Rex v Tibanyendela (Criminal Appeal No. 142 of 1948) [1948] EACA 36 (1 January 1948)

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

# REX, Respondent (Original Prosecutor)

#### v. WILBALD s/o TIBANYENDELA, Appellant (Original Accused)

## Criminal Appeal No. 142 of 1948

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

Criminal Law-Murder-Criminal Procedure-Evidence-Tanganyika Criminal Procedure Code, section 242-Failure to give three days' notice of trial-Irregularity that may be cured under section 346—Person originally committed for trial with appellant called as additional witness for prosecution -Section 273—Failure to serve notice of intention to call him on Defence— Not a case where evidence of witness only came to light on the day he was called—Evidence not of purely formal nature—Whether irregularity curable under section 346-Appellant not legally represented at trial-Discrepancy between evidence of a witness and deposition—Deposition considered by Court of Appeal in the interests of justice—Extra-judicial statements of coaccused exculpating themselves and implicating co-accused—Rejected by committing Magistrate under section 30 Indian Evidence Act—Misdirection— Improper use of word "confession".

The appellant was committed for trial on a charge of murder with two others, namely, Martin and Thomas, but the Crown filed an information against the appellant alone who was tried on a charge of murder in the High Court where he was not legally represented. At the trial Martin was called as a prosecution witness and there was nothing to show that the statutory notice of intention to call him was served on the appellant who was found guilty. All the facts appear from the judgment below which emphasises throughout the importance of carefully observing the prescribed procedure when an accused who is being tried on a capital charge is not represented by an advocate.

**Held** (16-8-48).—(1) (a) That where the notice of trial (as required by section 242, Tanganyika Criminal Procedure Code) is not served on an accused at least three days before the day specified for the trial and the accused has not waived his right to the full statutory period, the defect in service may be curable under section 346 (Tanganyika Criminal Procedure Code) provided that there has been no possibility of a failure of justice.

(b) Nevertheless, the Court can visualize cases—particularly those in which an accused is not legally represented—in which this omission might occasion a very serious failure of justice.

(c) That the provisions of the Code regarding notice of trial should in all cases be strictly adhered to unless expressly waived.

Regina v. Frost (1839), 9 C. and P. 129 quoted and applied; R. v. Luguda s/o Wage, 1 E. A. C. A. 148 followed.

(2) That since the witness Martin had been originally committed for trial with the appellant, failure to serve upon the latter the statutory notice of intention to call Martin as an additional prosecution witness at the trial, as required by section 273 (Tanganyika Criminal Procedure Code), was not an irregularity that could be cured by section 346 of the Code because evidence was far from being of a formal character and the omission may have occasioned a failure of justice as the appellant was not legally represented at his trial.

R. v. Yakobo Isairi Busigo, 12 E. A. C. A. 69 discussed and distinguished.

(3) That if the appellant had been legally represented at his trial the Court was of opinion that his advocate would have applied to have read the deposition of a certain witness revealing a most material discrepancy which the trial Judge might well have regarded as seriously impeaching the witness's verac R. v. Ziyaya, 3 E. A. C. A. 31 quoted and followed.

(4) (a) Extra-judicial statements by co-accused which exculpate themselves and implicate one or more of their co-accused are not inadmissible in evidence under section 30<sup>o</sup> of the Indian Evidence Act.

(b) That as the statements in this case were not confessions they could not be used against any persons inculpated thereby, but each of them could, and should, have been admitted in evidence as a statement exculpating the maker from the charge. The fact that an accused person has made a statement denying his guilt very soon after he has been charged with the offence may often be very relevant as showing the consistency of his conduct at that early date with the version of the facts as given by him at his trial and may in some cases be the last ounce which turns the scales in his favour.

Observations of the Court on the improper use of the word "confession"

When a person appears before a Magistrate to make an extra-judicial statement, the Magistrate should not record that he is satisfied the confession the person is about to make is a voluntary one. The Magistrate may not assume that the statement will amount to a confession since it may prove to be exculpatory in character. Such improper<br>use of the word "confession" indicates a confusion of thought in the mind of the Magistrate.

Appeal allowed.

