Rex v Mwinyimviale and Another (Criminal Appeals 175 and 176 of 1934.) [1935] EACA 70 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

# Before SIR JOSEPH SHERIDAN, P., ABRAHAMS, C. J. (Tanganyika) and Law. C. J. (Zanzibar).

### REX, Respondent (Original Prosecutor)

# MWINYIBEGU s/o MWINYIMVIALE and SALEHE s/o MWINYIMKUU, Appellants (Original Accused).

Criminal Appeals 175 and 176 of 1934.

Dying declarations—danger of relying on inferences contained in.

Held (15-2-35).—That, even assuming the sincerity of the deceased, the Court would not be justified in accepting what appeared to be deceased's inference that appellant (Mwinyibegu) seized him to enable another person to stab him.

The facts appear from the Judgment.

Wallace, Crown Counsel (Kenya), for Crown.

Appellant absent and unrepresented.

Wallace.-Supported the conviction as deceased persisted in his version of what took place and repeated this declaration on five different occasions.

Ω.

JUDGMENT.—The appellants Mwinyibegu s/o Mwinyimviale and Salehe s/o Mwinyimkuu were convicted of murder. The deceased had been directed by the local chief to collect poll tax from Salehe and it was not disputed that Salehe not having the money was seized by the deceased who proposed to conduct him to the chief and departed with him for that purpose after some resistance. It was proved that about half-an-hour or so later the deceased came alone to a hut stabbed in several places and said that Salehe and Mwinyibegu had caused his injuries. Two days later he died from his wounds, and in the interval he denounced the appellants on four other occasions, but the only details he gave of the affair were that on the road with Salehe they met Mwinvibegu who caught hold of him while Salehe struck him five times with a knife. This final declaration was made to a Magistrate and there is no reason to believe that the deceased was not in full possession of his faculties on any of the occasions when he accused the appellants. Salehe was not present on any of these occasions and though Mwinyibegu was present when the declaration was made to the Magistrate, it does not appear in evidence that he was invited to question the deceased. It should also be observed that at no time was the deceased questioned beyond being asked who had injured him.

To deal first with the case of Mwinyibegu, there is admittedly no evidence against him other than these declarations of the deceased person. The learned Acting Judge say that he sees no reason to doubt the truth of them. In Rex v. Ramzani bin Mirandu, E. A. Court of Appeal, L. R. Vol. 1, p. 107, this Court in considering the value that ought to have been attached to a particular dying declaration observed that "as this is not a matter of credibility of a witness testifying at the trial we are in as good a position as the learned Judge to estimate the value of the statement". We are in an exactly similar position here, and though we are not prepared to rule that in no circumstances can a conviction proceed upon evidence consisting of a dying declaration only we are entitled to an independent opinion as to whether or not a conviction based solely upon the dying declaration in this case can be upheld.

Concerning dying declarations in general the following passage in Field on Evidence, seventh edition, is most instructive:

"The caution with which this kind of testimony should be received has often been commented upon. The test of cross-examination may be wholly wanted; and ... the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed ... the deceased may have stated his inferences from facts concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars from not having his attention called to them".

Now can we from the very scanty statements of the deceased exclude the reasonable possibility of falsehood or inaccuracy? The learned Acting Judge says that apart from the statement to the Magistrate there are the other statements of the deceased for consideration and that he can see no reason for doubting thier truth. But though consistency of reiterated statements is undoubtedly some ground generally speaking, for thinking that the person making them believes in their truth. it is no guarantee of accuracy. A very telling illustration of the unreliability of dying declarations is given in Russell on Crimes, 8th Edition, Vol. 2, p. 1932, footnote $(q)$ . It merits quotation in full.

"A striking instance of the danger of trusting to statements made after a mortal wound has been inflicted occurred in R. v. Macarthy. Gloucester Sum. Ass., 1842. The prisoner was indicted for murder, and the deceased had been stabbed by the prisoner whilst he was pursuing him in order to give him into custody for an assault and the deceased expressly stated that the prisoner had knocked him down, but two companions of the deceased, who were present during the whole time, distinctly proved that the deceased was not knocked down at all."

In the case now before us, we are of opinion that, even assuming the sincerity of the deceased, we would not be justified in accepting what appears to be his inference that Mwinyibegu seized him to enable Salehe to stab him. If Mwinyibegu was in ambush, which is not even asserted, it does not follow that he intended to do anything more by seizing the deceased than to enable Salehe to free himself, and if he met Salehe and his captor by chance only the inference of a murderous intention is even weaker. We therefore allow the appeal of Mwinyibegu, quash the conviction and acquit him.

The case against Salehe, however, rests upon evidence additional to the dying statements we have just considered. It was not disputed that Salehe was in the custody of the deceased and he admits that he broke away from him. There was a motive to use violence to effect his escape, he was the last person seen with deceased and the latter was stabbed within a short time after the two had set out together. A knife identified as Salehe's property was found hidden in the grass close to where the stabbing must have taken place, and its presence there is not satisfactorily explained by him. He admits he remained in the bush for three days after his escape, and he was arrested six-days after the stabbing in Dar es-Salaam, fifteen miles from his house. The learned Acting Judge refused to accept his explanation of his flight and concealment and we think he was correct in so doing. There is no suggestion that the deceased met his death by any other means, and we are of opinion that there is ample evidence to support the dying statements. We therefore dismiss Salehe's application.