LAW23 2 EVIDENCE Ca se No tes Set 2

(Topics 4 -6 )

4 . Co rro bo ra tio n

DPP v Hester

LORD DIPLOCK (at 245):

“an examination of the basic 19 th century cases makes it plain
that in judgments ‘corroboration' was not used in other sense
than ‘confirmation'

DPP v Kilbourne

Lord Hailsham opined:

“The word ‘corroboration' by itself means no more than

evidence tending to confirm other evidence. In my opinion,
evidence which is (a) admissible and (b) relevant to the evidence
requiring corroboration and, if believed, confirming it in the
required particulars, is capable of being corroboration of that
evidence and, when believed, is in fact such corroboration.”

R v Baskerville

In this case, Baskerville had been convicted of having

committed acts of gross indecency with two boys. These boys
were accomplices because they were freely consenting to the
acts and there was no use of force. Lord Reading CJ defines
“corroboration” as follows:

“We hold that evidence in corroboration must be independent

testimony which affects the accused by connecting or tending to
connect him with the crime. In other words, it must be evidence
which implicates him, that sis, which confirms in some material
particular not only the evidence that the crime has been
committed, but also the prisoner committed it.”Th e learned
Chief Ju stice said –

"There is no doubt that the uncorroborated evidence of an

accomplice is admissible in law…but it has long been a
rule of practice at common law for the Judge to warn the
jury of the danger of convicting a prisoner on the
uncorroborated testimony of an accomplice or
accomplices, and in the discretion of the Judge should
point out to the jury that it is within their legal province to
convict upon such unconfirmed evidence…. this rule of
practice has become virtually equivalent to the rule of
law….if after the proper caution by the Judge the jury
nevertheless convict the prisoner, this Court will not quash
the conviction merely upon the ground that accomplice's
testimony was uncorroborated"

It was stated as a principle, that no piece of evidence amounted

to corroboration unless it came from a source independent of the
witness to be corroborated, and confirmed not merely the
general truthfulness of the child’s evidence, but also the truth of
that part of its evidence that implicates the accused with the
offence. However, medical evidence that the child has been
sexually assaulted does not usually amount to corroboration
where someone other than the accused could have committed
the offence. But where the accused admits that he was with the
child, but denies committing any offence, the medical evidence
would be very relevant.
Fu rth er, it was held that where on a trial of an accused person
an accomplice gives evidence against him, the corroboration
that the common law requires is corroboration in some material
particular tending to show that the accused committed the
offence charged. It is not enough that the corroboration shows
the witness to have told the truth in matters unconnected with
the guilt of the accused.
R v James

In James v The Queen (1970) 55 Cr App Rep 299, a rape case,

the Privy Council held that the complainant’s evidence of sexual
intercourse, her lack of consent and the identity of the man
concerned all needed to be corroborated and the jury should be
warned that in all these respects it was dangerous to convict
upon uncorroborated evidence. The breadth of that requirement
gave rise to practical difficulties. The defendant may admit that
he had had intercourse with the complainant; he may not dispute
anything except lack of consent. He may, as the defendant did in
the present case, simply say that it was not him and rely upon
the assertion of an alibi without challenging her evidence in any
other respect. Is the judge to tell the jury that the defendant’s
acceptance or admission of those parts of the complainant’s
evidence corroborates her evidence? Or should the judge adapt
his summing-up to the actual issues raised by the evidence given
at the trial?

Held: At common law a judge was required to warn a jury that

it would be dangerous to convict on the uncorroborated
evidence of a victim of a sexual assault. This common law
requirement was fully enunciated by their Lordships’ Board
herein. Further, the failure of the trial judge to tell the jury that
there was no evidence capable of amounting to corroboration
was a serious misdirection.

The trial judge, having defined corroboration as "independent

evidence which confirms in some material particular not only
the evidence that the crime has been committed but also that the
prisoner committed it" told the jury "the doctor seems to me to
corroborate the complainant that intercourse had taken place. It
is a matter for you. Whether you regard the doctor's evidence, in
relation to the finding of the semen on these various garments
and on these various objects, whether it amounts to
corroboration, is a matter for you. So that, as I said before, if
intercourse had taken place, the question is, was it without
consent of the complainant Elsada Hall? The next question
would be, was the prisoner the man?"

The Privy Council decided -

"True it is that the medical evidence and the evidence of what

was found on Miss Hall's clothing and on the articles taken from
her bed confirmed her testimony that intercourse with her had
taken place on her bed, but there was no medical evidence that
the intercourse had taken place without her consent; and the
judge directed the jury that, if they accepted that evidence, it
could amount to corroboration in the sense in which he had
already explained to them that the word was to be understood.

In their Lordships' view, this direction was entirely wrong.

Independent evidence that intercourse had taken place is not
evidence confirming in some material particular either that the
crime of rape had been committed or, if it had been, that it had
been committed by the accused. It does not show that the
intercourse took place without consent or that the accused was a
party to it. There was in this case no evidence capable of
amounting to corroboration of Miss Hall's evidence that she had
been raped, and raped by the accused. The judge should have
told the jury that. His failure to do so was a serious misdirection,
so serious as to make it inevitable that the conviction should be
quashed."

R v Christie

This case laid down what is known as the Christie discretion, a

common law principle that allows the courts to exclude
admissible prosecution evidence that is “more prejudicial than
probative”. This principle was laid down by Lords Moulton &
Reading. It is clear that for the disputed evidence to be
excluded, it is insufficient to merely show that its prejudicial
effect is greater than its probative value. The evidence must
have relatively slight probative value but substantial prejudicial
effect.

There is no rule of law that evidence of statement made in

presence and hearing of accused not admissible as having
bearing on his conduct unless he accepted the statement.
Historically, the Christie discretion was a tool that English
judges employed to press counsel not to lead “unfair” evidence.
Whilst Christie is an exercise in judicial discretion, it is for the
defence to first raise the point by clearly identifying the lack of
probative value and the prejudicial effect alleged. The judge is
not obliged to raise a point of discretionary exclusion if the
defence does not do so.

R v Whitehead

The accused was charged with having unlawful intercourse with

a girl under 16. The girl mentioned the incident for the first time
weeks later when she was pregnant. Lord Hewart CJ rejected the
argument that her conversation could amount to corroboration.

LORD HEWART, Chief Justice: (at 102)

“the girl cannot corroborate herself, otherwise it is only
necessary for her to repeat her story some twenty-five times to
get twenty-five corroborations of it.”

Lucky Magoge v The State

Th is app ellant was convicted of the attemp ted

d efilemen t of a g irl aged elev en years. Acco rd ing to
the co mp lain ant, th e app ellan t chased her and
caught h er, pu lled h er do wn , re mo v ed h er
un derp an ts and lay on top of her. Sh e sho uted fo r
h elp but th e app ella nt p ut h is h and ov er h er mo u th .
Th e appellan t go t off of h er. Upo n hearing her sister
call ing fo r h er she went ou t and met th e sister . She
was crying and told h er sister that the app ellan t had
"h ad s ex with me". Th e sister said th at sh e met th e
co mp lain an t who was cryin g. Sh e asked th e
co mp lain an t wh at h ad h app ened and th e co mp lain an t
alleged th at th e app ellant h ad re mo v ed h er pan ties
and inserted h is p en is into h er v agina. Th e sister
said th at th e comp lain an t was du sty and h ad sp erm
on h er thigh s and p an ti es. Th e do ctor who exa min ed
the co mp lain ant fo und no b ru ises, woun ds o r
inju ries. Acco rd ing to her repo rt sh e said th e
co mp lain an t's hy men was intact an d th at app arently
the man who attemp ted rape d id no t enter th e
co mp lain an t.
Th e trial mag istrate attache d great weigh t to th e
eviden ce of th is witn ess as to the co mp lain ant's
cond ition as "prov ing " the comp lain an t's
cred ib ility."

