Sesero v Rex (Criminal Appeal No. 124 of 1951) [1951] EACA 183 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

#### NGARAMA s/o SESERO, Appellant

#### $\mathbf{v}$

### REX, Respondent

# Criminal Appeal No. 124 of 1951

# (Appeal from decision of H. M. High Court of Tanganyika—Knight, J.)

Murder—Committal proceedings—Accused elected to make a statement— Difference between this and giving evidence on oath.

In the committal proceedings the Magistrate purported to explain to appellant the provisions of section 223 (1), Tanganyika Criminal Procedure Code, and recorded that the accused expressed a wish to make a statement. At the beginning of his statement the Magistrate warned the appellant to speak the truth, and at the end he recorded that the prosecution did not wish to cross-examine. At the end of the statement the Magistrate certified that the evidence given by the appellant was taken down in his presence and contains accurately the whole evidence given.

Held (21-6-51).—(1) Magistrate should not have warned appellant about anything if he elected to make an unsworn statement.

(2) If the appellant wished to give evidence the Magistrate should have complied with section 152 of the C. P. C. and either administered an oath or affirmation to the appellant,

Appeal dismissed.

Appellant unrepresented.

C. Innes, Solicitor General, Tanganyika, for the Crown.

JUDGMENT.—In this case the appellant was convicted of the murder of his mother-in-law by the High Court of Tanganyika.

It is not in dispute that the appellant killed the deceased by inflicting upon her a number of head injuries. He submits, however, that the learned Judge should have convicted him of manslaughter only because at the time he was acting under the stress of provocation. The appellant made an extra-judicial<br>statement and also gave evidence at his trial, but, if everything he has said is accepted, it is manifest that a defence founded on provocation was not open to him. At the most it would appear that he attacked his mother-in-law because he was angry with her on account of the fact that she, together with her daughter, taunted the appellant with his poverty, and that he suspected that the two of them had hidden some of his personal belongings. The learned Judge thus rightly rejected the appellant's plea and convicted him of murder. The appeal is dismissed.

There is one further observation we think necessary to make. We notice from the record of the proceedings before the Magistrate that at the close of the prosecution case the Magistrate purported to explain to the appellant the provisions of section 223 (1) of the Tanganyika Criminal Procedure Code, and the Magistrate has then recorded that the accused expressed a wish to make a statement. At the beginning of this statement the Magistrate also recorded that he warned the appellant to speak the truth and at the end of the statement he has recorded that the prosecution did not cross-examine. It would seem, therefore, that although the appellant had elected to make a statement rather than to give evidence on oath, the Magistrate dealt with the matter as if the appellant had elected the opposite. In fact, at the end of the appellant's statement, he has certified that the evidence given by the appellant was taken down in his presence and contains accurately the whole evidence given. As the prosecution did not in fact cross-examine the appellant, the mistake made by the Magistrate in this case is not important, but, had questions been put the position might well be otherwise. It is essential that Magistrates, entrusted with the responsibility of conducting preliminary investigations, should read carefully the procedural sections and know what they are about. In this case we are perplexed by the Magistrate's observation that he warned the appellant to speak the truth. If in fact, in this case, the appellant did elect to make an unsworn statement, as it would appear he did, then the Magistrate had no business to warn him about anything, and his only duty was to record what the appellant said.

Likewise, if what the appellant wished to do was to give evidence, then the Magistrate should have complied with the provisions of section 152 of the Code. and either administered an oath or affirmation to the appellant.