Rex v Ngwililwa (Cr. App. No. 101/1935.) [1936] EACA 25 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), ABRAHAMS, C. J. (Tanganyika), and FRETZ, Ag. C. J. (Zanzibar).

## REX, Respondent (Original Prosecutor) $\mathcal{L}$

## MWISOLI S/O NGWILILWA, Appellant (Original Accused). Cr. App. No. 101/1935.

Evidence—Accomplice—Corroboration—Criminal Procedure— Witness for accused not called for defence but called by Court-Rebutting evidence called by Court-Cr. Pro. Code (Tanganyika) Sec. 145.

The principal evidence against the appellant, who was charged with murder, was that of a woman, Lipekesi, wife of the deceased, to the effect that the appellant told her that he would come at night to kill her husband and that when he came she knew him. The trial judge found her to have been an accomplice but held that her evidence had been corroborated (1) by ani admission made by the accused to one Lihera: "Am I the one who has killed a man? You must say I slept with you on the day a man died"; (2) by the fact that the appellant left his home after the occurrence: (3) by the fact that he absented himself from the funeral ceremonies of the deceased, who was a relation; (4) by the fact that the appellant's wife denied that he had slept with her on the night of the murder. At the trial counsel for the appellant did not call the appellant's wife, who had been called as a defence witness before the committing magistrate. and thereupon she was called by the Court, under Sec. 145 of the Cr. Pro. Code, and said that the appellant had slept with her, alleging that she had been told to deny this by one Kiwengi. The Court then called Kiwengi (under section 145) to rebut this evidence.

$Held$ (14-11-35).—

1. That the admission of the appellant, though, if believed, it might prove his guilt did not corroborate the evidence of Lipekesi in any particular:

2. That the other matters relied upon by the trial judge did not amount to corroboration:

3. That the trial judge was wrong in calling a defence witness whom the defence had elected not to call.

Appellant absent, unrepresented.

Vaughan (Ag. A. G., Zanibar) for the respondent.

JUDGMENT (delivered by ABRAHAMS, $C. J.$ ): In this case the trial magistrate states that the case mainly rests upon the evidence of a woman Lipekesi. This woman was the wife of the murdered man and the sister-in-law of the accused. On her own admissions she was an accomplice and was rightly regarded so by the magistrate.

$\overline{1}$

The magistrate emphasizes the necessity for the corroboration of Lipekesi but failed to appreciate the further necessity of the proof of her credibility before proceeding to consider the existence of corroborative evidence. Corroboration it must be remembered removes the taint of complicity from an otherwise credible witness so that the uncorroborated portions of the evidence can be deemed acceptable.

The nature of one piece of corroborative evidence is such that if it can be believed the evidence of Lipekesi becomes unnecessary. The evidence is that of one Linera who testified that when he was sent by authority to call the accused back to his home the latter said "You have been told to find me; am I the one who has killed a man?" and later on he said "I know the case. You, Lihera must say I slept with you and I will give you ten shillings. You must say that I slept with you on<br>the day a man died." The witness went on to say that accused mentioned no name but he said he knew he had killed a man.

Now in spite of the avoidance of the name of the murdered man, we think, taking the conversation as a whole, the hint was very broad that the deceased was actually meant, and that if Lihera is to be believed the accused confessed to the murder. The alleged confession is not a corroboration of some detail of Lipekesi's evidence leading to acceptance of the main fact that accused killed the deceased, but it testifies to the main fact itself and therefore if true renders, as we have said, Lipekesi's evidence unnecessary. Did the magistrate himself believe Lihera? He points out quite properly that it is one man's oath against another—Lihera against the accused. He also points out that no convincing reason has been given for the invention of such evidence. There is the further point which occurs to us that if Lihera had wished to incriminate the accused he would have done so in a more thoroughgoing fashion. The magistrate himself goes no further in deciding this question than to say that the confession is probably true, as there are no apparent reasons for its invention and every reason for its denial. There is no other evidence which leads to an inference that the confession was made and we do not think an expression of belief in the mere probability of its truth is sufficient. Nor would a motive for denial by the accused be a determining factor in rejecting his evidence. It begs the question of his guilt. We are inclined to think that had the magistrate compelled himself to decide categorically whether he fully accepted the evidence of Lihera he would have hesitated in so doing, but as he regarded this evidence in the light of corroboration of Lipekesi and found other corroborative evidence he may have contented himself

with the qualified expression that he used. We think we are justified in saying that we too hesitate to hold that the confession is proved.

The magistrate also finds other evidence corroborative of Lipekesi. Examining this in detail, first there is the absence of the accused from his home for two nights before being sent for in connection with the death of the deceased. This may be suspicious but it is not corroborative of any part of Lipekesi's, evidence. Next there is the absence of the accused from the funeral ceremonies of the deceased. The same criticism applies. There is then the contradiction of the wife of accused as to his having slept with her on the night in question. How such contradiction can be regarded as corroboration of anything at all, we fail to understand. And here we must comment on the action of the magistrate in himself calling this witness. She had been called for the defence in the lower Court and had denied that the accused had slept with her the night of the murder. Naturally counsel for the defence announced that he did not propose to call the woman. But the magistrate did so for reasons which he did not record. The woman said that accused did sleep with her that night and that her evidence to. the contrary in the Court below was due to the coercion of one The magistrate then called Kiwengi to rebut the Kiwengi. woman and subsequently treated the contradiction as incriminatory of accused. We must strongly disapprove of the action of the magistrate in thus interfering with the conduct of the defence, and it would also appear that the magistrate does not appreciate what amounts to corroboration of an accomplice's evidence.

In view of the fact that we cannot conclusively accept Lihera's evidence, is there any evidence upon which we can affirm the conviction? Excluding Lipekesi's evidence and Lihera's evidence there is nothing left but a few suspicious circumstances of varying strength none of which raises a presumption of guilt, and the accumulated effect of which does not lead to an irresistible inference that the accused committed the murder.

We allow the appeal and acquit the accused.