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IN THE SUPREME COURT OF UGANDA
AT MENGO
Coram : Oder. Tsekooko, Karokora, Mulenga, and Kanyeihamba JJ.S.C.
Criminal Appeal No. 11 of 2001
Between
KEDI MARTIN ::::::::::::::::::::::::::::::::::::::
APPELLANT
And
UGANDA
::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
(Appeal from judgment of the Court of Appeal (Kato. Engwau and Kitumba
JJ.A) at Kampala, dated 27"' February. 2001, in Criminal Appeal
No. 12 of
1999.)
REASONS FOR THE COURT'S DECISION.
We heard this appeal on 18th March 2002. and dismissed it for lack
of merit. We reserved our reasons for the decision and now proceed to give
them.
The appellant was convicted by the High Court, for the murder
of his step- father, Dongan Victor. He appealed to the Court of Appeal
against
the conviction. His appeal was dismissed, hence the second appeal to this
Court.
The facts on which his conviction was based are brief. On
31st March 1998, the deceased went to the market and did not return
home that day. The following morning, the appellant went to one Opedor.
LC1
Secretary for
Defence, who gave evidence at the trial as PW2. and reported to him that he
had killed his step-father the previous day. Thereupon
Opedor arrested the
appellant and took him to the home of the LC1 Chairman, accompanied by other LC1
officials and villagers. On
receiving a report from Opedor, the Chairman, one
Ajolo Emmanuel, who also wave evidence at the trial as PW3, talked to the
appellant,
and the latter reiterated that he had killed the deceased because he
was a wizard who had killed his (appellant's) people. He disclosed
that he had
way-laid the deceased on the way from the market, and had killed him by
strangulation. He also described the place where
he had left the body. As a
result of that information, the deceased's body was discovered at the place the
appellant had described.
It was found in the condition, he had mentioned,
notably with a broken neck. At the trial the two witnesses testified to those
facts,
but though the appellant had pleaded not guilty, he did not challenge the
admissibility of what was clearly a confession to the crime,
nor were the
witnesses cross-examined on it. In the unsworn statement in his defence,
however, the appellant denied killing the deceased,
and asserted that after
being arrested he tried to deny the offence but when he was beaten by PW2 and
one Agama. he admitted it.
The learned trial judge disbelieved him. and accepted
instead, the prosecution evidence that he had confessed to the murder, and
found
that the confession was true. The Court of Appeal upheld the
findings.
The appeal to this Court was on one ground, namely:-
"That the learned Appellate Justices erred in law and fact when they based their conviction on an alleged confession whereas the confession was not made as required by law and therefore should have been ignored."
The thrust of the brief submission by Ms Musoke, counsel for the appellant,
was that the report made by the appellant to Opedor PW
2, and later to Ajolo
PW3, amounted to a confession, and that because it was made to LC officials
without compliance with the law,
it ought not to have been admitted in evidence.
Counsel criticised the trial court particularly for holding, that in regard to
receiving
confession from an accused person. LC officials were in the same
position as administrative officials, rather than as police officers.
She
concluded that the courts below erred in basing the appellant's conviction on
that confession. In reply to this, Mr. Elem-Ogwal,
Principal State Attorney,
conceded that an LC official is a person in authority, but submitted that the
test of admissibility of
a confession made before such a person, is whether or
not it was made voluntarily. He contended that in the instant case the
appellant's
confession was clearly made voluntarily.
The basic law
governing the admissibility of a confession made by a person accused of a
criminal offence, as evidence in his or her
trial, is contained in sections 24,
25 and 29A of the Evidence Act. Needless to say at the out set that the said law
comes into play
when an accused person retracts or repudiates a confession
attributed to him or her. Section 24 renders inadmissible, any confession
made
by a person in custody of a police officer, unless it is made in the immediate
presence of a magistrate or of a police officer
of or above the rank of
Assistant Inspector. It does not apply to a confession made by a person who is
not in custody, or who is
in the custody of anyone other than a police officer.
See Babvebuza Swaibu vs Uganda, Cr. App. No. 47 of 2000,
(S.C.) (unreported) which we decided in the same session. Section 25.
however, applies to all confessions by accused persons wherever
and whenever
made, and renders inadmissible, any confession which is not shown to have been
made voluntarily. Section 29A on the
other hand is permissive. It renders
admissible, notwithstanding of the provisions of sections 24 and 25, so much of
any information,
(including a confession), received from an accused person, as
distinctly leads to the discovery of a material fact which is disposed
to at his
trial as so discovered. The ultimate objective underlying these provisions is to
avoid receiving in evidence, and reiving
upon, false confessions. This is
underscored by the provisions of section 29A whose rationale must be that the
discovery of the 'fact'
confirms the truth of the 'information'; see
Babvebuza Swaibu vs Uganda, supra).
