Rex v Ochulura (Cr.A. 168/1936.) [1936] EACA 120 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); BATES and KNIGHT-BRUCE, JJ. (both of Tanganyika).

## REX, Respondent (Original Prosecutor)

## ARYATO D/O OCHULURA, Appellant (Original Accused).

Cr. A. 168/1936.

Evidence—Corroboration of retracted confession—Misdirection.

Held (12-11-36).-That, the trial judge misdirected himself and the assessors in expressing the opinion that a retracted confession was corroborated merely by other confessions, which being also retracted, themselves require corroboration.

The facts appear from the judgment.

Appellant, absent, unrepresented.

Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The appellant in this case, it is undisputed, had been severely assaulted by her husband, the deceased. The doctor (p. 5 of the record) states, "I also saw accused and examined her same day; she had three bruises one on left shoulder and two on back. She had scratches in four places on front of her throat, they were simple injuries about three days old. Body had been dead about some time". The appellant was convicted on murdering her husband by pouring boiling water over him and the question is whether it has been proved by sufficient evidence that she did so during the course of the attack upon her or later as the Crown suggested, when the deceased was asleeep. The appellant in her memorandum of appeal states that she committed the act in order to save her life in the course of the struggle and this is what she said in her evidence before the trial Court. Evidence of her having confessed to the police that she had poured the boiling water over the deceased when he was asleep was given for the prosecution. Two witnesses Zedekiya and Musa said that the appellant had admitted to them that she had poured the boiling water over the deceased when he was asleep. Zedekiya in crossexamination stated that he had given evidence to the same effect before the magistrate. On turning to the deposition of this witness which counsel for the defence should have put in evidence to contradict the witness before the High Court, there is no reference to the act complained of having been committed while the deceased was asleep. As this Court has held on more than one occasion, the appellant who is a native must not be prejudiced by this omission. But there is another and more serious ground

for not convicting on the evidence of the alleged confessions and that is they having been retracted there must be corroborative. evidence before a conviction can be had. The learned Judge held. that there was corroboration expressing the opinion that the confession to the police was corroborated by the confession to the two But inasmuch as all three confessions must be rewitnesses. garded as retracted no one of them can be accepted as corroborative of the others. And there is nothing in any of these statements themselves to supply corroborative evidence; they are merely statements of admission that the appellant did a particular act at a particular time—nothing by which to check the accuracy of the alleged admissions. The position, therefore, is that the only evidence we can consider is that given by the woman herself. In that evidence she states that she poured the boiling water on. her husband, when he was attacking her in the manner, which had been indicated by the doctor's evidence of the wounds. That: being the only evidence, we are of the opinion that it contains. the ingredients of a case of self-defence. The learned Judge said. that he found it impossible that the woman should have escaped entirely the effects of the boiling had her story been true. This was conjecture, and we do not think, that the inference should. have been drawn in the absence of evidence that her suffering from the effects of the boiling water was a necessary consequence. There was in this case misdirection on the issue of corroboration, as we have pointed out, the learned Judge having found something to be corrobation which was not, inasmuch as it needed. corroboration itself. The appeal is allowed for the reasons we have given and the appellant acquitted and ordered to be released.