Rex v Petro and Another (Cr.A. 98/1936.) [1936] EACA 110 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); DALTON, C. J. and HEARNE and BATES, J. J. (Tanganvika).

REX, Respondent (Original Prosecutor)

## MABARA BIN PETRO alias ALBERTO BIN PETRO Appellant (Original Accused).

## Cr. A. 98/1936.

## Evidence—Alleged extra-judicial confession to magistrate—Indian Evidence Act, section 80.

Held (20-10-36).-That by reason of the law of the Tanganyika Territory containing nothing corresponding to section 164 of the Indian Solve containing norming corresponding to section 104 of the Indian<br>Code of Criminal Procedure, the words "taken in accordance<br>with law", in section 80 of the Indian Evidence Act, are inap-<br>plicable to the case of an alleg photosis to the cuts of a judicial proceeding: the quantum of evidence<br>required to prove such a confession is as full as it would be under<br>English law. Rex v. Chuma arap Kimenja, $(15 \text{ K. L. R. } 102)$ English law.<br>referred to.

Reece, for appellant.

Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by BATES, J.).—This is an appeal from a conviction made by the High Court of Tanganyika upon an information charging the appellant with the murder of one Maguia bin Kisisi.

It has been heard by a Bench of four Judges pursuant to an order of this Court made the 3rd October. It is clear to us that, as Crown Counsel has acknowledged, the conviction must be quashed and the appellant acquitted by reason of the fact that the Crown at the trial did not call as a witness one Makenya bin Sembalwa, who acted as an interpreter for the first witness, Mr. Macpherson, in the matter of the latter's recording what is set out in Exh. "1" which the Crown relied on as being the record of a confession, alleged to have been made to Mr. Macpherson before the case became the subject of a preliminary inquiry under Part VII of the Criminal Procedure Code. This alleged confession has not been proved by the Crown to be anything more than a record of something which Mr. Macpherson stated he was told by that interpreter had been said by the accused in a native language unknown to Mr. Macpherson. In recording what he did Mr. Macpherson said, in effect, that he was acting as a magistrate in relation to section 27 of the Indian Evidence Act (as to which we think proper not to express any opinion) but, even so, the consideration was overlooked at the trial that, by reason of

the present law of the Tanganyika Territory containing nothing corresponding to section 164 of the Indian Code of Criminal Procedure, the quantum of evidence required to prove the alleged confession remained as full as it would be under English law. Nothing in the nature of any presumption against the accused here arose such as would or might have arisen as a rebuttable. presumption under section 80 of the Indian Evidence Act, if this had been the case of an alleged confession contained in the record of an accused's statement taken and recorded in accordance with section 211 of the Criminal Procedure Code and put in evidence under section 266 of the Code, or contained in the deposition (to be produced from proper custody) of an accused, who had given evidence at the preliminary inquiry. The words, "taken in accordance with law", in section 80 of the Indian Evidence Act, are inapplicable to the case of an alleged confession recorded as was the case outside of a judicial proceeding. The law of the Tanganyika Territory is, so far as this concerned, the same as the law of Kenya as to which there are some observations of general guidance by this Court, in Rex v. Chuma Arap Kimenja, $(15^{\circ}$ K. LR. 102).

Holding as we do that what Mr. Macpherson recorded is mere heresay, we must hold that there is no evidence to support the conviction. We quash the conviction, acquit the appellant and -order his release from custody.