Held : (a ) It is trite law th at evidence b y ano th er

witn ess of a child 's d istress immed iately after a
sexu al offen ce may co rrobo ra te th e child's evidence.
Ho wever,
(b ) Th e distress sho wn b y the co mp lain an t mu st no t
b e ov er emp h asised . Dep end ing on th e
circu mstan ces of each case, little weig ht, if an y,
ou ght to be given to th at eviden ce because it is all
p art and p arcel of co mp lain t ( the app ellant av erred
h e h ad held the child and twisted h er arm an d mad e
h er cry). Th e girl mak ing th e co mp lain t mig ht well
b e simu lating distress.
Ko ma ne v The State

Th e trial mag istrate conv icted the accu sed on the

un co rrob orated evid en ce of an acco mp lice withou t
warning h imself of th e d ang er of so d oin g. The
eviden ce was th at th e ap pellan t an d a co -wo rk er
took p lan ks f rom th eir place of e mp lo ymen t, wh ich
they later so ld with to one man with the h elp of two
o th ers. The mai n eviden ce again st the a pp ellan t was
that of th ese three men and h is acco mp lice, th e co -
wo rk er. Fu rther, th e man to who m th e plank s h ad
b een so ld h ad been unable to id en tif y the appellant,
on ly iden tif ying acco mp lice.
O’Brienn Quinn -
“ Th e Eng lish law o n th e sub ject is, as was
stated in Da vies v. D.P.P . (1954 ) A.C. 37 8; 38
Cr. App . R. 11 ; that un co rroborated evid en ce of
an acco mp lice is ad missible in law; but wh ere
an acco mp lice g iv es evid en ce fo r the
p ro secu tio n it is th e duty of the jud ge to warn
the ju ry that, although th ey ma y conv ict on h is
eviden ce, it is d ang erou s to do so unless it is
co rrobo rated .
Th is ru le, althoug h a ru le of p ractice h as no w
the fo rce of a ru le of law; an d where the judge
f ails to warn the ju ry in acco rd an ce with this
ru le, the conv iction will b e qu ash ed , even if in
f act th ere be amp le co rrob o rativ e evid en ce…”
And
“ In Rex v. Thielke (19 18 ) AD 37 3 In nes C.J.,
b efo re Da vies v. D.P.P. (1 954) A. C. 378 , said
that the main diff erence b etween th e law of
Sou th Af rica and th at of Eng land on the sub ject
 was th at S o uth Af rica substituted a d efin ite ru le
of law fo r th e Eng lish Practice. An d he went on
to say -
"If th e sing le ev id ence of the acco mp lice
stands alone in incrimin ating th e accused ,
there can not b e a con viction un less there is
o th er co mp etent ev id en ce that the cri me
h as b een co mmitted. But if th e evid en ce of
the acco mp lice is co nfirmed i.e. is
co rrobo rated in so me material resp ect, th en
a co nviction may p rop erly fo llo w. In o th er
wo rds conf irma tion ex cludes th e op eration
of the p ro viso and the conv iction is th en
b ased no t on the single evid ence of th e
acco mp lice bu t upo n th at ev iden ce p lus
co rrobo rativ e ev id ence".”
Held :
(1 ) Althoug h s. 239 of th e CP & E lays do wn in
con cise ter ms wh at the law is as regard s acco mp lice
eviden ce, it does no t exclud e the En glish Practice;
n amely th at judg e o r mag istrate shou ld warn h imself
of the d ang er of convictin g an accused p erson on
the ev id ence of an acco mp lice in th e absen ce of
co rrobo rativ e ev id ence imp licating the accu sed
p erso n.
(2 ) Th at wh ere a mag istrate o r judg e f ail s to warn
h imself , th e conv iction sh ould, on app eal, be
qu ashed u nless the p ro viso to section 32 2 of the CP
& E is ap plied.
. (i) S ection 23 9 of the CP & E do es n ot p lace an
ob ligation upon a trial mag istrate to caution
h imself of th e d ang er of co nvicting on th e
un co rrob orated evid en ce of an acco mp lice. Th is
is a ru le th at g rew u p in coun tries wh ere trials
 b y ju ry were h eld .
. (ii) It is no t necessary fo r t h e state to satisf y the
cou rt th at th e acco mp lice is who lly reliab le in
ev ery respect - Rex v . Kristu samy.

M ona geng v The Sta te

Th e appellan t was charg ed b efo re a mag istrate with

the off en ce of co mmo n assault and rap e. At th e trial
the co mp lain ant and th ree o ther persons g av e
eviden ce fo r the p rosecution . Th e on ly direct
eviden ce of in terco u rse was that of the co mp lain an t.
Held: (1 ) th ere were certain typ es of witn esses
who se eviden ce mu st b e reg arded as su spect and
mu s t b e app ro ach ed with particular cau tion; amo n g
such was a co mp lain an t in a sexu al case. In. su ch a
case th ere was po tentially a d ang er of false
incrimin ation , and b efo re a trial cou rt cou ld safely
conv ict on the testimo n y of such a witn ess it mu st
satisf y itself that that d ang er h ad b een ex clud ed .
Co rrobo ration of su ch ev idence was on ly requ ired if
the witn ess requ irin g co rrob oration was otherwise
cred ib le. If his eviden ce was no t cred ible, th e
witn ess's testimo n y shou ld be rejected and th e
accu sed acqu itte d . The mag istrate in th e p resen t
case f ailed to app reciate that believin g th e
co mp lain an t was o nly th e f irst stage of th e enqu iry
and that th ere was a secon d stag e of a qu ite
d ifferen t ch aracter. A susp ect witn ess case, in wh ich
a cau tio nary rule mu st b e a pp lied , was d ifferent
f ro m an o rd inary case in which the d ecisio n wou ld
tu rn on the f ind ings as to cred ibility, there mu st b e
so meth ing mo re th an was req uired in th e o rd in ary
case to satisf y the trier of fact that th e d ang er of
f alse incrimin ation h ad b een elimin ated . This, th e
trial mag istrate failed to do . S . v. Mup fudza app lied .
(Dendy -Young d issen tin g )

Sta te v Cho kwe and Ano ther

Th e accused were conv icted of mu rd er of a ch ild .