#### Appellant absent, unrepresented.

# Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—The appellant was arrested along with one Martin Bin Rwebgora and one Thomas Kemala on a charge of murdering one Lugeiyamu s/o Kyaruzi. All three were brought before a Magistrate, who held a preliminary inquiry and committed all three for trial. Eventually, however, the Crown filed an information against the appellant alone. Though the record does not disclose the fact, it must be presumed that a nolle *prosequi* was entered in respect of the other two men. The appellant was tried on that information in the High Court of Tanganyika and was eventually found guilty and sentenced to death.

The appellant was not legally represented at his trial and we desire to emphasise the fact that, when an accused person, who is not legally represented. is being tried upon a capital charge, it is even more important that the prescribed procedure regarding High Court trials should be most carefully observed than in the case of a person who is represented by an advocate. Here, there appear to have been two irregularities in the trial of a serious character.

In the first place, we note that the information is dated the 27th May, 1948. and was served on the appellant on that date. He was arraigned on the 29th May. 1948, and his trial began on that date. This was not in conformity with the procedure laid down in section 242 of the Tanganyika Criminal Procedure Code which enacts that three days at least shall elapse between service of the notice and the trial, and there is nothing on the record to show that the appellant waived his right to the full statutory period. Non-compliance with the provisions of section 242 does not in our opinion render the subsequent trial a nullity. In England, under the Treason Act, 1708, a person who is to be tried on a charge of treason is entitled to delivery of a copy of the indictment accompanied by a list of the prosecution witnesses ten days before trial. In Regina v. Frost (1839), 9 C. & P. 129, objection was taken to the fact that these provisions of the Act of 1708 had not been properly complied with as regards delivery of the list of witnesses, but a majority of the Judges in the Court for Crown Cases Reserved held that "the objection to the delivery of the list of witnesses was not taken in due time, and the Judges agreed, that if the objection had been made in due time the effect of it would have been a postponement of the trial, in order to give time for a proper delivery of the list, and their Lordships held the conviction right". In our opinion similar reasoning applies to the present case. If the appellant has been aware of his rights and had objected to short notice, the only result could have been that the Court would have had to order postponement of the trial until the full statutory period of notice had elapsed. Therefore as said by this Court in Rex v. Luguda s/o Wage (1934), 1 E. A. C. A. 148, the defect in service may be curable under section 346 of the Tanganyika Criminal Procedure Code, subject, as said by this Court in Luguda's case, to the important proviso therethat there has been no possibility of a failure of justice. In this case we do not think that the defect in service has in fact occasioned a failure of justice, but we can visualize cases—and more particularly cases in which an accused person is not legally represented—in which this particular omission might occasion a very serious failure of justice. Section 346 is not a panacea for all evils and the provisions of the Code regarding notice of trial should in all cases be strictly adhered to, unless expressly waived.

To consider the evidence—the first witness was Mukarama Binti Kaizilege, who is the appellant's lover. Her evidence is that she herself, the deceased, the appellant, a woman called Lumelage, and Thomas and Martin, the appellant's two former co-accused, were drinking in a hut. The appellant took offence at. advances which the deceased made to Mukarama and announced that he was going to beat the deceased. The appellant thereupon got up with a stick in his hand and went over towards the deceased. He was wearing a *kanzu* and, as he went over towards the deceased, this $kanzu$ extinguished the only light in the hut. The witness Mukarama then went and hid under a bed. Whilst the hut was in darkness, she heard sounds of struggling, but no other noise and no sound of any sticks being used. After a time the appellant struck a match. By its light the witness was able to see the deceased lying dead on the ground. The appellant was there "breathing hard" and his co-accused Thomas and Martin were also standing in the room. The appellant then told her and the two men to assist him in carrying the deceased's body out into an adjacent shamba. The three complied with this order. The appellant then left the hut taking the witness with him. Next day he sent her home, telling her: "If you spread the news I will kill you and your children".

In cross-examination she admitted that she was a relative of Thomas and Martin and also that she had originally told the sub-chief that it was Thomas and Martin who had killed the deceased. As an excuse for this last act she alleged that she was afraid of the appellant. With regard to this allegation of fear it is to be noted that the deceased came by his end on Easter Sunday and the sub-chief did not start his interrogation until the following Wednesday, when according to Mukarama herself she was no longer living with the appellant.

