code enacts that "malice aforethought shall be deemed to be established by evidence proving... an intent to commit a felony". It is clear to us that the offences, which are declared by sections 225 and 226 to be felonious, are felonies of the nature contemplated in section 196 (c). If a person deals with a thing, which he knows or has reason to believe $\frac{1}{2}$ to be poisonous or noxious, unlawfully and with the malicious intent, which sections 225 and 226 declare to be felonious, he is doing an act which is necessarily dangerous to life and it is immaterial whether or not he intended or knew himself to be likely to cause grievous harm. Just as in a case in which a person unlawfully causes the death of another by an act intended to commit an aggravated felony such as robbery or rape is guilty of murder, likewise a person who unlawfully causes the death of another by an act done with intent to commit the felonies described in sections 225 and 226 must be deemed to have done that act of malice aforethought and is therefore guilty of murder.

This appeal is accordingly dismissed.