Th e chief witness called b y the State was th e wif e
of the f irst appellant and the step mo ther of the
child . Th ere can h e no dou bt th at if ind eed the ch ild
was mu rd ered sh e was an accomp lice and sh e was so
regarded b y th e trial cou rt. The learned Chief
Justice was fu lly aliv e to the co rrect app ro ach to
acco mp lice evid en ce and to the necessity fo r the
app lication of th e so -called "caution ary ru le" to
such ev id ence. Th e conclusion at which th e trial
cou rt arrived was that t h e eviden ce of the ch ief
witn ess, altho ugh b y no mean s entirely satisfacto ry,
was b asically tru e an d was n ot f ab ricated .
Counsel f or th e d efen ce strongly attack ed th e
finding of th e learn ed Chief Ju stice with regard to
the credib ility of the ch ief witn ess an d gav e a
nu mb er of ex amp les of contrad ictions as well as
un tru thfuln ess in her ev idence.
Held : (1) It is a matter of commo n ex perience th at
an acco mp lice is often un tru thfu l in po rtions of h is
eviden ce, th at h e seeks to mini mize his own ro le in
the cri me and th at it mu st be very rare in deed that it
can be said th at th e ev id en ce of an acco mp lice is
who lly satisfacto ry.
(2 ) Th e Judg e in the Cou rt a quo fu lly app reciated
and took th ese matters into accoun t, and was
con cern ed with the n ecessity fo r co rrobo rat ion .

Bony ong o v The Sta te

A gang of men b rok e into a shop and sto le a nu mb er

of thin gs f ro m the shop . Th e app ellan t was arrested
and charg ed with shop b reaking and thef t. The
p ro secu tio n alleg ed th at th e app ellan t was on e of
the men who sto le f ro m th e s hop . In suppo rt of its
case, th e prosecution called three me mb ers of the
g ang . Each alleg ed that th e app ellant was on e of
their g ang . The app ellant was conv icted . On app eal
ag ain st conv iction , th e main issue fo r the
consid eration of th e cou rt was wh eth er a s a matter
of law on e acco mp lice could co rrobo rate ano th er.
Held : The ev iden ce of on e acco mp lice could b e
treated , in app rop riate circu mstan ces, as
co rrobo ration of anoth er accomp lice. Prov ided th e
trier of f act app ro ached th e co rrob oratin g
acco mp lice's ev id ence with caution and p rov id ed
that h is evid ence cou ld b e safely relied on , it wou ld
b e un realistic blind ly to disregard it fo r all
co rrobo rativ e pu rpo ses. In th e instant case th e trial
mag istrate was entitled to reg ard the ev idence of th e
acco mp lices as b ein g cap able of co rrobo rating each
o th er. In d ealing with the ev iden ce, the learned
sen io r mag istrate co rrectly d irected hi mself as to
ho w the ev idence of an acco mp lice shou ld b e
app ro ached.
Sta te v Secho ni and Ano ther

Th e two App ellants had been con victed of

mu rd ering a b ab y. On e of th e witn esses f or th e State
was a ch ild . The co rro bo ration of th e child 's
eviden ce was of a con tradictory n ature. As there
was no evid en ce ag ainst on e of th e two Accused at
the end of the State case sh e should have b een
d isch arged, b ut was not d isch arg ed . Sh e was,
ho wev er, imp licated b y the evidence of h er co -
Accu sed.

Doy le J .A. - Eng lish law p rov id es that wh ere the

un swo rn ev id ence of ch ild ren is ad mitted th e
accu sed "sh all no t b e liab le to b e co nvicted un less
the ev id ence is co rrobo rated by so me o th er material
eviden ce in suppo rt th ereof imp licating h im."
Wh ilst th is do es n ot d ire ctly mak e su ch eviden ce
inad missible it h as the eff ect of mak ing it
inad missible un less it is so corrobo rated , since a
finding of guilty cannot b e b ased upon it. Th e
Ro man -Dutch po sitio n, as h eld in R v. Man da is th at
the ev id ence of you ng ch ild ren should be treated in
the sa me way as th at of an acco mp lice, it being
po in ted o ut that th e imag in ativ en ess and
sugg estib ility of child ren are on ly two of a numb er
of elemen ts th at requ ire th eir eviden ce to b e
scru tin ised with care a mo un ting al mo st to suspicion .
On the issue of wheth er th e evidence of an
acco mp lice mu st b e tak en in to accoun t the learned
judg e pointed ou t th at th e law of South Af rica
p rov id ed that su ch evid en ce cou ld b e tak en in to
consid eration wh ereas in E nglan d it was h eld in th e
case of R v. Abbo tt th at wh ere a person ough t to
h av e been d isch arg ed at th e clo se of the p ro secution
case, it was in co mp etent to conv ict that accused
up on th e evid en ce later giv en b y a co -accused . Th is
seems to mean that su ch evi den ce is in ad missible
ag ain st the accu sed who o ught to hav e b een
d isch arged and mig ht be inadmissib le in Botswan a
b y v irtue of s. 27 4 of th e CP & E.
. Held : (a ) Th at the ev id ence of the child witness
should have b een corrobo rated b y ev idence
i mp licating th e Accu sed .
(b ) Wh erefo rewh eth er the Eng lish law p rin ciple
that an accused p erson who shou ld h av e been
d isch arged at th e close of the State case
th rough lack of evid en ce can sub sequently b e
incrimin ated and conv icted b y the co -accu sed
in her ev idence, o r whe th er the diff erin g
p rincip le of Sou th African law, ap plies in
Botswan a?
Tsheleku v The Sta te

Th e appellan t was convicted of the rap e of a 13 -

year-old g irl. Th ere was on ly h er word ag ainst th at
of the app ellant. No on e else was p resent and the
app ellant d en ied an y kno wledg e of th e incident.
Held: in cases of alleged sexual off en ces
co rrobo ration of th e co mp lain an t's ev id en ce was no t
required b y law bu t, as a matter of p ractice it was
always look ed fo r and th e tribun al of f act mu st
sho w itself to be aware of the d ang er of acting
withou t it. The co rrob o rativ e ev id ence mu st conf irm
in so me material p articular that intercou rse had
tak en p lace witho ut the wo ma n 's consen t an d that
the accu sed was th e man wh o co mmitted th e
off en ce.
 5 . Hea rsay

”A statement made by a person not called as a witness

which is offered in evidence to prove the truth of the
fact contained in the statement is hearsay and it is not
admissible. If however the statement is offered in
evidence, not to prove the truth of the facts contained
in the statement but only to prove that the statement
was in fact made it is not hearsay and it is admissible”-
Justice De Silva

R v Sha rp

Sir Rupert Cross has once stated “hearsay is an assertion other

than one made by a person while giving oral evidence in the
proceedings is in admissible as evidence of any
fact asserted.”
Lord Havers in R v Sharp used this quote. As held in this case, the
general rule is that such a statement is inadmissible as evidence
of the truth of the facts stated. The main reason for the rule is
that there is otherwise no opportunity to test whether the person
that made the original statement is telling the truth.
The rule applies:
 To both examination in chief and cross-examination;
 Whether the statement was made by the witness personally or
by some other person;
 To any `out of court' statement, whether oral, written or
otherwise;
 To statements given as evidence of the truth of its contents - if
the statement is given for any purpose which is relevant to the
facts in issue in the case, it is admissible, for example,
evidence given as to a person's state of mind, rather than what
was actually said.
In Byles J, R v Jenkins, Lord Devlin pointed out that the
“danger of hearsay is that the juryman, unused to shifting evidence,
might treat it as first hand.”

