Mkareh v. R. Crim. Appeal (E. A. C. A.) 151-T-70; 27/10/70; Spry, Ag. P., Lutta J. A. & Law Ag. P.

 

Mkareh v. R. Crim. Appeal (E. A. C. A.) 151-T-70; 27/10/70; Spry, Ag. P., Lutta J. A. & Law Ag. P.

The appellant was convicted in the High Court of Tanzania of the murder of his wife. The most important evidence against him was that of a neighbour, a corporal of police; who testified that the appellant had called him, said “ I have killed; go in and see “and showed him the dead body of his wife. At the trial the advocate for the appellant objected that this evidence was inadmissible in view of the provision of Section 27 of the Tanzania Evidence Act 1967 which states: “27. No. confession made to a police officer shall be proved as against a person accused of an offence …….” The trial judge (Georges C. J.) admitted the statement holding that it did not amount to a confession and that it was not made to the witness in his capacity as a police officer.

            Held: (1) [Per Spry Ag. P. & Lutta J. A.] “The learned Chief Justice said “It is my view that a statement should be regarded as a confession only when it contains an admission of all the ingredients of the crime with which the accused is charged so that an accused person could be properly convicted on his own plea had he in answer to the charge made the statement which is alleged to be a confession.” We think that is too restrictive a definition. When taking a plea of guilty a court requires to be satisfied that the accused person appreciates and admits all the ingredients of he alleged offence, because only in that way can the court be satisfied at least where the accused person is unrepresented, that he is truly admitting the offence; we think that to apply the same standard to confessions for the purpose of section 27 and other sections of the Evidence Act would be to render those provisions of very little effect. We think the true test is whether the statement is such that in the absence of my explanation or qualification and in the particular circumstances, it points clearly to the guilt of the maker. Thus such statements as “I killed him” and “ I took the money”, unaccompanied by any exculpatory words, and uttered in relation to a person who has died of unnatural causes or to missing funds, as the case my be, are, in our view,

indicative of guilt and therefore confession.” (2) “As regards the second proposition, we think the warding of section 27 is so clear that it affords no scope for interpretation or interpolation. What the learned Chief Justice did, in effect, was to interpolate the words “acting in his capacity as such” after the words “police officer”, with respect we do not think he was entitled to do so …..where the admissibility of a statement is challenged on the ground that it is excluded by section 27, and it is held to amount to a confession, the simple test is – “was or was not the person to whom the statement was made a police officer?” if the answer is “yes”, the statement must be excluded. (3) Appeal allowed