Rex v Surumbu and Others (Criminal Appeals Nos. 20, 21, 22 and 23 of 1940) [1940] EACA 15 (1 January 1940)

# COURT OF APPEAL FOR EASTERN AFRICA

### Before Sir Joseph Sheridan, C. J. (Kenya), Webb, C. J. (Tanganyika) and FRANCIS, J. (Uganda)

#### REX, Respondent

ν.

## (1) SURUMBU s/o SINGANA, (2) DARUBU s/o HOMURI, (3) GISAT s/o SARIA, (4) GIDAHERSA s/o KWALAIDA, *Appellants*

### Criminal Appeals Nos. 20, 21, 22 and 23 of 1940

### (Appeal from decision of H. M. High Court of Tanganyika)

- Criminal Procedure-Evidence-Confession made to District Officer-Whether confession taken by the District Officer in his capacity as an officer in charge of police investigation of a crime or in his magisterial capacity—Indian Evidence Act, section 25—Tanganyika Police Ordinance, 1937—Observations on the necessity of corroboration of a confession of a co-accused which implicates others in so far as the confession is used against others. The necessary facts appear from the judgment. - Held (10-5-40).—That a District Officer in charge of police must be careful to distinguish his functions so as to make it plain when he records the confessions of persons in police custody that he is not himself then taking part in the investigation of an offence. In case of doubt as to the capacity in which the District Officer acted the accused is entitled to be given the benefit of that doubt.

Macken for the Appellants.

McKisack for the Crown.

JUDGMENT (delivered by WEBB, C. J.). - In our opinion the convictions of the appellants Surumba and Darubu clearly cannot stand. The only evidence against them is contained in the confessions of the other two appellants and in their identification by the witnesses Mandi and Madale.

Assuming that the confessions were otherwise unexceptionable, it is well settled that while a confession made by one of several co-accused affecting himself and some other of such persons may be taken into consideration as against such other person (Indian Evidence Act, section 30) yet "the weakness of the guarantee afforded by self-implication and the dangerous and exceptional character of the evidence require that this section should be construed very strictly," (Woodroffe & Ameer Ali, 8th Ed. 291) and the use of the words "may be taken into consideration" 'is significant and shows that under this section the Court can only treat a confession as lending assurance to other evidence against co-accused' (ib. 297),

When one comes to examine the other evidence against these two appellants it appears to be of the flimsiest description. The two witnesses purported to identify them as being members of a party of four Mangati whom they saw at about 8 a.m. chasing a Mbulu on the road from Kiru to Babati. Both agree that the Mangati were running in the bushes and long grass at the side of the road, and that when they saw the two witnesses they turned away, at a distance, according to one witness, of 39 paces or, according to the other, of 60 paces. Mr. Gowan says that these witnesses told him that they had seen not four but six Barabaig, that they did not describe them, but said that "they presumed that they were Barabaig". And Madale said in his evidence, "I recognized them as Mangatis; I understand the people were like the accused, who are Mangatis, that is why I say the accused are the persons. When I look at the faces of the accused I know they are Mangatis". All this suggests that the witness was really identifying the tribe rather than the individuals, even though he went on to say, as witnesses of his class often do, "I know that these were the people—theirs are the faces I saw that day". In such circumstances a properly conducted identification parade was essential, but instead all that was done was that the two witnesses were brought to Mbulu where they were shown the four Mangati who had been arrested and invited to identify them.

In the absence of any other evidence implicating these two appellants it is impossible to regard an identification conducted in so slipshod a fashion as sufficient to corroborate the evidence afforded by the confessions.

As against the other two appellants, Gisat and Gidahersa, there was the evidence of their own confessions made to the District Officer, Mr. Russell, on the 14th October, nineteen days after the murder. Objection was taken to their admissibility on the grounds, firstly that Mr. Russell should be deemed to have been a Police Officer within the meaning of section 25 of the Indian Evidence Act by virtue of the provisions of section 7(3) of the Tanganyika Police Ordinance (Ordinance 27/1937) and, secondly that they were not voluntary. The learned Acting Judge ruled against the appellants on both points.

The section of the Indian Evidence Act renders inadmissible a confession made to a police officer, and a series of decisions, which have been uniformly followed by this Court in cases coming from territories in which the Act is applied, has established that the words police officer are not to be strictly confined to members of the regular Police Forces, and that a District Officer who has charge of the Police in his district may be deemed to be a police officer if he appears to have been acting as such on the occasion in question.

It is therefore necessary to examine the part taken by Mr. Russell. It appears from the evidence that he was on tour when he met the two appellants under arrest. Having discovered why they had been arrested he directed one of the Police who had them in custody to bring them to him one by one, and he then asked each of them in turn if he wished to say anything, or, if he could give him any information, or, if they wished to tell him about the murder and what had happened. (These are the different versions of what he directed the interpreter to say given by Mr. Russell himself.) He says also that he told the interpreter to tell them that he was a District Officer (Bwana shauri). According to the interpreter, Mr. Russell told him to tell the appellants: "I am investigating this matter. I have nothing to do with it. When I have finished I will send it to the bwana Judge," and the interpreter is positive that he did not tell them that Mr. Russell was a magistrate, nor does he appear to have been asked by Mr. Russell to do so.

It is true that Mr. Russell says that "Mr. Gowan and the Native Authorities had the investigations in hand" but the evidence to which we have referred seems to us to show that it was as investigating officer rather than as magistrate that Mr. Russell was acting on this occasion, for it is no part of the duties of a magistrate to call suspects before him and ask them to account for their movements, while, on the other hand, this is just what a police officer investigating a crime would naturally do. Even if it be considered that the effect of the evidence is to leave it doubtful in which capacity Mr. Russell was acting the appellants are entitled to be given the benefit of that doubt.

We are therefore of the opinion that the learned acting Judge was wrong in holding that the confessions of these two appellants were made to Mr. Russell as a magistrate and not as a police officer. At the same time we desire to make it plain that we are far from saying that because in certain districts the District Officer is also in charge of the Police he is only to be regarded as a magistrate, for the purposes of the Indian Evidence Act, when actually sitting in court, and that therefore he is incapable of receiving an extra-judicial confession in any circumstances without its being rendered inadmissible by section 25. But, the law being what it is, he must be careful to distinguish his functions so as to make it plain, when he records the confession of a person in police custody, that he is not himself then taking part in the investigation of the offence.

On the second ground, having regard to the evidence of these appellants themselves and to the provisions of section 29 of the Indian Evidence Act, we are of opinion that the ruling of the learned Acting Judge was correct, but on the first ground we hold that the confessions were inadmissible in evidence.

In the result therefore the appeals must be allowed and the convictions of the four appellants quashed.