Subramaniam v DPP

The accused was found in a wounded condition by security

forces operating against terrorists. He was charged with being in
possession of ammunition in breach of certain Malayan
emergency legislation. He claimed that he was in possession of
the ammunition because he was acting under duress. He claimed
that he had been captured by terrorists, and wanted to tell the
court what the terrorists had said to him – i.e., if he didn’t carry
the weapons that they would kill him. The Crown was trying to
argue his evidence was hearsay because they were relying on the
truth of it (that they would kill him). At first instance, the court
held that it was an out of court assertion by others, brought into
the court, caught by the hearsay rule and therefore inadmissible.
On appeal it was held:
 The Privy Council held that the statement went to his state
of mind that he was acting under duress, and what
informed his mind were the things said to him by the
terrorists.
 The fact that the terrorists had said things to him that
caused him to believe that the only way he could save his
life was to carry ammunition in contravention of the
legislation was relevant to an issue in the trial.
 The statement wasn’t brought into court to prove that the
terrorists would actually kill him, and it doesn’t matter
whether it was true, provided that the defendant believed
it, the statement generated the state of mind that
constituted the defence.
 The question for the jury was whether they believed the
defendant when he said that the statement wasmade.It
didn’t matter whether it was going to be carried out, it was
 the impact on the state of mind that wasrelevant. The mere
fact that the statement was made was relevant to his
defence of duress, and thereforenot hearsay.

It is necessary to satisfy the test of hearsay in order to render the

statements made as ‘’hearsay'’- the test laid down in this case is two
tiered. It requires that:
1. The alleged statement must be made out of court; and
2. That the alleged statement is tendered for it’s testimonial
effect.
There are of course exceptions.

Myers v DPP

The appellant in this case was charged and convicted of

receiving a stolen motor vehicle. He was in the business of
buying wrecked motor vehicles for repair and resale. The chief
prosecution witness was the person in charge of the records
department of the relevant motor vehicle factory. He testified
that every time that a car was manufactured a workman would
note down the engine number and the chassis number of the car
amongst other details and these would be marked on some card.
He also testified that the cylinder head number would be
indelibly struck on the cylinder head block so as to be
inerasable. The card would then be microfilmed and stored. At
the trial the witness produced the microfilms under oath and
schedules were prepared from this microfilm. The schedules
showed that the cylinder block numbers of the car in question
belonged to the car allegedly stolen. The appellant was
convicted on the basis of this evidence. The court of appeal
affirmed the conviction and the appellant appealed to the House
of Lords. The House of Lords held that the trial court and the
court of appeal improperly admitted hearsay evidence in the
form of the microfilm and Lord Reid at page 884 stated:
“The witness would only say that a record made by
someone else showed that if the record was correctly made
a car had left the workshop bearing three particular
 numbers. He could not prove that the record was correct or
the numbers which it contained were in fact the numbers
on the car when it was made.”

R v Miller

Th e follo wing p assage in R v Miller ( at 11 9 ) is

instructive:
‘ … state men ts mad e b y non -witn esses are no t
always h earsay. Wh ether o r no t th ey are
h earsay depen ds u pon th e pu rpo se fo r which
they are tend ered as ev id en ce. If th ey are
ten dered fo r their testi mo n ial v alue (i.e., as
eviden ce of th e tru th of wh at th ey assert), they
are h earsay and are exclud ed becau se th eir truth
d ep ends u pon th e cred it of the asserter which
can only b e tested b y his app earan ce in th e
witn ess box . If , on the o th er hand , th ey are
ten dered fo r their circu mstan tial valu e to p rov e
so meth ing o th er th an th e tru th of what is
asserted , th en th ey are ad missib le if what th ey
are tendered to p rov e what is relev ant to the
enqu iry.’
Sta te v Keleemetse

Th e accused on b ein g p rovok ed b y th e deceased

stabb ed h er o n the b ack with a kn ife. Th ere were no
witn esses to the actual stab bing ex cept on e witn ess
who reco unted wh at the d eceased h ad told h er. The
qu estion was wh ether this was ad missib le in
eviden ce as, wh en the d eceased was ad mitted t o
ho spital h er cond ition was d escrib ed as b eing fair.
Sh e had two wou nds, on e on th e b ack and ano th er
on th e abd o me n . Th e ab do min al woun d requ ired a
majo r operation , and th e d eceased died wh ile
un dergo ing su rg ery. The cause of death was
d escribed as b eing card iac shock du e to b leeding
after wound ing in abd o men . Th ere was no ev id en ce
as to wh at had caused th e abdo min al wou nd , bu t
on ly the ev idence of th e accused who said th at he
h ad stabb ed th e d eceased on the back .
Held: Th e general p rincip le con cernin g d yin g
d eclarations requ ires th at su ch d eclarations should
b e mad e in extre mity wh en th e p arty is at the po in t
of d eath , and wh en every h op e of th is wo rld has
go ne, wh en ev ery mo tive to falsehood is silenced,
and the min d is indu ced b y th e mo st po werful
consid erations to sp eak th e truth . In th e
circu mstan ces of this case th e statemen t mad e b y
the d eceased to on e of th e witn esses co uld no t be
said to h av e b een mad e wh en th e d eceased was in
extremis b ecause wh en sh e was ad mitted to ho spital
the fo llowing mo rn i ng after th e stab bin g, h er
cond ition was d escribed as b eing fair.
N.B. A decla ration ma de o n a dea thbed, as
hearsay , is admissible.
Nemnha rd v R.

Thee facts were that the appellant was charged in Jamaica with
the murder of a police officer. The evidence for the prosecution
was that the deceased had been shot at the gate of his home and
that there were no eye witnesses, but that when his wife heard
the shots and ran out to him from the house, he told her that he
was going to die, that she was going to lose her husband and
that the appellant had shot him. He died a few hours later. The
trial judge admitted the evidence of the wife as to her husband’s
statement on the basis that it was a dying declaration. There was
no other evidence that implicated the appellant. In his summing
up, the trial judge told the jury that they must be satisfied as to
the reliability of the wife and that, if so satisfied, they must also
assess the probative value of the dying declaration itself, bearing
in mind that it had not been tested by cross-examination, but he
did not tell the jury that it was dangerous to rely on a dying
declaration in the absence of corroboration. The appellant was
convicted and the Court of Appeal of Jamaica dismissed his
application for leave to appeal against conviction. The appellant
appealed to the Privy Council, contending that the jury should
have been directed that it was dangerous to convict of murder
solely on the evidence of a dying declaration with no supporting
or corroborating evidence and that, no such direction having
been given, the appellant’s conviction was unsafe and should be
quashed. The Privy Council held that there was no rule of law or
practice whereby a special warning about the absence of
corroborative evidence had to be given where the only evidence
implicating the accused consisted of a dying declaration. A trial
judge had a general duty to leave the jury with a clear
consciousness of the need for care in assessing the significance
of a dying declaration, and in the appellant’s case that the trial
judge in his summing up had discharged duty. Sir Owen
Woodhouse, who wrote the decision of the Privy Council, had
this to say on dying declaration (at p 185):
“It is not difficult to understand why dying
declarations are admitted in evidence at a trial
for murder or manslaughter and as a striking
exception to the general rule against hearsay.
For example, any sanction of the oath in the
case of a living witness is thought to be
balanced at least by the final conscience of
the dying man. Nobody, it has been said,
would wish to die with a lie on his lips. So it
is considered quite unlikely that a deliberate
untruth would be told, let alone a false
accusation of homicide, by a man who
believed that he was face to face with his own
impending death. There is the further
consideration that it is important in the
interests of justice that a person implicated in
a killing should be obliged to meet in court
the dying accusation of the victim, always
provided that fair and proper precautions have
been associated with the admission of the
evidence and its subsequent assessment by
the jury. In that regard, it will always be
necessary for the jury to scrutinize with care
the necessarily hearsay evidence of what the
deceased was alleged to have said both
because they have the problem of deciding
whether the deponent who has provided the
evidence can be relied on and also because
they will have been denied the opportunity of
forming a direct impression against the test of
cross-examination of the deceased’s own
reliability.”
 .

