Summary

The two appellants were convicted by the High Court of the murder of a girl who was found dead with signs of being raped and brutally manhandled. The High Court convicted the first appellant on the evidence of a caution statement he made to the police in 1979 after his arrest implicating himself and the second appellant, corroborated by other pieces of evidence — a visit he made to the deceased's home before her disappearance, a blood-stained pair of shorts he was wearing when he made a confession to P.W.3 that he had raped a girl the previous night though not by the name of the deceased. The second appellant was convicted on the strength of the first appellant’s caution statement to the police supported by the second appellant’s visit to the deceased’s home, together with a blood-stained belt recovered from him. It was argued in the Court of Appeal whether the caution statement made to a police officer in 1979 was admissible in evidence as a confession in the light of the amendment to S.27 of the Law of Evidence Act, 1967, which became operative on 1st December, 1980. Counsel for the first appellant also argued that the trial court erred in not considering the defence of intoxication which if accepted would have the effect of negativing malice aforethought. Held: (i) the effect of the 1980 amendment to S.27 of the law of Evidence Act, 1967, was to make confessions voluntarily made to a police officer by an accused person admissible as evidence against that person; (ii) the admissibility of a confession made by an accused person has to be determined with reference to the date when it was made; (iii) the confession made by the appellant to a police officer in 1979 (i.e., before the 1980 amendment to S.27 of the Law of Evidence Act, 1967) was inadmissible in evidence, the amendment not having a retrospective effect; (iv) the first appellant was properly convicted on the strength of his confession to P.W. 3 corroborated by ample evidence; (v) The conviction of the second appellant was not based on sufficient evidence once the first appellant’s confession to the police implicating him has been ruled inadmissible; (vi) The brutal nature of the killing showed that the appellant had malice- aforethought. 1st appellant’s appeal dismissed. 2nd appellant’s appeal allowed. No case referred to. AA - Shayo for the first appellant. Z. Alli for the second appellant M.'F. Mtingele for (he respondent.

Keywords

Criminal law — malice aforethought — Brutal nature of the killing — Whether malice — aforethought proved Evidence — Confession — Confession to police officer — Admissibility in evidence