R. v. Jacob s/o Kayombo, Crim. Sass. 209-Mtwara-69, Preliminary Ruling; 17/4/70; Makame Ag. J.

R. v. Jacob s/o Kayombo, Crim. Sass. 209-Mtwara-69, Preliminary Ruling; 17/4/70; Makame Ag. J.

This is a trial within a trial. The accused stands charged with murder. When the trial had stared, the advocate for the accused objected to two extra-judicial statements the accused is alleged to have made to a Justice of the Peace being admitted in evidence. The accused contends that he did not make the statements as alleged, and that if he did make them he does not recollect having done so. Mr. Eric Mkemwa, who was an ex-officio Justice of the Peace stationed at Songea, says in his evidence the accused made two extra-judicial statements to him, the first one on 11th October, 1968, and the second one ten days later, on 21^st October, 1968. He detailed to this Court all the formalities he satisfied as a justice of the peace on the first occasion. Before recording the accused’s statement, he had sent away the Police and made sure that

there was no-one else within eye-sight or earshot. The accused gave his statement clearly in fluent Kiswahili, which language Mr. Mkemwa understands well. He recorded the statement in English as the accused was giving it. He then read it back to him in Kiswahili. The accused said he understood it and that he was satisfied it was a faithful record of what he had told the Justice of the Peace. Both the accused and the Justice of the Peace signed and dated the statement. Ten days later, the accused was brought to him again. Again he sent the Police out of earshot and eye-sight, and remained alone with the accused, and complied with all the necessary formalities. The accused told him the first statement he made was lies and that he now wished to tell the truth. He said he wanted to have the first statement cancelled and have the second statement he was going to make used in evidence. He then went on the make a statement which was different from the first, which statement Mr. Mkemwa recorded, observing the usual formalities. After the statement was read to him, in Kiswahili, the accused said it was a correct record of what he had stated and he duly signed it. The accuse gave evidence on oath. He says he sometimes suffers from loss of memory for about three days when there is a full moon. He does not remember making a statement to the Justice of the Peace on 11^th October, 1968. He does remember the second occasion he went to the Justice of the Peace and he does remember making a statement there on that occasion. The Justice of the Peace did not read back the statement to him, but he told the accused to sign it, which he did. The statement he made was in fact a series of answers he was giving to questions the Justice of the Peace was putting to him. He does not remember the questions the Justice of the Peace was asking him, but does remember he told the Justice of the Peace the deceased’s son had given him Shs. 1,000/-. This was because the Police had assured him three or four times that he would be released and gives evidence for the Republic if he said that.

            Held: (1) “The onus of satisfying the court that extra-judicial statements are admissible rests with the prosecution.” (2) “Mr. Pardhan, learned advocate for the accused, has submitted that during this trial within a trial, the alleged statements should not have been read at all, and he quoted the case of Ibrahim Ntende v. R. (1953) 20 E.A.C.A. 185. Unhappily, this particular volume does not appear to be available anywhere in Mtwara, so the Court has not been afforded the opportunity of reading the full report and gauging in their context the words learned counsel for the defence quoted from Rosen & Stratton’s Digest of East African Criminal Case Law, 1897-1954 at page 324, which read: “Where extra-judicial statements are challenged by the accused as to their voluntary character, they are not to be read until a definite finding of fact as to their voluntary character has been reached.” However, I have no doubt in my mind that the rule barring such statements from being read “until a definite finding of fact as to their voluntary character has been reached” must refer to a trial at large and not to a trial within a trial. Otherwise, it is difficult to see on what basis a Court would, in a trial within a trial, determine whether or not an extra-judicial statement was voluntarily made, especially when an accused person proposes to deny parts and admit parts of the same statement. I think I am fortified in this my view by the case of Kinyori Karidutu v. R. (1956) 23 E.A.C.A. 480, which fully sets out the procedure to be followed in a trial within a trial. The issue is not specifically mentioned in that case, but the case clearly explains the procedure in so far as it is at pains to ensure that the statements should not be read before