In another part of his judgment, his Lordship Sir

Owen Woodhouse spoke of whether the need for
care in assessing the significance of a dying
declaration requires that a jury should be
specifically directed that it would be dangerous to
convict on that evidence in the absence of
corroboration. This was how his Lordship tackled
the issue (at pp 186–187):
reference to s 32 of the Indian Evidence Act would necessarily
be less than that attached to a dying declaration admitted under
the common law rules. The first kind of statement would lack
that special quality that is thought to surround a declaration
made by a dying man who was conscious of his condition and
who had given up all hope of survival. Accordingly, it may not
seem surprising that the courts dealing with such statements
have felt the need to exercise even more caution in the use to be
made of them than is the case where the common law test is
applied

““It appears that a rule of practice has been developed that

when a dying declaration has been the only evidence
implicating an accused person, a conviction usually cannot
be allowed to stand where there had been a failure to give
a warning on the necessity for corroboration: see for
examplePius Jasunga Akumu v R (1954) 21 EACA 331
and Terikabi v Uganda (1975) EA 60. But it is important
to notice that in the countries concerned, the admissibility
of a dying declaration does not depend on the common law
test, that is on the deceased having at the time a settled
hopeless expectation of impending death. Instead, there is
the very different statutory provision contained in s 32(1)
of the Indian Evidence Act 1872. That section provides
that statements of relevant facts made by a person who is
dead are themselves relevant facts:
In Akumu, it was pointed out (for the reason associated
with the emphasized words in the subsection) that the
weight to be attached to a dying declaration admitted by “
“When the statement is made by a person
as to the cause of his death, or as to any
of the circumstances of the transaction
which resulted in his death, in cases in
which the cause of that person’s death
comes into question. Such statements are
relevant whether the person who made
them was or was not, at the time when
they were made, under expectation of
death, and whatever may be the nature of
the proceeding in which the cause of his
death comes into question.
R v Perry

Dying declarations made by deceased persons are receivable in

evidence if it appears to the satisfaction of the judge that the
deceased was conscious of being in a dying state at the time he
made them and was sensible if of his lawful situation, even
though he did not actually express any apprehension of danger
and his death did not ensure until a considerable time after the
declaration was made. In this case, Eyre C.B. wrote that the
general principle on which this specie of evidence is admitted is
that they are declarations made when the party is at the point of
death, and whom every motive to falsehood is silenced and the
mind is induced by the most powerful considerations to speak
the truth. The victim must have been a competent witness when
giving the statement. Eyres C.B. called them "declarations in
extremity" and explained that this was why they were allowed to
be given in evidence. However, the judge when summing up to
the jury, must direct them to scrutinise the evidence carefully.

R v Nzobi

A dying declaration is considered credible and trustworthy

evidence based upon the general belief that most people who
know that they are about to die do not lie. As a result, it is an
exception to the Hearsay rule, which prohibits the use of a
statement made by someone other than the person who repeats it
while testifying during a trial, because of its inherent
untrustworthiness. In R v Nzobi, the dying person said in a
written statement “Having the fear of death upon me and no
hope of recovery”, the court investigated the matter and found
that the dying person still had hope of recovery, and the
statement became inadmissible in court.
Ergo, the court has to investigate the use of words and the
circumstances to determine the trustworthiness of a dying
declaration. The statement is not allowed to be made with
information seeking questions, and a witness has to be
present. Lastly, it is not necessary to give the ipsissima verba,
the exact words as held in R v Baloi.

Waugh v R

The deceased was allegedly shot by the appellant just before he

died he mentioned the name of his alleged assailant and said
words to the effect that I am innocent he shot me because and
thereafter lapsed into comma, before he could finish. The
statement was used at the trial as a dying declaration and on
appeal it was rejected as incomplete. This case laid down the
requirement that the person who made the declaration must be
proved dead.In Waugh’s case, the declaration was held to be
inadmissible because it was not complete on its face. The
deceased in this case fell in a terminal comma when he was
making the statement leaving it incomplete. So basically what
the court is saying is that you don’t know what the person might
have said if they had had the opportunity to complete the
statement, and for that reason, being incomplete, then you could
not say it is a statement that should be admitted.

Teper v R

the Privy Council held that an alibi of a shopowner on a charge

of arson of his own shop could not be contradicted by the
evidence of a policeman that he had heard someone in the crowd
say: “Your place burning and you going away from the fire”.

The doctrine of res gestae makes statements admissible, which

either constitute a fact in issue or a relevant fact or are closely
associated in time and circumstance with a fact in issue. In this
case it was stated:

“[The rule that words may be proved when they

 form part of the res gestae] appears to rest
ultimately on two propositions, that human
utterance is both a fact and a means of
communication, and that human action may be
so interwoven with words that the significance
of the action cannot be understood without the
correlative words, and the dissociation of the
words from the action would impede the
discovery of truth. But the judicial application
of these two propositions, which do not always
combine harmoniously, has never been
precisely formulated in a general principle.” (P.
486)

Ratten v R.

Accused charged with murdering his wife by shooting her with

a shotgun. The accused’s defence was that it was accidental (the
gun went off as he was cleaning it). Evidence adduced that his
wife had been alive and was behaving normally at 1:12 p.m. and
within ten minutes hereafter had been shot. The prosecution
challenged that defence by calling a telephone operator who
testified as to a telephone call she received at 1:15 p.m. from the
deceased’s home. The call was from a female who was
hysterical and who said, “Get me the police please.” The phone
went dead. The objection made by the defence was that of
hearsay.
Held: The evidence was admissible. Either as “original
evidence” regarding the state of mind of the deceased from
which it could be inferred that the deceased was suffering from
anxiety or fear of some existing or impending emergency. Or as
an exception to the Hearsay Rule- “…hearsay evidence may be
admitted if the statement providing it is made insuch conditions
(always being those ofapproximate but not
exactcontemporaneity) of involvement orpressure as to exclude
the possibility ofconcoction or distortion to the advantageof the
maker or the disadvantage of the accused… the possibility of
concoction, or fabrication … is probably the real test …”
 “As regards statements made after the event, it must be for
the judge, by preliminary ruling, to satisfy himself or
herself that the statement was so clearly made in
circumstances of spontaneity or involvement in the event
that the possibilityof concoction can be disregarded.”
 “Conversely, if he or she considers that the statement was
made by way of narrative of a detached prior event, so that
the speaker was so disengaged from it as to be able to
construct or adapt his account, he or she should exclude it.
And the same must, in principle, be true of statements
made before the event.”
 “The test should not be the uncertain one of whether the
making of the statement should be regarded as part of the
event or transaction. This may often be difficult to show.
But if the drama, leading up to the climax, has commenced
and assumed such intensity and pressure that the utterance
can safely be regarded as a true reflection of what was
unrolling or actually happening, it ought to be received.”
Confessions

