Rex v Swandetti (Criminal Appeal No. 92 of 1941) [1941] EACA 56 (1 January 1941)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and HAYDEN, J. (Kenya)

REX, Respondent (Original Prosecutor)

KITUYAN S/O SWANDETTI, Appellant (Original Accused)

Criminal Appeal No. 92 of 1941

Appeal from the decision of H. M. High Court of Tanganyika.

Criminal Law-Confession-Necessity for corroboration of retracted confession. Appellant appealed from a conviction of murder.

Held (31-7-41).—A confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence, consequently such a statement as<br>"I have killed my father accidentally when he tried to strike me" should not have been treated as a confession.

Appellant absent unrepresented.

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Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-No exception can be taken to this conviction, which in our opinion is amply supported by the evidence. There are one or two matters to which we would like to refer. The learned trial Judge held the extra-judicial statement to be a confession. With this we do not agree, for it is contrary to the decision of the Privy Council in Pakala Narayana Swami v. The King-Emperor (1939), 66 I. A. p.

66. At page 81 of the judgment of the Board it is stated, "Moreover a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence". This suffices to show that the extra-judicial statement does not amount to a confession. In the statement, the accused said, "I have killed my father accidentally when he tried to strike me". But even if the statement were regarded as a confession and a confession which was subsequently retracted, which does not appear to have been the case, the learned Judge should not have directed himself that corroboration was essential to its acceptance (vide Rex v. Sinoya (1939) 6 E. A. C. A. 155). There is, as it happens, evidence additional to the statement to which we have referred. The appeal is dismissed.