Waweru Ng’ang’a v. R., Crim. App. 239-A-69, 5/12/69, Platt J.

 

Waweru Ng’ang’a v. R., Crim. App. 239-A-69, 5/12/69, Platt J.

The appellant was convicted of shop-breaking and theft c/s 296, Penal Code. On the night of 3 May 1969 the shop of Mr. Babla at Arusha was broken into and a considerable number of radios stolen. On 5 May 1969, the police found the appellant on a sisal plantation near Moshi and arrested him. A group of civilians who helped the police to a sisal estate and after three different places had been visited; four radios were discovered in a paper bag which was clearly identified as belonging to Babla. In the result, the appellant was charged and convicted. The appeal turned on whether certain statements made by the appellant were admissible.

            Held: (1) “The appellant’s statements which are in dispute were related by Sergeant Major Elimwaza (P.W. 2) and Special Constable Shabani (PW. 6). The Sgt. Major alleged that after the appellant’s arrest, some civilians had beaten him and told the accused that he must disclose what he had stolen if they should not kill him. The appellant replied that he was not a thief but his friends Cheusi and Focas had stolen radios from Arusha. After this, he was taken to the Police station. Special Const. Shabani related that after the civilians had threatened to kill the appellant, the latter had admitted stealing the radios

and added that he with Focas and Cheusi had broken into the shop at Arusha, and stolen the radios. Pausing there, apart from the discrepancy as to what the appellant had actually said, the learned Magistrate was not entitled to receive the evidence recorded from the Special Constable, by virtue of section 28 of the Evidence Act, 1967 …. [Which reads in part; “No confession, made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate …. Or a justice of the peace …. Shall be proved as against such person”.]  The learned Magistrate was at pains to point out that the alleged confession had been made to the crowd in the hearing of the Police …. It may be that he did not consider section 28 possibly because he thought that the appellant was not in Police custody. But is clear from the evidence of the sergeant Major that he was chasing the appellant and that the crowd had assisted him in arresting the appellant. Indeed it was because the appellant was in Police custody that he was saved from being badly assaulted. Therefore, even if the confession had not been made directly to the Police, it was still made under circumstances as provided in section 28, which profited its admission. In saying so, the distinction must be drawn between what the Sgt. Major under stood the appellant to say which was not a confession, and the statement recounted by the Sp. Const. the evidence of the Sp. Const. should not have been admitted or taken into account. (2) “Then there is the evidence of what the appellant told the Police directly, at the Police Station. He gave the Sgt. Major to under stand that he and his friends had shared but the radios and hidden them in a sisal plantation. It was alleged that he indicated that the radios were at places where they had been sleeping. According to the Sp. Constable, the appellant agreed to take them to the place where he had hidden the radios. It is agreed that the appellant showed them one place where nothing was found, and where according to the Special Constable, the appellant said that they had rested at midday. Then the appellant took them to a second place, where again no radios were found and where the appellant observed that his friend Focas must have removed a radio. The appellant then led them to a third place where after some searching; the Special Constable discovered four radios in a paper bag. The Constable also noted that the appellant had explained that he, focas and Cheusi had shared out the radios.” (3) “To begin with, the appellant’s statements at the Police Station must be considered. Assuming that he said all that he Sgt. Major related, it could be thought that he said all that the Sgt. Major related, it could be thought that the appellant had admitted being in joint possession of the radios which had been shared out, and then hidden. He had already admitted that Focas and Cheiusi had stolen these radios in Arusha. Altogether these admissions amounted, at least, to a confession that he had received property which he knew to be stolen. Although charged with theft, the alternative verdict of receiving stolen property would have followed by virtue of section 187 of the Criminal Procedure Code. Therefore, the statements as understood by the sergeant Major, amounted to a confession to a police officer and were accordingly inadmissible, under section 27 of the Act.” (4) “The evidence of the Special Constable would have amounted to a confession that the appellant had himself stolen the radios which had been hidden and therefore was a fortiori inadmissible.” (5) “It follows from section 31 of the [Evidence Act], that the statements made by the appellant to the Police while he was in Police custody, may be admitted whether confessions or not, so long as they led directly to the discovery of a material fact. The question is whether the appellant’s statements to the Police Officer at the Police Station

could be admitted under section 31, although they would otherwise be inadmissible under section 27 … it was permissible for the Police witnesses to testify that the appellant had offered to show the Police where the radios were hidden, because he took the Police  to the sisal estate where the radios were found. But the additional statements that the radios had been shared out and hidden were not admissible because they did not lead to the discovery. Therefore, all that the learned Magistrate could take into consideration relation to what the appellant had said at the Police Station was that he had offered to show the Police where the radios were.” (6) “There are the statements which the appellant is alleged to have made at the various places in the sisal estate. At the first of these places, he is alleged to have said that he, Cheusi and Focas had rested at midday. That was admissible as the appellant’s conduct under section 10 of the Act. At the second site, the appellant is alleged to have said the Focas must have taken the radio. There was no discovery here, and therefore it could not be admitted as a confession that the radio taken had been that of the appellant himself. It could be admitted if it were understood to be a statement that Focas had been in possession of a radio at that place which he had later removed. It was again a matter of the appellant’s conduct. Finally at the third site, the Special Constable understood the appellant to say that he had the others had shared out redios. That was inadmissible as not leading to a discovery. It was extraneous as already explained.” (7) “It will be seen that whether one takes the evidence of the Sgt. Major or the special Constable …. – nevertheless, all the prosecution had proved was that (a) the appellant had alleged that Cheusi and Focus had stolen the radios; (b) that he would show the Police where the radios were, which led to the discovery of the four radios, and (c) that the appellant  had been in the company of Cheusi and Focas. That being so, it was the learned Magistrate’s task to decide whether the appellant was actually in possession of the stolen radios. The learned Magistrate did so find, but it is quite clear that his judgment was clouded by the volume of inadmissible evidence which he had admitted. Without such statements that the appellant had shared the radios, it is possible that the learned Magistrate might have held that the appellant was merely a friend of Cheusi and Focas having discovered them with stolen property, but that there was no evidence clearly indicating that the appellant had himself hidden the radios or done ay act which showed that he had been in joint or sole possession of them …. At best, the appellant only stood to be a receiver, but on the evidence, I think it quite as likely that he was not involved. The circumstances were suspicious, it may well be that the appellant was involved. But on what remained of the evidence that conviction seemed to me to be too unsafe to support.” Appeal allowed.