Udinde and Another v Reginam (Criminal Appeals Nos. 189 and 190 of 1955) [1955] EACA 353 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Lowe, J. (Tanganyika)

## (1) YOHANNIS s/o UDINDE, (2) MARTIN s/o UDINDE, Appellants (Original Accused)

ν.

REGINAM, Respondent

Criminal Appeals Nos. 189 and 190 of 1955

(Appeal from the decision of H. M. High Court of Tanganyika, Tacey, Ag. J.)

Confession—Repudiated confession—When corroboration required for—Addresses.

The two appellants were convicted of murder. The prosecution case rested, almost entirely, on a repudiated confession alleged to have been made by one of the accused to K. K. was shown to have lied during the course of his evidence. Apart from the evidence of K. there was no evidence connecting the second appellant with the alleged offence, whilst the first appellant admitted killing the deceased when he was drunk.

There was no note on the record as to whether or not counsel addressed the court.

Held (9-7-55).—(1) Although a repudiated confession as distinct from a retracted confession does not, in normal circumstances, require corroboration, there may be circumstances in which a court should require corroboration before evidence of a repudiated confession is accepted as reliable. Such a case was the instant one, where the alleged confession was given in evidence by a person who was shown to have lied in the course of his evidence.

(2) Where counsel address the court a, note of the submissions, particularly those of law should be recorded by the trial Judge, whilst, if no addresses are made, this fact should be noted.

Appeal of first appellant allowed in part and his conviction and sentence for murder set aside, conviction for manslaughter substituted and appellant sentenced to five years' imprisonment. Appeal of second appellant allowed.

Case referred to: R. v. Lalasia, 3 E. A. C. A. 106.

Appellants absent, unrepresented.

**Ballard** for respondent.

JUDGMENT (delivered by LOWE, J.).—This is an appeal against a conviction of both appellants for the murder of one Athumani s/o Mwamanga. We quashed the conviction for murder against the appellant, Yohannis, substituted a conviction for manslaughter, and imposed a sentence of five years' imprisonment. The appeal of the appellant Martin was allowed, his conviction quashed and the sentence set aside. He was ordered to be set at liberty.

The prosecution case rested almost entirely on the evidence of the witness. Kaulande, who deposed to having had a conversation with Yohannis during. which the latter said that he and the appellant, Martin, waylaid the deceased and each struck him, Martin with a club and Yohannis with a billhook, and killed him. Kaulande said that Martin, during the conversation, was asked by him whether he was with Yohannis while they were doing this, and he admitted he was..

In the course of his evidence Kaulande also said that he was not related at. all to the deceased. There was a suggestion which was brought out in crossexamination by the defence that the two appellants, who are brothers, had been

told to leave their village because their father was a witch-doctor. Kaulande apparently was living in the same village, and the suggestion seemed to imply that Kaulande might have had reason for incriminating the two appellants in: order to get rid of them, and that he took the opportunity of doing so as soon: as he knew that the deceased had been killed.

The appellant Yohannis admitted killing deceased, but said that it happened. following an all-day *pombe* party, when they were very drunk. His defence-<br>was that the deceased had struck him with a billhook, not with the sharp edge,. and he had retaliated by striking the deceased with his billhook. He also said that Kaulande was a relation of the deceased, and this is corroborated by the witness Kitalimale, who said that Kaulande and the deceased were related, having. a common grandmother, and that they were acknowledged relations.

Although a repudiated confession as distinct from a retracted one does not in normal circumstances need corroboration, it has on many occasions been pointed out by this Court that there are circumstances in which a court should require corroboration before evidence of a repudiated confession can be accepted as reliable. See for example the case of Rex v. Lalasia (3 E. A. C. A. 106) where the distinction between a confession made in the form of an extra-judicial statement before a magistrate and a confession alleged to have been made to a prosecution witness was pointed out. The instant case clearly exemplifies the necessity for corroboration of such a confession. Yohannis denied ever having admitted to Kaulande that he killed the deceased, and, in view of the fact that Kaulande was shown by the prosecution witness Kitalimale to have lied, hisevidence at once became suspect; and the learned trial Judge should then have looked at the evidence of Kaulande with the greatest suspicion and should not have been satisfied as to the credibility of that witness without some other evidence supplying sufficient and satisfactory corroboration of the alleged statement by Yohannis. There is no such corroboration, although the learned trial Judge appears to have been satisfied that there was from the medical evidence. Both of the assessors rejected Kaulande's evidence but in his judgment the learned trial Judge said: "I consider that the medical evidence, which I accept, amply corroborates the confession which Kaulande attributes to Yohannis."

There were three weapons produced by the prosecution—a spear, a billhook, and a club; and all were shown to be the property of Yohannis. Kaulande had said that Yohannis stated that Martin had struck the deceased with a club and Yohannis with a billhook, he did not mention a spear. In his judgment the learned trial Judge stated that Kaulande's evidence was to the effect that "Yohannis struck Athumani with a spear and slashed him with a billhook". That, of course, is not correct, and when learned counsel for the Crown was asked if he could find any reason for the statement in the judgment he found that the words of the judgment appeared to follow the wording of the deposition of Kaulande at the preliminary inquiry. We do not know, of course, whether or not the learned trial Judge had looked at the preliminary inquiry proceedings when writing his judgment, but the coincidence is a very unfortunate one, and would seem to have influenced the learned Judge in his judgment. The medical evidence showed that there were three injuries suffered by the deceased as the result of blows, that one injury was consistent with a stab wound, and that the spear produced could have caused that wound; that another could have been caused by the billhook; and that the third could have been caused by the club. The medical evidence did not exclude the possibility that the injuries might have all been caused by the billhook by reason of the blade having wounded the deceased, causing the first two injuries, and by the handle of the billhook causing the third, nor did the learned Judge test this possibility. The learned trial Judge appeared to have taken the medical evidence in this respect at its face value, because inThis judgment he has referred to all three injuries and has come to the conclusion "that they were caused as implied by the medical officer. Had he not reached that -conclusion we think that he would have found that there was nothing to connect Martin with the attack on the deceased except the statement of Kaulande, which he would then have rejected in so far as Martin was concerned.

There is no note in the record as to whether or not counsel addressed the court. If the learned trial Judge have been helpful if the learned trial Judge had made a note of the submissions, particularly those of law, made by counsel; and if they did not address the court this fact should have been noted.

We do not consider that the learned trial Judge was justified in acting on the uncorroborated evidence of Kaulande, and we find that the medical evidence does not corroborate that witness. The appellant Yohannis insisted in his evidence that Martin was not present when he himself quarrelled with deceased, and that was confirmed by Martin himself. As the evidence of Kaulande should have been rejected, there is nothing to connect Martin with the crime, and he should have been acquitted. The prosecution case merely rests on the admission of Yohannis, that he struck the deceased with his billhook when they were both drunk and after the deceased had aimed a blow at Yohannis. This appellant seems to have been frank and consistent in admitting that he caused the death of the deceased, but his admission is only to the offence of manslaughter.

It was for the reasons we have now given that we reduced the offence from 'murder to manslaughter in the case of Yohannis and quashed the conviction of the appellant Martin.