For that reason the court
retains a discretion not to admit a confession in evidence, and if it admits it.
not to rely on it. if it
is not satisfied that it is true. Thus section 25
which excludes confessions made under undue influence, specifically refers to
influences which in the opinion of the court are calculated to cause untrue
confession to be made. It reads:-
"25. A confession made by an accused person is irrelevant if the making of the confession appears to the court, having regard to the state of mind of the accused person and to all the circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of the court to cause an untrue confession to be made." (emphasis is added)
Even under section 24, the mere
presence of a magistrate or a police officer of the stipulated rank is not
sufficient to make the
confession admissible in evidence. It must be proved that
it was made voluntarily. For that purpose the Minister is supposed to make
rules
of procedure for recording statements from accused persons. Because the
envisaged rules have not been made, in practice the
courts have adopted
administrative guidelines set out by the Chief Justice to ensure that
confessions to be used in evidence, are
made voluntarily. See Festo Androa
& Another vs Uganda, Cr. App. No. 1 of 1998 (SC)
(unreported).
In the instant case, the applicable provisions were sections 25 and 29A. The learned trial judge was alive to that when he said, referring to section 24:-
"That section does not apply to confessions made to other authorities
like Chiefs as Police Officers. A confession made to a Chief
is admissible and
may be acted upon provided that it has not been promised (sic) by
inducement, threat or promise in terms of section 25 of the Evidence
Act."
The learned judge referred to section 29A and went on to observe and hold:-
"PW2 Opedor, PW3 Ajolo Emmanuel testified that following the confession of the accused the body of the deceased was found lying with a twisted neck at the very place where the accused had told them he had killed the deceased. In these circumstances the accused can not successfully argue, and which he did not in any event, that the confession was extracted contrary to the provisions of sections 24 and 25 of the Evidence Act. "
Substantially, that is correct. The only aspect which caused us some concern relates to case law. It is well settled that a court should not base a conviction on an uncorroborated retracted confession, but may, if it cautions itself about the danger of doing so. See Tuwamoi's vs Uganda (1967) EA 84. In the instant case the learned trial judge did not direct his mind to the fact that the appellant's confession was retracted. Indeed, in the notes for summing up to the assessors, he appears to allude to the confession as neither retracted nor repudiated. Not surprisingly therefore, he did not caution himself on the danger of reiving on it. We had no doubt, however, that the appellant retracted the confession when he said to the court that he admitted the offence only when PW2 and another beat him. The Court of Appeal on the other hand, appears to have taken the view that the confession was corroborated. The learned Justices of Appeal said :-
"....it was the appellant who, on his own, admitted voluntarily to both PW2 and PW3 that he had killed the deceased. He described the manner in which he killed him and the place he dumped his body to both witnesses in detail as an insider (sic). We find that the evidence of both PW2 and PW3 corroborated that of the appellant when he admitted having killed the deceased by strangling him."
With due respect, we think that the last sentence is a misdirection. The only
evidence of the confession, which is the evidence that
required corroboration
because the confession was retracted, was the evidence of PW2 and PW3 to the
effect that the appellant confessed
to the crime. Corroborative evidence would
be some independent evidence which tends either to confirm that the appellant
made the
confession, or to otherwise implicate the appellant in the commission
of the offence. See Cpl Wasswa & Another vs Uganda Cr. App.
No.48 of 1999 (SC) (unreported) and R vs Baskerville (1916-17) All
ER Rep.38.
The finding that the body was as described to the
witnesses in the confession, is not corroborative evidence as so defined. We
hasten
to add, however, that it speaks volumes for the credibility of the
confession, on the premise that, only a person who participated
in, or was privy
to, the killing, could have given the details that the appellant gave to the two
witnesses. That, combined with
the fact that the appellant volunteered the
information to PW2 without any prompting at all, leads to the irresistible
conclusion
that the confession was true, and to the inference of the appellant's
guilt.
We were satisfied that, in the circumstances, neither the non-direction on
the part of the learned trial judge, nor the misdirection
on the part of the
Court of Appeal, both of which we have discussed, occasioned any miscarriage of
justice. It was for those reasons
that we dismissed the
appeal.
Dated at Mengo this 17th day of June 2002
A.H.O. ODER,
JUSTICE OF THE SUPREME
COURT.
J. W. N. TSEKOOKO, JUSTICE OF THE SUPREME
COURT.
A.N. KAROKORA, JUSTICE OF THE SUPREME COURT.
J.N. MULENGA,
JUSTICE OF THE SUPREME
COURT.
G.W. KANYEIHAMBA, JUSTICE OF THE SUPREME COURT.
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