The next witness was Lumelage. It is to be noted that this witness is a sisterin-law of Thomas and an aunt of Martin. Most of the details of her evidence are to the same purport as the evidence of Mukarama. When the light went out, Lumelage hid in a cattle pen at the back of the hut. Whilst the hut was in darkness, she heard the deceased say: "Mother, I am dying". She heard no other noise. She came out, when the appellant struck the match and saw the deceased lying dead on the floor. According to her, the appellant, who was trembling, said: "I have killed a man. Anyone who spreads the news I will kill him or burn his house". Appellant, Thomas, Martin and Mukarama then took the body out of the hut. She did not see the body again for three days, when two men came to the house and showed her the body lying under a coffee tree about fifty yards from her house. Her explanation of her failure to notice the body for three days is because "we were drinking almost continually during three days and I did not go to that part of my shamba". She admitted that she did not tell the subchief who had killed the deceased, because the appellant had threatened to kill anyone who spread the news.

from his judgment it would appear that the learned trial Judge accepted the atement of this witness that the appellant said: "I have killed a man" as being True. Had the appellant been legally represented at his trial, we feel that his advocate would have brought to the notice of the Court at least one fact which the Judge might well have regarded as seriously impeaching the veracity of this witness. We feel sure that a defending advocate would have cross-examined this witness as to statements made by her in her deposition and that in the event of her denying that she had made such statements, he would have applied that her deposition might be read at the trial.

In the circumstances we have decided that in the interests of justice we ought to refer to the deposition of this witness in the Lower Court. In $Rex$ v. Ziyaya (1936), 3 E. A. C. A. 31, the advocate for the defence had by a mistake not applied to have read the deposition of a witness after he had cross-examined her thereon with a view to showing that her deposition contradicted her evidence at the trial in certain material details. On the hearing of the appeal this Court was asked to refer to that deposition. This Court then said:-

"We do not desire it to be inferred that in every case in which a witness has been cross-examined on his former statements, we ought as a matter of course to compare his former statement with his evidence for the purpose of estimating his credibility, but this case presents unusual features ... We are therefore of the opinion that if we permit the failure of the defence to comply with what is nothing more than the mere formality of proving a deposition to stand in the way of our comparing the two portions of the record in question, we may sanction a miscarriage of justice".

Here, unlike the appellant in Ziyaya's case, the present appellant was not legally represented at his trial and we feel that the interests of justice require that we should refer to Lumelage's deposition. There are one or two minor discrepancies to which by themselves we would attach no great significance, but there is a most material discrepancy as to what the appellant said after striking the match. In her deposition she said: "Before they took the body outside Wilbald (sc. the appellant) said: "If anyone spreads the news of this, I will kill him". She did not then say, as she said at the trial, that the appellant said: "I have killed a man". We cannot but feel that, bearing in mind the relationship of the witness to Thomas and Martin, and her omission to name the appellant to the sub-chief, if this embellishment of her evidence at the trial had been brought to the notice of the learned trial Judge, it might have altered his view of the credibility of this witness.

After a witness had deposed to the discovery of the deceased's body in the shamba, the sub-chief deposed to his investigation of the case. He said nobody told him that the appellant had killed the deceased and that Mugarama had told him that it was Thomas and Martin who had killed the deceased.

The deposition of the medical witness was read at the trial under the provisions of section 276 (1) of the Criminal Procedure Code. Externally he found a mark about an inch in width extending right round the neck on both sides and in front. There was some bloodstained froth from the nose and the mouth and the tongue was swollen and protruding. The lungs were congested and there was frothy fluid in the trachea. The condition of the body was compatible with death by asphyxia, of which strangulation was one of several possible forms. Death had occurred three or four days before the examination and in the then condition of the body the witness was unable to find any signs of a blow with a stick, though he did not rule out the possibility that he was unable to detect such an injury owing to the state of the body.

The last witness to be called by the prosecution was Martin bin Rwebogora, who, as already said, was originally committed for trial along with the appellant. There is nothing to show that the appellant was served with notice of the intention to call this witness or with particulars of the evidence which it was proposed that he should give, as required by section 273 of the Tanganyika Criminal Procedure Code. As that section shows, not only must such notice be given, but it must also be shown that the length of such notice was reasonable. As the witness became available to the prosecution at the time of filing the information on May 27th, and as his statement before the committing Magistrate was known to the Crown, it is very clear that this was not a case in which the evidence of the intended witness only came to light on the day on which he was called.

