Rex v Njeroge (Con. C. 275/1932.) [1932] EACA 15 (1 January 1932)

Before SIR JACOB BARTH, C. J. and GAMBLE, Acting J.

## REX

## $\boldsymbol{v}$ .

## NGANGA NJEROGE.

## Con. C. 275/1932.

- Evidence-Confession-Police officer-Statement of accused person to police officer while in custody—Admissibility— Penal Code, section 196A—Discharge of accused person when no case to answer. - $Held$ (10-6-32): --When, after the exclusion of inadmissible evidence, the admissible evidence is insufficient to prove the charge made against the accused the Magistrate should dismiss the case without calling upon the accused to enter upon his defence.

Doran, Acting Solicitor General, for Crown.

The accused was convicted of holding himself out as a witch doctor able to cause injury to another in property contra to section 2 of the Witchcraft Ordinance (No. 23 of 1925) and sentenced to twelve months hard labour.

The learned Magistrate said in his judgment: -

"The evidence adduced for the Crown is that of E. P. C. Griffith and that of one, Mutoro. Mutoro's evidence really is merely an account of what he overheard accused say to Mr. Griffith. Is the evidence of what accused said to Mr. Griffith admissible? I refer to the case of Rex v. Mohamed bin Omari, Vol. VI, E. A. L. R., p. 61. I refer to the words on page 62: 'The Act itself does not define what a confession is, but draws a distinction between an admission and a confession, leaving it to the Court to decide in each instance whether or no the evidence sought to be given is, in fact, evidence of a confession. In my view, the accused volunteered the statement in answer to a question 'Why are you on this farm?' That was all that Mr. Griffith asked him. I can scarcely believe that the reply of the accused to a question such as 'Why are you on this farm?' amounts to a confession. But even supposing it does, I have admitted the evidence. Assuming then that I should have refused to admit the evidence as to what the accused told the constable, I take it that, after having heard all the admissible evidence which the Crown were able to produce, I should have discharged the accused. (See section 196A, Criminal Procedure Code.) But I did not do that, and the accused made an answer to the charge (see section 197, Criminal Procedure Code); and that

answer, made to me, a Magistrate, in open Court cannot possibly be construed in any other way than as being an unqualified admission that he has committed the offence contemplated by section 2 of the Witchcraft Ordinance, 1925. The accused said: 'I gave him medicine to clear Mutoro off from the farm with.' This can only mean that he (accused), held himself out to be able to make medicine of such a nature as would cause such fear. annoyance or injury to Mutoro in his person or property as would compel Mutoro to leave this farm. It seems to me now that. whether or not prior to my arriving at the stage contemplated by section 197. Criminal Procedure Code, inadmissible evidence was wrongly admitted, and the accused wrongly called upon to answer the charge, i.e., put on his trial. I have no option but to regard his answer as a judicial confession, and to convict him accordingly."

The matter was argued by Doran, Acting Solicitor General, and the Order of the Court was delivered by Gamble, Acting J.

ORDER.—The case was set down for argument on two grounds: (1) the admissibility of the police officer's evidence and (2) whether the Magistrate should have called upon the accused to enter on his defence...

In Rex v. Javecharan, 19 B., p. 363, it is held 'a statement made to a police officer by an accused person, while in the custody of the police, if it is an admission of an incriminating circumstance cannot be used in evidence.' Again in Woodroffe's Law of Evidence, 8th Edition at p. 217: "a confession is a statement which it is proposed to prove against a person accused of an offence to establish that offence."

The evidence of E. P. C. Griffith as to what the accused said to him must be looked at as a whole, and when looked at as a whole amounts in my opinion to an admission of incriminating circumstances constituting a completed offence under the Witchcraft Ordinance.

Section 25 of the Evidence Act is very emphatic and admits of no qualification or limitation: being satisfied that what the accused said to the police officer was in effect a confession, it cannot be used in evidence.

As the accused's statement to E. P. C. Griffith is inadmissible in evidence a fortiori what Mutoro overheard the accused say to E. P. C. Griffith is inadmissible. When the evidence of these two witnesses is excluded from the record there remains no evidence at all implicating the accused.

The learned Acting Solictor General has quoted authorities for the proposition that when a Judge has refused to withdraw a case from the jury he is entitled to look at the case as a whole and consider the evidence given by the defence even though it incriminates the accused. The authorities he has cited would appear to show that there must be some slight evidence. against the accused to justify a refusal by the Judge to withdraw the case.

However, the procedure in this Colony is governed by section 196A of the Criminal Procedure Code. Under this section if it appears that a case is not made out against an accused person sufficiently to require him to enter upon his defence the Magistrate shall dismiss the case. In the case under review, when the imadmissible evidence is expunged, nothing is left and it would be impossible for the learned Magistrate to hold that a case had been made out justifying the accused to be called upon to defend.

The conviction is accordingly quashed.