Ezekia s/o Simbamkali and another v. R., E.A.C.A Crim. App. 30-DSM-72, 19/7/72.

 

Ezekia s/o Simbamkali and another v. R., E.A.C.A Crim. App. 30-DSM-72, 19/7/72.

            SPRY, V. P. The two appellants were convicted of murder and sentenced to death. They were alleged jointly to have killed on Zachariya s/o Simbamkali

            The case against the first appellant, Ezekia s/o Simbamkali, a brother of the deceased, depended almost entirely on a confession he is alleged to have made to a Justice of the Peace, Allen Mbuke. No question was raised by the advocate for the appellant, Mr. Patel, when this witness began to testify, indeed, it would seem from the record as a whole that he cannot have received proper instructions. The witness is recorded as saying that Ezekia was taken to his office to make a statement. He went on “I recorded the transaction as per notes I took which I produce” and these were admitted as Exh. P.1. This was gravely irregular for a start. The witness might have been permitted to use the notes to refresh his memory but they were not, in themselves, admissibly in evidence.

            The learned judge then asked Mr. Patel if he wished to object to the introduction of the statement and received a negative reply. Ezekia himself however, said that he had made the statement because he was beaten. The learned judge rightly decided to hold a trial within a trial. Ezekia was called to give evidence, although Allen Mbuke had given no evidence as to the circumstances in which the statement was made, the defence had had no opportunity to cross-examine him and the interpreter who had acted in the matter had not been called.

            When Ezekia had given evidence in chief, the learned judge gave his ruling. So far as the record goes, Ezekia had not been cross-examined and had not been asked if he wished to call an witness. The learned judge remarked that the Justice of the Peace had given evidence that he had been satisfied Ezekia was a free agent and had no recent marks of injury on his body. This, according to the record, is not true; presumably, it is a reference to the “notes”. He concluded that as Ezekia could not name or identify the people he alleged had beaten him “and in view of the unreasonableness of his story”, the confession was to be admitted.

            With respect we think these grounds are unsatisfactory. If an ordinary, humble, citizen is beaten by police or local authority askaris it is very likely that he would not know the names of the individuals involved and although the beating of prisoners is most reprehensible, we know that it does happen and therefore that such allegations cannot lightly be dismissed.

            What is, however, much more serious is, as Mr. Lakha, who appeared for the appellants, submitted, that it is impossible, from a perusal of the record, to avoid the conclusion that the learned judge placed the burden on Ezekia of proving that his statement was not voluntary. It is well established that where the prosecution seeks to rely on a confession, the burden is entirely on the prosecution to prove that it was voluntary. This was a most grave error.

            It ma be desirable to set out again the procedure to be followed at these trials within trials. Immediately it is known that he admissibility of a statement is to be challenged, the assessors should be asked to retire. This should whenever possible, happen before any mention of a statement has been made, the usual procedure being for defence counsel to inform the court that question of law needs to be considered. The prosecution then calls all the witnesses available to prove that the statement was made voluntarily and according to law, including the person to whom the statement was made, the interpreter, if any, and any other persons who can give relevant evidence. The defence has the right to cross-examine these witnesses in the usual way. The accused then has the right to give evidence or to make a statement from the dock, and to call witnesses, whose evidence will be limited to the issue of the admissibility of the statement. On this issue, the burden of proof is wholly on the prosecution the judge gives his ruling in the absence of the assessors, who then return to court. If the statement has been held to be admissible, the prosecution evidence regarding it is given again and the witnesses are again cross-examined, because, although the issue of admissibility has been decided, the circumstances in which the statement was taken may affect the weight to be attached to it and for this reason the assessors are concerned with them.

            If this confession is excluded, as we think it must be, very, little evidence against Ezekia remains. It appears that, after the body of the deceased had been found, some three months after the murder, Ezekia handed to the police a hammer and a rungu which were in his house and which are alleged to have been used in the killing even on this mater, there is some conflict of evidence between two police witnesses. Ezekia was also implicated in a confession made by his co-accused and ultimately retracted. It is well established that such a confession can only add the final assurance to an already strong case. It could not serve to establish common intent and if Ezekia’s confession is excluded, there is no substantial evidence to prove any common intent and the only direct evidence is that Ezekia entered the house of the deceased after the latter had been assaulted by the second appellant and received what may well have been the fatal wound

            Ezekia elected to make an unsworn statement from the dock. In his summing-up to the assessors, the learned

Judge described this as adoption of his earlier confession. With respect, we cannot agree. We do not, of course, know the actual words he used in his own language but as interpreted and recorded we think the substance of his statement was, that as the court had accepted the alleged confession it was useless for him to say more.

            In view of the apparent misdirection on the onus of proof in the trial within a trial, and the lack of evidence that the alleged confession was voluntary, and the paucity of other evidence against Ezekia, it would clearly not be safe to allow his conviction to stand. The case against him raises a very grave suspicion, but that is not enough. His conviction is quashed, and the sentence passed on him is set aside.

            [The appeal of the second appellant, Iddi s/o Mangula, was dismissed].