The effect of non-compliance with the provisions of this section was considered by this Court in Rex v. Yakobo Isairi Busigo (1945), 12 E. A. C. A. 69. As explained in that case, the reason for requiring such notice is to ensure that the accused person shall "not be unduly prejudiced or embarrassed in the presentation of his defence by having sprung upon him without reasonable notice evidence which, if forewarned and given time, he may be able to impeach or to rebut, but which, by reason of his being taken by surprise, he is not at the time in a position to impeach or rebut". As this Court further said in that case, if objection were taken at the time to the omission to give reasonable notice of the intention to call the witness, the Court's duty would be to postpone the admission of the evidence until the provisions of section 273 had been complied with. As also said in that case, the admission of such evidence without a proper compliance with the provisions of section 273 may be curable under that oft invoked section, section 346 of the Tanganyika Criminal Procedure Code. But as further in Yakobo Isairi, "every case of this description must, of course, be judged on its own facts". In that case the evidence of the additional witness was of a perfectly formal character relating to some exhibits. Here, the evidence of the additional witness is very far from being of a formal character and a matter which must weigh very considerably with us in deciding as to the possibility of the omission having occasioned a failure of justice is the fact that the accused was not legally represented at his trial.

But apart from the apparent omission to give the prescribed statutory notice there are other matters to be considered in regard to the evidence of this witness. At the trial the witness said: $-$

"Deceased stood up and accused hit him with a stick. The light then went out. Accused hit deceased—I do not know where—I merely heard the sound, as the light had already gone out. After hearing the sound of a blow I heard someone fall down. I then went near to the door and said to accused: 'Do not fight in the house of another man'. Accused said: 'Who said that?', but I did not reply as he was angry. After a short while accused struck a match. I was then near the doorway to the inner room. Accused called me and I went to him. On the ground I saw Lugeiyamu. He was dead. Thomas stood near the accused. Accused was holding his stick in his hand. Thomas had nothing ... I, Thomas and Mukarama carried the body out $\ldots$ ."

"I reported this matter to no-one because accused threatened to kill anyone who spread the news ...".

Cross-examined: "I and Thomas did not kill Lugeiyamu".

But this was not the first statement which the witness made on the subject. For the reasons given in the case of the evidence of Lumelage, we feel that reference must also be made by us to the earlier statements made by the witness Martin.

an extra-judicial statement made by this witness to a Magistrate on April $.948$ , he said: -

"Willibald (sc. appellant) and Rugeyamo (sc. deceased) began to quarrel about this and the owner ordered them to leave, but they refused. Then Willibald and the owner, Thomas, set upon the deceased, both with sticks. The last blow was struck by Willibald who made the deceased fall down. We afterwards found that he was dead".

Martin also gave evidence upon oath at the preliminary inquiry. In the course of his evidence he said: -

"Accused No. 1 was angry and pushed deceased. Deceased also got angry and pushed Accused No. 1 (sc. the appellant). Thomas said: 'Don't fight in someone's house-go out'. I went into the bedroom part of the house to find money to buy cigarettes. I heard Wilbald beat deceased. The lamp went out while they were struggling. When I was opening my box to get money, I heard a sound as of a man falling. I shouted: 'Don't fight in someone's house, go away'. Wilbald replied: 'Who is that speaking?' I kept silent. After a short time Wilbald struck a match . . . Wilbald ordered us to carry the body. He said: 'Take this man out. If you do not, I will kill you'... On Saturday 3rd... the sub-chief asked me about the death. I told him to call Wilbald. Then I would give evidence. I then told the sub-chief all I knew ...".

Cross-examined: "When I was with the sub-chief I did not say all I knew until Wilbald arrived because I was still afraid of Wilbald's threat. I wanted him to be under arrest first. When I told the sub-chief about the murder, Wilbald was not present. I did not report the murder because I was afraid of Wilbald. Thomas was also forced to carry deceased outside. Thomas was present when Wilbald struck deceased. Thomas did not strike Wilbald nor deceased ...".

With regard to the co-witness' statements regarding the information which he gave to the sub-chief we have to bear in mind that at the trial the sub-chief himself said nobody had told him that the appellant had killed the deceased and that the appellant said: "Martin, Thomas, and the woman of the place had killed him".

In addition, it is to be noted that in his original statement the witness Martin attributed the crime to Thomas as well as the appellant. Before the committing Magistrate he exonerated Thomas and laid the whole blame on the appellant and that he once again exonerated Thomas at the trial. Had these discrepancies upon a very material point in the case been brought to the notice of the learned trial Judge, we cannot but feel that he might well have taken a very different view as to the credibility of the witness.

