Ali and Another v Reginam (Criminal Appeals Nos. 1008 and 1009 of 1954) [1955] EACA 322 (1 January 1955)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), MAHON, J. (Tanganyika) and HOLMES, J. $(Kena)$

(1) SHARIFA BINTI ALI, (2) SAFIA BINTI BAKARI, Appellants (Original $Accused$

$\mathbf{v}$

REGINAM, Respondent

Criminal Appeals Nos. 1008 and 1009 of 1954

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

Confession—Murder—Corroboration—Confession to murder without corroboration—Whether sufficient to found conviction—Weight of confession.

The appellants were convicted of murder.

They contended that in law a confession to murder is not sufficient alone to warrant a conviction of murder without corroboration. The evidence for the prosecution was found almost entirely in the various statements made by the appellants.

The second appellant maintained that as her confession was made when<br>she was only charged with witchcraft, it should not have the same weight as if the charge had been murder.

$Held$ (22-1-55).—(1) A conviction for murder may be justified if based on a confession alone, provided that the confession is admissible in evidence and believed. If it is retracted it should so be accepted only with corroboration.

(2) A confession (otherwise admissible) is admissible in evidence irrespective of the person to whom it was made or the occasion on which it is made, so long as it has not been made as a result of inducement or duress.

Appeal dismissed.

$\cdot \cdot \cdot$

Case referred to: Gae s/o Maimba and another v. R., 12 E. A. C. A.

82.

Appellants absent, unrepresented.

Fifoot for respondent.

JUDGMENT (prepared by Holmes, J.).—The two appellants were convicted and condemned to death for the murder of one Salehe s/o Sale, the husband of the first appellant, in May, 1954. We have consolidated the two appeals.

As the learned Judge says in his judgment the evidence for the prosecution is to be found almost entirely in the various statements made by the accused themselves.

The first of these statements was made on 6th July, 1954, to Mr. John Young, the District Commissioner of Rufiji District, before whom the appellants were brought at their own request, when they had been arrested on a charge of witchcraft.

Again on 29th September, 1954, both appellants told the magistrate at the preliminary inquiry that the statements they had made to Mr. Young were true and correctly recorded, and confirmed them at all points.

Lastly at the trial the first appellant made a very confused statement but admitted the truth of many of the incidents she had admitted in her previous statements. She was evidently frightened and would not touch the exhibits or even look at them. It certainly was not a repudiation of her original confession. She seemed to wish to suggest that she saw all the events in some form of trance due to a medicine rubbed on her, but could not understand them while they were happening, and only realized and remembered them when another medicine was rubbed on her, which restored her senses.

The second appellant frankly admitted in court that what she had told the District Commissioner was correct, though she said she would not have told him, if she had realized that she was putting her life in danger.

These stories told by the two appellants show that a Chama of witches of which both accused were members, appellant No. 1 as a learner or apprentice, and appellant No. 2 as a fully qualified witch, decided to kill Salehe s/o Sale, whom they regarded as a rival wizard to their own leader Chepela.

The Chama waylaid their victim one night, forced drugs into his mouth which rendered him unconscious and took him to their leader Chepela's house. Three days later they took him to the bush again, and killed him with other drugs. The body was cut up, the head and organs removed, taken back to Chepela's house and cooked and eaten by the witches including the two appellants.

It is certain that the statements relating to these events made by the two appellants were entirely voluntary. This has never been contested, nor is it in the memoranda of appeal. In fact in paragraph 2 of the memorandum of appeal of the first appellant, they seem to be again admitted, at least partially.

Once the court and assessors accepted these statements they could have arrived at no other conclusion than that at which they did arrive, which was that both accused were guilty. The trial Judge directed the assessors carefully, and no criticism can be made of his direction. As this is the case, the first three paragraphs of the memorandum of appeal of the first appellant contain nothing which would justify this Court in allowing her appeal.

The only point which is raised by the memoranda of appeal of both the appellants, which merits any consideration is that which raises the question of the admissibility of these confessions. There can be no question that a confession voluntarily made is admissible as evidence against the person who made it. This is not seriously contested by either of the appellants. What the appellants maintain is that in law a confession of murder is not sufficient alone to warrant a conviction without corroboration. In addition the second appellant maintains, that as the original confession made to Mr. Young was made by her when charged only with witchcraft, it should not have the same weight as if the charge had been murder. There is no authority at all for this latter proposition. A confession is admissible evidence irrespective of the person to whom it is made, or the occasion on which it is made, so long as it has not been made as a result of an inducement or duress. In this case also it is not quite true to say that there was no corroboration of the story of the two accused.

The trial Judge points out in his judgment that there was the evidence $(a)$ that the first accused was in possession of the coat which her husband was wearing, when last seen alive by the witness Mohamed Mikawayas. There is no explanation of how she could have been in possession of this coat after the murder unless she was telling the truth, when she said she was given it in Chepela's house after her husband's death $(b)$ that the first accused reported the disappearance of her husband to his brother $(c)$ that during the investiga-

tions into his disappearance the first accused showed the police where a piece of black cloth belonging to her husband lay in the bush $(d)$ that during the course of investigations in the same area, the same constable found the skull produced in court, $(e)$ that when searched after her arrest six human teeth were found hidden in the vagina of the first accused, three of which fitted the jaws of the skull $(f)$ that accused No. 1 told the woman who searched her, and the constable who was present that the teeth were her husband's.

It is true that the trial Judge does not seem to have attached much importance to these facts, and said in the judgment that in this case corroborative evidence is hardly necessary. One must admit that none of them would be sufficient to justify a conviction in themselves, but they are corroborative of the truth of the appellant's stories in the sense that they were not inconsistent with them, and would be extremely difficult to explain, if those stories were not true.

Even if there were far less corroboration of the truth of these confessions than there is, there is no rule of law that a conviction cannot be justified if based on a confession alone provided the confession is admissible and is believed. No doubt if a confession is retracted, it should only be accepted as evidence with corroboration, but this is not the case here. The trial Judge rightly says in his judgment, "Nor do the accused deny that their statements that Salehe s/o Sale was killed by the Chama of witches mentioned in their respective confessions are true. They still maintained in this Court that Salehe was killed in the way they described although the second accused towards the end of her crossexamination did say that Salehe died in the home of Chepela". Even in this Court the appellants still maintain the story of how Salehe s/o Sale was killed, dismembered and eaten, for the first appellant says in her memorandum of appeal, that she was forced to join the party which set out to kill her husband by threats, a defence she had set up at the trial, but which was rightly rejected by the court and the assessors. The appeal must be dismissed.