Rex v Ziyaya (Cr. App. No. 134/1935.) [1936] EACA 31 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika), and HALL, C. J. (Uganda).

## REX, Respondent (Original Prosecutor) ZIYAYA: Appellant (Original Accused). Cr. App. No. 134/1935.

- Criminal Procedure—Evidence—Discrepancy between evidence of withess and deposition—Witness cross-examined as to discrepancy but deposition not put in evidence—Deposition considered by Court of Appeal. - $Held$ (4-2-36).—That, although the court will not in every case where a witness has been cross-examined on his deposition, but the deposition has by mistake not been put in evidence, compare such deposition with his evidence for the purpose of estimating his credibility, yet in the circumstances of this case the failure of the defence to comply with the formality of proving the deposition should not be allowed to prevent the Court from comparing the two portions of the record.

The facts of the case appear from the judgment.

Appellant absent, unrepresented.

Dennison, Crown Counsel, for the respondent.

JUDGMENT (delivered by SIR SIDNEY ABRAHAMS, C. J.).—The appellant was convicted of the murder of a woman named Mali-The case for the Crown was that one Jeremiah the wata. husband of the deceased had a quarrel at a nocturnal beer party with one Lumbe during the course of which blows were exchanged and Lumbe was rather badly handled. Lumbe later that night went to the hut of the appellant and complained of Jeremiah's conduct. Jeremiah appeared on the scene a short time later and the quarrel was renewed. The appellant then took the initiative and struck Jeremiah with a hoe handle first on the knee and then on the temple bringing him to the ground unconscious. The deceased woman then came out of her house and seeing Jeremiah on the ground thought he was dead and flung herself upon Lumbe. The appellant went to his hut, seized a large piece of wood used to secure the door of the hut and struck the woman on the back of the head. The woman died very shortly after the blow, according to the medical evidence of concussion of the brain. The appellant ran off at once and was captured in Portuguese territory. Lumbe was found within a few yards of the spot trying to run away.

The only eye-witnesses of the affair were Lumbe, Jeremiah and Mache, the wife of the appellant. The learned judge treated Lumbe as unreliable, and it appears to us quite properly; Jeremiah said that he fell unconscious when struck by appellant and that when he came round he found his wife dead. He had not seen her come upon the scene. It was on the evidence of Mache that the conviction was based.

This witness gave a very circumstantial account of the She described in great detail the arrival of Lumbe and affair. his discussion with the appellant, the arrival of Jeremiah; the assault upon Jeremiah by the appellant with its consequences; the arrival of Maliwata and her attack upon Lumbe, and the fatal blow struck by the appellant with the hut-pole. $\quad \text{Her} \quad$ evidence seems to have made a deep impression upon the assessors and upon the learned trial judge, who described it as "given clearly, quietly and unfalteringly".

It was put to Mache in cross-examination that her evidence varied from that given in the Court blow. This she denied. We have referred to her deposition and have discovered substantial differences in the two statements. The appellant's counsel did not attempt to put in the deposition in contradiction of the witness' evidence and the learned trial judge does not appear to have referred to the discrepancies. In the appellant's written arguments, we are requested to take the discrepancies into consideration and we now have to decide whether in the absence of formal proof of them in the Court below it is proper to accede to the appellant's request.

We do not desire it to be inferred that in every case where 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.

The discrepancies are on most material facts and as counsel for the appellant referred to them in his address to the Court, he seems to have been under the impression that the mere crossexamination of the witness on the deposition brought it into evidence ipso facto. The written arguments submitted to this Court by the same counsel on behalf of the appellant are confirmative of this. Incidentally one of the assessors in giving his opinion on the case referred to Mache's deposition. The witness did not attempt to explain away the discrepancies, but averred that she had given the same evidence in both Courts.

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.

Treating then the deposition of Mache as proved, it seems obvious to us that the evidence she gave is most contradictory. At the trial she gave as we have said a perfectly circumstantial account of the fatal blow and the events that preceded it, at the inquiry her statement was most sketchy and clearly implied that she did not see either the blow that felled Jeremiah or the blow that killed Maliwata. These words are the essence of her deposition: "Jeremiah came and stood over in the dark near Lumbe's house and called out, 'Where is Lumbe'? After that there was a fight. My husband did not re-enter my house. When the fight was over, it was all quiet, and I went out to see what had happened. I found my cousin Maliwata apparently dead. Then I thought perhaps she had only fainted... there was not much noise, only Maliwata screamed out 'My husband is dead' and then all was quiet." $\mathcal{L}_{\mathcal{A}}$

One of the assessors observed that when Mache says she told everything at the inquiry it is possible she was not asked in such a way as to let her explain everything as she did at the trial. We are not unfamiliar with genuine explanations of this kind, but that is not the explanation of the witness herself. If she was allowed to tell her story in her own way at the inquiry, it seems to us impossible that she could have accidentally omitted such all-important details, and if she testified merely as the result of particular questions it seems to us equally impossible that she could have formed an impression that she had been questioned on these details. One of these statements at least must have been false, the witness says they are both true and we do not see how, no matter what favourable impression she may have made at the trial, it can be safely held that the later statement was true.

There is no evidence other than that of Mache which implicates the appellant. He did run away, but he says that that was because he had struck Jeremiah on the temple and would have been responsible, if he had died. That is a not unreasonable explanation. There is nothing to show he was even on the spot when Maliwata was killed, and it is not for us to conjecture who actually struck her, whether Lumbe, who was there, or some other person who came and intervened.

We quash and conviction and acquit the appellant.