Finally, apart from these discrepant statements, it is to be observed that this witness seeks to attribute the deceased's death to beating with a stick, whereas the medical evidence shows that he died of asphyxiation due, in all probability, to strangulation.

The appellant's defence to the charge was that he left the house before the killing took place.

To sum up, there are only three witnesses who profess to have been eyewitnesses to the events leading up to the deceased's death, and each of them has previously made statements in regard thereto, which differ in certain important details from the evidence which they have given at the trial. Their evidence is also contradicted in certain other material respects by the other witnesses called by the Crown.

There is one other matter in connexion with this case to which we feel we should call attention. At the preliminary inquiry the prosecution sought to put in evidence certain extra-judicial statements which each of the three accused had made before a Magistrate. In each of these statements the maker sought to exculpate himself by shifting responsibility for the crime on to the shoulders of one or more of his co-accused. The committing Magistrate rejected them in evidence on the ground that they were not confessions and therefore inadmissible under section 30 of the Indian Evidence Act as against the persons inculpated in those statements.

In so doing the Magistrate misdirected himself. It is true that, as the statements were not confessions, they could not be used against any persons inculpated thereby, but each of them could, and should, have been admitted in evidence as a statement exculpating the maker from the charge. The fact that an accused person has made a statement denying his guilt very soon after he has been charged with the offence may often be very relevant indeed as showing the consistency of his conduct at that early date with the version of the facts as given by him at his trial and may even in some cases be the last ounce which turns the scales in his favour. When therefore an accused person has made an exculpatory statement at an early date, evidence of that statement ought to be given in Court. It is of course only evidence in favour of the maker, and cannot be used as evidence against anybody else, but as evidence in favour of the maker it will sometimes carry a good deal of weight with a trial Court.

We feel we must also draw attention to an error on the part of the Thirdclass Magistrate who took the extra-judicial statements when he recorded in the case of this appellant and of the then accused Thomas s/o Kemala that he was satisfied that the "confession" the person who was before him was about to make was a voluntary one. The Magistrate had no right to assume that the statement would amount to a confession—in the event his assumption was proved to be wrong as both the statements were exculpatory in character. Perhaps this was a slip on the part of this Magistrate because in the case of the accused Martin bin Rwebogora we note that he correctly used the word "statement". We mention the matter, however, not because the wrong use of the word "confession" has in this case caused any actual prejudice to the appellant, but because its use indicates a confusion of thought in the mind of the Magistrate. This is by no means the first time this Court has noted the improper use of the word "confession" by Magistrates when taking extra-judicial statements.

We have now said enough to indicate that in more than one respect this was an unsatisfactory trial—of the two irregularities in procedure, if one be curable, we are definitely of the opinion that the other is not. The appellant was, without notice, confronted with one of his co-accused who had been committed for trial with him as a witness against him and it would be idle to contend that this did not cause him embarrassment or prejudice. In addition there are the conflicting statements made by the principal prosecution witnesses which we have fully set out above. Had these been brought to the notice of the trial judge by a proper cross-examination of the witnesses it is impossible to say that he would necessarily have arrived at the same conclusion.

For this reason we consider that the conviction of the appellant cannot stand and that his appeal must be allowed. We set aside the conviction and sentence, and order him to be released forthwith.

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In the course of the hearing of this appeal we were referred to the decision of this Court in Rex v. Sayed Mohamed Naj-Muddin (Cr. Appeal 94 of 1947), but we must point out that that case is distinguishable from the present one. In Sayed Mohamed the question before this Court was as to whether an order of deportation which was required of law to be made by a Magistrate on a conviction under regulation 5 (1) (a) of the Defence (Admission of Male Persons) Regulations, 1944, had the effect of taking a prosecution under those regulations out of the operation of the rule laid down in section 216 of the Criminal Procedure Code, which imposes a period of limitation for the summary trials of certain minor offences. The decision of the Court in that case depended upon the proper construction of the relevant regulation under which the proceedings had been commenced. In the present case our decision is based upon the construction of another enactment, which is quite differently worded.

It follows from what we have said that in these cases an order of forfeiture under section 12 (2) of the Native Authority Ordinance does confer a right of appeal upon a convicted person. These appeals are accordingly allowed and the cases are remitted to the Supreme Court so that it may deal with the applications for leave to appeal out of time.

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