Sta te v Moithoke

The Accused confessed to a pol ice off icer. The

pol ice off icer then took the accused to a
M agistra te who reco rded the confess ion.
C or duff J. - A stat ement of an accused person is
not like an a ver ment in a ci vi l p leading tha t m ust
be ad mit t ed or denied . It is e vidence , the p roof of
the admiss ibil ity of which rests on the State . I t is
of c ourse accepted practice that objection to t he
ad missib ilit y of e vi dence should be taken when an
att empt is made t o lead such e vidence but fai lure
b y t he def ence to object cannot lead to its
ad mission b y defau lt.
The def init ion of a confession is quoted in
H off mann's work a t page 162 :
"An unequivocal acknowledgment of guilt, the equivalent
of a plea of guilty before a Court of Law."

At 223

“ In br ief m y view is that when an accused

person h as been forma ll y charged b y the
pol ice with the co m mission o f an offence and
has been dul y caut ioned in ter ms of the
Judge's R ules an y s tatemen t m ade b y tha t
accused e ither at that ti me or later shou ld be
recorded b y the po lice. If the sta temen t
a mounts to a confess ion the accused shou ld
be in vited to conf irm it in the presenc e of a
m agistra te as requir ed b y the Second Pro vi so.
A pol iceman should not in form an accused
tha t the po lice are p rohibited fro m t akin g a
stat ement fro m h im beca use this is not true
nor shou ld the pol ice on th is prete xt in vi te the
 accused to ma ke a state ment to a magistra te.
U nti l such t imes as he is du l y e mpo wered b y
la w to take s tate ments from accused pe rsons
in his capaci t y of judicia l off icer and the
procedure for this has been dul y prescribed a
m agistra te should not engage in doing this
sa ve in com pliance wi th the Second Pro vi so
requi remen ts.”

In this coun tr y a magist rate is a judicia l off icer

appoin ted in exa ct l y the sa me wa y as a puisne
judge . He has no du ties or funct ions of an
ad minist rati ve or judicia l nature that are not
prescr ibed in so me writ ten law. No where t hat I a m
a ware of is he author ised or em po we red to caut ion
and ques tion an accused , brought before h im b y
the police, in accordance with a fi xed proce dure
for the purpose o f obtain ing a st atemen t from that
accused, wh ich might be of the most da mning
nature , and subsequent l y as a judicial officer to
appear and to test if y a t the t ria l of that accused on
behal f of the prosec ut ion. W hat I a m sa ying is that
a magist rate in th is countr y is no t empo wered in
his capacit y o f a judicia l off icer to conduct wh at
are in essence cr im inal proceedings according to
f i xed procedure. The re is no author it y oth er th an
Parl iamen t that ca n consi der such po wers upon a
m agistra te and th e legis lature has not done so as
far as I kno w nor has it e mpowe red an yone to
regul ate such proceed ings. W ith respect I m ust
regard an y such procee dings as irregular which
purpor t to do other than conf ir m a con fessio n
m ade to the pol ice.
Held:

(a) An y state ment b y the Accused to a pol ice

off icer af ter caut ion in terms of the judges ' rules
should be recorded b y the po lice man who can
in vi te the Acc used to confir m i t in the presence o f
a Magist rate.
(b) State ments to Mag istrates or justices , which
purpor t to be an yth ing other than con fir mations,
should not be ad mitted in e vi dence.

State v M ponda
M ponda was con vic ted of possession of mandra x
tab lets contra ry to the Habi t -For ming Drugs
leg islation . At the trial the accused p leaded not
gui lt y and was not represented b y counsel. The
accused was tra vel ling when the tablets were
ad mitted l y disco vered in his car. He had as a
passenger in his car at the tim e of h is arrest, a
certa in lad y. The accused made a confession
stat ement to the po lice. In that s tate ment the
accused was al leged to ha ve stat ed that the lad y
did not kno w about the presence o f the mandra x.
The sta temen t wa s not confirm ed before a judic ial
off icer so as to rende r it adm issib le. At the tria l
the accused's defence was that he kne w nothing of
the presence of the tab lets in h is car. The
confess ion state ment was no t tendere d in e vi dence
b y t he prosecut ion.
M urra y J . (at 293) - It is well kno wn that under
sect ion 228(1) of the C P & E vo lun tar y confessions
of an accused person a re adm issibl e in e vi dence
agains t hi m at his trial subject to certa in provi sos .
For t he purpose o f this judg ment it is not
necessar y to conside r the provi sos that ar e set out
there in sa ve t o res tate a pa rticular point that
arises theref rom . That is tha t in this jurisd ict ion a
confess ion not on l y mus t be pro ved to ha ve been
free l y and vo luntar il y made but, if it is made to a
pol iceman , it m ust be con firm ed and reduced to
wr it ing in the presence of a magis trate or a just ice
wh o is not a me mber of the pol ice force before it
beco mes ad missib le in e vi dence. Subsec tion (2 ) of
sect ion 228 goes on ho we ve r to pro vide:
 "In any proceedings any confession which is by
virtue of any provision of subsection (1)
inadmissible in evidence against the person who
made it, shall become admissible against him if he
or his representative adduces in those proceedings
any evidence, either directly or in cross -examining a
witness, any statement, verbal or in writing, made
by the person who made the confession, either as
part thereof or in connection therewith, if such
evidence is, in the opinion of the officer presiding at
such proceedings, favourable to the person who
made the confession."