the assessors leave, but it does not say that even after they have left the alleged statements should not be read”. (3) “The first statement is admissible, since it is clear, on the evidence, that it was voluntary.” (4) “Now, the second statement: I can say at the outset that some objections leap to my mind about this second statement, and I shall say what they are. The accused had made a statement on 11^th October, 1968, in which he gave a version of the crime, and then ten days later when he was in remand prison, he says he was taken by the Police who told him what they thought was the true version of the crime, and that if he went and furnished the Justice of the Peace with this other version, he would be released and become a witness for the Republic. He was not particularly clear in this court about this, and at times he was conspicuously and deliberately evasive. However, the first thing he says when he gets to the justice of the Peace, and this according to the Justice of the peace himself, is that his first statement was untrue and that he now wishes to tell the truth. Then, and I think it is significant, the first thing he is recorded as saying in the body of the statement itself is, and I quote: - “The death of the three deceased persons was planned by the elder son of the deceased”. This is the one ‘important’ thing he had to say, which would seem to accord with, and lend some credence to, his claim that he was induced by the Police to go and say this. Then in Court, more significantly still, the Justice of the Peace said the accused asked him to cancel the first statement and that he would wish to have the second statement in evidence instead. Is it possible that he had been promised or made to understand, before he went to the Justice of the Peace, that he would escape from the charge if he told either the ‘truth’ or at least something different from what he had told ten days earlier, when probably the Police had not yet gone far in exploring other possible avenues of investigation? I must hasten to add that I am not for one moment saying hat I believe the accused’s story that he was induced by the Police to change history. What I am saying is that, having regard to the evidence on record in this trial within a trial, I am unable to feel certain that the possibility suggested by the defence can safely be dismissed …. If there was such an inducement, as I am satisfied there might have been, the accused would still have been in its comfortable grip when he reached the office of the Justice of the Peace, especially as such inducement might have been the ‘soft’ inducement of release, and not one of physical violence. And one cannot safely say that the formal assurances the Justice of the Peace gave to he accused an the satisfaction of the Justice of the Peace that the accused was free agent would have necessarily, n the circumstances, removed the effects of such inducement”. (5) “But, in my opinion, there is yet another reason following close on this, why I think this statement should not be admitted ….. As I have already said, and shall repeat again, I am clearly satisfied that Mr. Mkemwa, the Justice of the Peace, did not act with any impropriety, and his honesty cannot be impugned. But what could have been the effect of this nice little request by the accused to the Justice of the Peace on the second occasion – that he wished his first statement to be cancelled and have only the second one admitted in evidence? In examination-in-chief, Mr. Mkemwa said, and I quote:- “He said he wanted to made a statement different from the first one. He said he wanted to do this because the first statement was untrue and that now he wanted to make a true statement. I was satisfied that the accused was a fee agent and that this statement would be voluntary.” In cross-examination, Mr. Mkemwa says: - “I did ask him why he wanted to make another

statement. He said the first statement was not true and that he now wanted to tell the truth. He said he was canceling the previous statement and that he wanted the second one to be used in evidence ……” Mr. Mkemwa’s action was quite alright as far as it went, but cannot one reasonably argue that in the circumstances the accused was under the erroneous impression that Mr. Mkemwa was able and willing to grant him his little request – that the first statement would be cancelled and only the second would be used in evidence? I think one can, and for that reason it can successfully be contended that Mr. Mkemwa was in that sense, albeit unwittingly, inducing the accused, or rather allowing the accused to continue to be in the state of inducement, that he might have got from the Police. I am aware that under section 29 of the Evidence Act of 1967, unlike under the laws of other countries, this statement could still be admitted, but in view of the evidence, the admission of guilt contained in the second statement might well have been untrue. Now, in what sense might such admission be untrue, if the accused had already made another statement admitting complicity in he crime? I think it is in this sense that the first admission relates to the accused’s complicity in the crime in a different degree from the degree in the second alleged admission. I therefore find the second statement is not admissible in evidence”.