Rex v Abumani and Another (Criminal Appeals Nos. 273 and 274 of 1945) [1945] EACA 40 (1 January 1945)

COURT OF APPEAL FOR EASTERN AFRICA in

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and Sir Norman Whitley, C. J. (Uganda)

REX, Respondent (Original Prosecutor)

ν.

(1) VICTORO ABUMANI, (2) LOZA NAKIWALA, Appellants (Original Accused Nos. 1 and $2$ )

Criminal Appeals Nos. 273 and 274 of 1945

(Appeals from decision of H. M. High Court of Uganda)

Criminal Jaw-Murder-The female accused disassociating herself before fatal injuries inflicted—Observations on irregulatities in the recording of statements from accused persons by police officer.

Both appellants suspecting the deceased of having stolen their property from their hut caught hold of him, beat him up and tied him up to a pole. The female appellant Loza subsequently asked the male appellant Victoro to until the deceased but he refused. On the following morning the deceased was found dead about 200 yards from the accused's hut from which marks on the ground showed that he had been dragged. Death was due to strangulation.

Both appellants were convicted of murder and appealed.

Held $(16-11-45)$ .—(1) That as Loza had asked Victoro to until the deceased while he was alive there is a real doubt as to whether she is responsible for the deceased's death.

(2) That while it is perfectly legitimate and even necessary to question accused persons so as to ensure that what they really mean is recorded care should be taken to ensure that they are not subjected to cross-examination, as this would be destructive of the voluntary nature of their statements.

(3) That the procedure of recording an accused's statement in the presence of his co-accused and giving an opportunity to the latter to cross-examine him is without sanction.

Appeal of first accused dismissed.

Appeal of second accused allowed.

Appellants absent, unrepresented.

Kingsley, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—With regard to the second accused, Loza, we consider that there is a real doubt in the case as to whether responsibility for Paulo's death has been brought home to Loza. In her favour there is the evidence that she asked Victoro to until Paulo and that he refused. It was some time subsequent to this that Paulo received further and serious injuries for which Loza cannot be held responsible. We have considered whether we should not in her case substitute a finding of assault occasioning bodily harm as we are entitled to do on her admission that at an earlier stage she had struck Paulo with a stick. We have decided not to do so for the reason that already she has suffered a period of imprisonment on the murder charge and on account of her conduct in endeavouring to have Paulo released before he received the further injuries. Against the first accused, Victoro, the

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evidence that he caused the death of Paulo is sufficient and his act on the evidence must be regarded as murder. The injuries found on Paulo reveal that the beating he received was calculated, merciless and sustained. His appeal is dismissed. Loza's appeal is allowed and she is acquitted and ordered to be released.

In connexion with appeals from Uganda we observe that there exists a tendency on the part of certain police officers in Uganda to question and even cross-examine accused persons when they appear to make statements. The present case is an instance where the accused persons were subjected to lengthy interrogation by the police officer concerned. This practice is to be deprecated. While it is perfectly legitimate and even necessary to question such accused persons, so as to ensure that what they really mean is recorded, care should be taken to ensure that they are not subjected to cross-examination, as this would be destructive of the voluntary nature of their statements. Another irregularity we observe is that when accused Victoro was making his statement his co-accused Loza was present and asked whether she wished to ask him any questions, a procedure which is without sanction.


G. P. K. $1428 - 400 - 8/51$

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