Sebukuraya v Regina (Criminal Appeal No. 222 of 1952) [1952] EACA 266 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and SIR HECTOR HEARNE, C. J. (Kenya)

# YOZEFU MASABO s/o SEBUKURAYA, Appellant (Original Accused)

#### ν.

## REGINA, Respondent (Original Prosecutrix)

### Criminal Appeal No. 222 of 1952

(Appeal from the decision of H. M. Hight Court of Uganda-Stuart, Ag. J.) Criminal Procedure—Accused statement—Admission before interpreter proves it.

The appellant was convicted of murder by the High Court of Uganda and during his trial a statement alleged to have been made by the appellant when charged at the police station was produced in English by a police inspector, who after it had been marked for identification read it out to the Court when the interpreter was called it transpired that he had not properly interpreted the usual caution to the appellant.

Held (8-12-52) - A statement should never be read out in open Court until it is properly proved by the evidence of the interpreter as well as by the Magistrate or police officer who recorded it.

Appeal dismissed.

Case referred to: Kashandago s/o Kadoshi v. Regina, Cr. App. No. 68 of 1952.

Starforth, Crown Counsel (Uganda), for Crown.

Appellant absent unrepresented.

JUDGMENT.—The appellant was convicted of murder by the High Court of Uganda. In his memorandum of appeal he submits that the learned Judge erred in finding that he was not so intoxicated as to be unable to form an intention to kill and that the Judge also erred in finding that certain injuries subsequently found on the appellant were caused by beating administered to him after he had stabbed the deceased. As regards the first point the learned Judge fully considered whether any defence was open to the appellant on the basis of drunkenness and on the evidence before him, in our opinion, he clearly came to the right conclusion that there was not. The appellant had doubtless had some drink but before he left the beer party he announced his intention that he was going to spear the deceased and he then followed him some distance before doing so. Two witnesses gave evidence as to having heard this threat. The appellant's conduct therefore clearly indicates that he knew what he was about. As regards the question whether he received any provocation at the hand of the deceased, the evidence is also quite conclusive. The appellant said nothing at the trial but-in his statement before the committing Magistrate, he admitted that when he caught up with the deceased on the road, he stabbed him and he said nothing at all about having been assaulted first by the deceased. On the contrary he gave an explanation as to how he had received his injuries which agrees generally with the evidence given by the prosecution.

There is accordingly no merit in either of the points taken on appeal and his appeal must be dismissed.

We wish to make one observation, however, as regards the statement made by the appellant when he was charged at the police station. This statement was produced in English by a police inspector who, after it had been marked for identification, read it out to the Court. When the next witness, the interpreter was called, it transpired that he had not properly interpreted to the appellant the usual caution. Because of this the learned trial Judge most properly refused to admit the statement and put it out of his mind. It had, however, already been read out in open Court and may have been understood by the Assessors who would, no doubt, find difficulty in excluding it from their consideration of the case.

In Criminal Appeal No. 68 of 1952 which was an appeal from the High Court of Tanganyika we commented on the practice of some Judges to allow a statement to be admitted as soon as it was produced and we observed that a trial Judge should be careful never to admit a statement, by which we mean it should not be read out in open Court, until it is properly proved by the evidence of the interpreter as well as by the Magistrate or the police officer who recorded it. The instant case is a good example of the danger which may arise if this course is not followed. We are also fully satisfied in this case that the trial Judge on whom the ultimate responsibility lay entirely disregarded the appellant's statement to the police officer and that the appellant was by no means prejudiced by the fact that what was said to the police officer had been read in Court before it was properly proved.