In m y vi e w this sec tion is intended for the

protec tion of an accused person. The basic rule of
the Eng lish com mon la w, as I appreh end it , is that
i f part o f a conve rsat ion or docu ment is referred to
in cross - e xa minat ion of a prosecut ion witness b y
or on behalf of an accused, then, subject to th e
quest ion of r ele vance, the rem ainder o f the
docu ment or con versat ion ma y be elici ted in re -
e xa minat ion. Like wise if an accused pe rson in his
e vidence -in-chie f ad verts to docu ments or
con versat ions tha t are not other wise admissib le in
e vidence against h im he thereb y opens hi msel f up
to being cross -e xa mined upon th e entire t y of such
docu ments or con versat ions. Al l this ho we ver is
subjec t to the o verr iding discret ion of the court to
conduct proceedings fair l y and wi thout pre judice to
an accused . In e xerc ising such d iscretion howe ve r
a cour t wil l general l y consider whethe r or not it is
jus t that the court should be infor med on l y of p art
of a docume nt or con ve rsation which wou ld not
other wis e ha ve been alluded to, when there ar e
other parts o f the docu ments or con ve rsation t hat
cast a dif ferent light upon the part that the
accused wishes at tention to be dra wn. The
pro vis ion I ha ve just refe rred to in our C P & E was
draf ted, I suspect, to pre ven t an unrepresented
accused from bei ng dra wn into wha t a person who
wa s igno rant of these pro vis ions in the co mm on
la w migh t consider to be a trap. An obliga tion is
thus cast upon a judicia l off icer unde r section
227(2) to consider whet her or no t the o vera ll ef fect
of the confess ion is fa vou rab le t o the perso n who
m ade the co nfession . The judic ial of ficer must
judge this for hi mself object i vel y and onl y if he
conside rs on balance that the con fession assis ts
the accused ma y he allo w a confess ion that wo uld
other wis e be inad missib le to beco me a d missib le in
e vidence at the t rial.
H el d: ( 1) in this jurisdict ion, a con fession not onl y
m ust be p ro ved t o ha ve been f reel y and vo luntar il y
m ade, but if it is made to a pol iceman , it must be
conf irmed and reduced to writing in the presence
of a mag istrate or a just ice who is not a mem ber of
the police force be fore it beco mes ad missible .
C onsequentl y the s tatemen t m ade b y the accused
to the pol ice was inadm issible in e vidence.
(2) W hen an accused pe rson is unrepresented the
presid ing jud icia l off icer has a du t y to ass ist h im in
present ing his defence b y way of cross -
e xa minat ion. His dut y is to ask th e accused person
e xpressl y wh ether he agrees wi th the material
al legations made aga inst hi m b y the State
wi tnesses . In this wa y it should become clear
wh ich e vi d ence is disputed .
(3) A confession st atemen t that is inad miss ible b y
vi r tue of the pro vis ions of sect ion 228 of the C P &
E ma y be ad missib le under subsect ion (2) of that
sect ion. And a jud icial o fficer has an obligat ion in
ter ms o f the subsect ion in consi der ing the
ad mission of such e vi dence to f ind out whe ther the
o veral l eff ect of the confess ion is fa vourab le to the
person who made it. A judicia l of ficer must judge
th is object i vel y and onl y i f he conside rs on balance
tha t it assists the accused then he m a y a llo w a
confess ion that wou ld other wise be inad missib le to
beco me ad missib le in e vi dence a t the trial. The
conduct of the tr ial magistr ate in per mitt ing the re -
e xa minat ion of th e accused by th e public
prosecut or upon inadm issible confess ion state ment
wa s ir regular as th is was pre judic ial to the
accused. The se shou ld ha ve been s topped and
disa llo wed.

State v H a bone
The Accused was charg ed with f orger y, it being
al leged that he had forged certa in pa ym ent
vo uchers. In repl y to quest ions b y the Polic e as t o
wh ether he had made out the vouchers he repl ied
in the af fir mative . He further to ld the po lice tha t he
had no authori ty to prepare the vouche rs. Apart
fro m e vi dence to the eff ect that the Accused was
found in possession of the forged docu ments,
there was no ad missib le e vidence be fore the Court
tha t he was the ac tual forg er.
Held:As regards what the accused is alleged to have told the
P o l i c e this was a con fession of forger y, wh ich,
ha ving been made to a pol ice of ficer was
inad miss ible.
State v N j uanje

The Accused was charg ed with Murder. He m ade a

confess ion to a Dis trict Co mm issioner but onl y
aft er length y inter rogation b y the Po lice. The Sub -
Inspec tor who had conduc ted th e inter rogation
said that it had had continued fo r so me four to fi ve
hours, with a b reak for lunch , and he said that the
accused initia lly had denied al l kno wledge of th e
aff air.
Young C .J. –
“I f an accused is made to realise that there is
no escape for hi m f rom the process o f
 in terrogation other than to adm it what is
requi red of h im, this, in m y judg ment, ma y be
undue influence. Our s yste m of justice
requi res that an accused should not be forced
to incri minate hi mself , and it see ms to me that
th is inter rogation went too far in the d irection
of influenc ing the Accused. ”
H el d:
(1) The State did not discha rge t he onus of
sho wing that the length y pol ice interrogat ion d id
not affect the free and voluntar y na ture of the
confess ion.
(2) The confession was therefore not ad missib le in
e vidence .

State v B a gw asi and Ot hers

The charge agains t the accused is one of murder .

In the course of the tr ial the prosecut ion tendered
in e vidence an a lleged sta tem ent b y the accused.
This s tate ment was no t put in e vi dence but it was
describ ed as a co n fession. The ad miss ibili ty of his
confess ion was cha llenged at h is tr ial on the
ground that it had been obtained a fter pro longed
in terrogation .
H el d: There had been length y interrogat ion and the
State had not pro ved that th e interrogat ion did not
a mount to undue influence. T h e r e f o r e , the confess ion
wa s accord ingly i nadmi ssible.
State v Zi ndaba
The accused had been taken fro m t he jai l b y th e
pol ice, whils t awa it ing tr ial, and was sub jected to
in tensi ve in terrogat ion. The accused's e xtra -cur ial
confess ion to a Dis trict Co mm issioner was put in
issue on the g round that i t was no t made
vo lun taril y.
R oone y, J. –
“ The onus rests upon the State to pro ve
be yond a ll reasonable doubt tha t the
confess ion was reco rded in circu mstances
wh ich r e nder it ad missi ble in e vidence . The
State has to adequate l y negat i ve t he
al legations made b y the accused that his
confess ion was induced as a resu lt of torture.
There can be no doub t that the ac tion of the
pol ice in taking t he a ccused fro m t he State
priso n and subjec ting hi m t o a length y
in terrogation ext end ing o ver se veral da ys, wa s
an illegal proceeding .”
. H el d:
. (a) Tha t it was un la wful fo r the p o lice t o take t he
accused from the jail and to keep h im in the ir
o wn custod y pending intensi ve interrogat ion of
hi m.
. (b) Tha t the State had not pro ved that when th e
Accused was taken be fore the Dis trict
C om miss ioner he was no t under the inf luence
of his pre vi ous e xper iences wi th the Pol ice
and that he may no t ha ve fe lt obl iged to make
a st atemen t to the D istrict Com m issioner .
. And the refore the con fession should
accordi ngl y be re jected.
State v Julius and Another

The accused persons h erein we re con vi cted, a fter

tr ial, on charges o f shop breaking and thef t and
m alici ous damage to property. The tria l magis trate
m a y ha ve ad mitt e d inculpa tory st atemen ts made b y
the accused persons that a mounted to confessions
wi thou t taking account of the ter ms o f s. 228 of the
C P & E.
H el d: W hen the de fence as to t he adm issibil it y of
a con fession state ment raises an objection . The
issue should be t ried as a separate issue in open
court . The accused shou ld be g i ven e ver y r ight to
estab lish his clai m and, if the al leged confession is
ruled inad missible , then i t wil l no longer be
m entioned in the case . Ho weve r, if it is ruled
ad missib le, then it goes in as e vidence and
beco mes part of the record for the purposes of
f inal judg ment . In other words, there is no need,
once ad miss ibil it y has been estab lished, to repe at
the process.

Kw enam ore v The State

The appe llant wa s charged wi th the o ffence of

rape. The compla inant al leged t hat the appel lant
forc ibl y had sexu al intercourse wi th her aga inst
her wi ll. Medical e vidence reve aled , a mong ot her
th ings, in juries rece i v ed b y t he co mpla inant on her
th ighs. An id ent ificat ion parade was he ld at wh ich
the compl ainant identi fied the appe llant as her
assai lant. The appel lant was then char ged with
rape, but his repl y to the charge was n ot pro ved in
e vidence . The appel lant was a rra ignedand he
pleaded not gui lt y to the charge. The case final l y
ca me before a di fferent magistra te to the one who
had or iginal l y taken the appellan t's ple a of not the
second tim e to which he pleaded that he
in tercourse had t aken place wi th the co mplainan t’s
consent . The tria l proceeded on the plea o f not
gui lt y.
The appe llant ga ve e vi dence on oa th and stated
tha t on the night in quest ion he was totall y drunk
and p leaded am nesia . The trial magis trate
con vic ted the appel lant.
H el d:
(2) The state ment made b y the appe llant when the
charge was read o ver to hi m the second ti me
before a dif ferent l y consti tuted cour t should no t be
read as a ne w plea , but merely as a state ment in
a mplif ication of h is pre vio us plea of not guilt y. As
per Dend y- Young J .A. -
“ There is no author it y fo r requir ing an accused
to plead a second time . But if the court wh ich
tr ies the case is no t the sa me cour t that
orig inall y took the plea, then in t hat case an
accused must plead before the d ifferent l y
const ituted co urt in order that the la tter may
be se ised of the matte r.”
O biter : (1) Per Maisels P. and Van W insen J. A.
concurr ing: A court is ent itled to take into account
e ver y ad miss ion made b y a n accused pe rson
wh ether e xtra -judic iall y o r in court , not for the
purpo se of dispensing with proof that the cri me
charged has been co m mitted bu t as e vidence
tend ing to support the Sta te case.
Per Dendy - Young J .A. dissenting : W here a plea of
not guilt y is entered b y the trial court, that puts
e ver y e lemen t of the off ence in is sue, and it wo uld
clear l y be in derogat ion of the p lea to use an yth ing
b y t he accused in the course of making that plea ,
wh ether e xculpator y or not . If the prosecution
desires the court to take cognisance of what a n
accused has said , the s tatement must be placed
before the court in the usual wa y.
(2) An accused person , when a warned and
caut ioned state ment was made to hi m, might elect
not to make any rep l y or might refuse to reply, a nd
in such e vent no inference ad verse to hi m could be
dra wn
(3) The appella nt 's ans wer to a question in cross -
e xa minat ion that, to wi t, "W hen I was ident if ied b y
the compl ainant as a rapis t I did not den y o r agree
tha t I raped her " d isposed of the suggestion th at
the e vidence of p ointing out at the iden tifica tion
parade was inad m issib le as being hearsa y. In an y
e vent , as found b y the tr ial magis trate, the
co mplainan t had a mple opportuni t y of recog nis ing
the person who raped her and one could be left in
no doub t that the appe llant 's iden tit y was c learl y
estab lished.

M asi na a nd Ano t her v The State

The appe llants were cha rged wi th murde r.

According to the po lice, the appel lants af ter
caut ion m ade confess ion state ments.
Subsequent l y, the y were taken be fore a j udicia l
off icer fo r their con fessions to be recorded. At the
tr ial at the High Court , the p ro secut ion sought to
tender in e vi dence the confession state ments,
ad mitt ing part icipa tion in the ki lling o f the
deceased, made b y the appel lants to the judicia l
off icer. The appel lants objec ted to the ad mission
in e vidence of the state ments on the ground th at
the y were not freel y or volun tari l y gi ven . O n a
preliminary examination ( voire dire ) the appellants
test ified that their state ments in each case had
been g i ven as a consequence of s yste matic
assaul ts and tortu re while the y were in pol ice
custod y prior to be ing taken to t he judic ial off icer.
The y fu rther stated that the pol ice dicta ted the
stat ements made to the judicial officer to the m.
The po lice denied the charge o f assault and
tor ture made by th e appellan ts. Independent
circu mstan tial fact s adduced at the voire dire
tended to support the basic co mplain t of assaul t
on the appellants b y the po lice. At the end of the
e vidence on voire dire, the judge ru led tha t the
stat ements made to the po lice were inadm issib le.
The t rial magistra te con victe d th e appellan ts of
m urder based m ostl y on their con fession
stat ements and sen tenced the m. The appe llants
appealed .
H el d:
(1) A confess ion of co m mission of a n offence
m ade to a police o fficer was inad miss ible in
e vidence at a tria l unless it was con fir med
and red uce d in wri ting i n the presence of a
m agistra te or an y justice who did not belong
to the pol ice force.

(2) For con fession sta temen ts to be ad mit ted in

e vidence , the y had to sat isf y the cardinal
rule that the y we re gi ve n b y the appellants
as accused persons freel y and vo luntari l y.

(3) The fac t that the judge disbel ie ved the

accused pe rsons when the y said in the
wi tness bo x that the pol ice dictat ed their
stat ements to the judicial officer to the m did
not make those st atemen ts volun tar y. The
deta il, accu racy and truth o f the s tatemen ts
m a de b y the accused pe rsons might , apart
 fro m he lping to assess the credib ilit y of the
accused gene ral l y, go to show tha t the
accused were in t heir sound and sober
senses when the y made th ose st atemen ts.
But the y did n ot ch ange a sta te ment tha t
fro m o ther fa ctors woul d appear to be
in vo luntar y into a voluntar y one. Fo r the
purpose of adm issibi lit y of state ments, the
centra l issue was t heir vol untariness not
the ir tru th. ( Dictu m of Og ili vie Tho mpson
J. A. in S v Radebe.)

(4) A jud icial officer was no t ent it led to assu me

tha t an ac cused person could speak freel y
fro m merel y tell ing the accused t hat he was
a judicial officer and not a pol ice off icer. He
wa s obl iged to te ll the accused in e xpress
ter ms t hat he had no thing to fear and could
speak freel y, and no t lea ve that assurance
to inference. A judicial office r shou ld ask an
accused appearing before h im whether he
had made an y pre vio us statem ent and to
e xpla in carefu ll y to the accused that he had
noth ing to fear and could speak f reel y. In
th is case the judic ial of fi cer fai led to co mpl y
wi th these precaut ions. In the
circu mstances , it was i mpossible to
disconnec t the t wo stages which admi ssions
we re made.
(5) W here the pol ice passed an accused or
suspected person to a jud icial of ficer for his
confess ion to be taken on l y because the pol ice
the msel ves c ould not take it do wn the burden
wa s on the prosecut ion to pr ove be yond
reasonab le doubt that whateve r migh t or might
not ha ve inf luenced the mak ing o f the
confess ion to the po lice, the repet ition o r
elabo ration o f wh ich t he judicia l off icer was
cal led upon to record , ceased to operate on the
m ind of the person who had alread y co nfessed
under the, at least , doubtfu l circu mstances . In
the instant case, the sta tements made be fore
the judicia l off icer were as flawe d as the
confess ions to the police and ought , like them ,
to ha ve been rejec ted. ( Dic tum of Lo rd Parker
C .J. in R. v. Sm ith . )