Wakilii

Baukunda v Rex (‘Criminal ‘Appeal‘No. 18 of1951)

East African Court of Appeal · [1951] EACA 160 · 1951 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder by the High Court of Tanganyika
Decision
Conviction for murder upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defective information alleging 'unlawfully killed' rather than 'murdered' did not occasion a failure of justice, though the responsibility for correctness lies with prosecuting counsel. The use of 'confession' by the Magistrate was improper. Section 223 requires recording the exact words of the accused. The conviction was upheld as there was ample corroboration of the extra-judicial statement. Appeal dismissed.

Outcome

Conviction for murder upheld

Facts

The appellant was convicted of murdering his sister-in-law by the High Court of Tanganyika. He was unrepresented at trial. The information alleged he 'unlawfully killed' rather than 'murdered' the deceased. The appellant made an extra-judicial statement before a Magistrate admitting he killed the woman with his own hand and asking for leniency, stating he was ill at the time. At the preliminary inquiry, he reserved his defence. At trial, he made an unsworn statement claiming he was sick and had no senses at the time. The dying woman had told her husband and the appellant's mother that the appellant had speared her. A bloodstained spear belonging to the appellant was found near the body. The appellant could not be found after the incident. The murder appeared to be without motive.

Issues

  1. Whether a defective information alleging 'unlawfully killed' instead of 'murdered' was fatal to the validity of the trial.
  2. Whether the use of the word 'confession' by a Magistrate recording an extra-judicial statement was proper.
  3. Whether the committing Magistrate properly complied with section 223 of the Criminal Procedure Code in recording the accused's statement at the preliminary inquiry.
  4. Whether the appellant's unsworn statement at trial amounted to a retraction of his extra-judicial confession and whether corroboration was required.

Orders

  • Appeal dismissed.

Rules and key headnotes

Criminal Law & Procedure — Defective Information — Particulars Alleging 'Unlawfully Killed' Instead of 'Murdered' — Effect on Validity of Trial
Where an information for murder alleges in the particulars that the accused 'unlawfully killed' the deceased instead of alleging that he 'murdered' the deceased, the information is defective and in breach of section 135 of the Criminal Procedure Code, but such defect is not fatal to the validity of the trial where the statement of offence correctly specifies murder contrary to the relevant section of the Penal Code, the information was read over and explained to the accused, and no prejudice resulted.
Criminal Law & Procedure — Responsibility for Correctness of Information — Duty of Prosecuting Counsel
The responsibility for the correctness of an information lies upon counsel for the prosecution and not upon the Court, and this responsibility is even greater when counsel has himself drafted and signed the information.
Evidence — Extra-Judicial Statements — Use of Word 'Confession' by Magistrate — Impropriety
A Magistrate recording an extra-judicial statement must not assume that the statement will amount to a confession and must not use the word 'confession' before the statement is made, as this indicates a confusion of thought and is improper, though it may not cause actual prejudice if the statement proves to be inculpatory.
Criminal Law & Procedure — Preliminary Inquiry — Recording Accused's Statement Under Section 223 — Requirement to Record Exact Words
In complying with section 223 of the Criminal Procedure Code at a preliminary inquiry, the exact words (ipsissima verba) of the accused must be recorded, read over to him, attested, and signed by him if willing, even if they amount to no more than a statement that he wishes to reserve his defence or to say nothing, as it may be important to prove at trial what the accused said or did not say at the inquiry.
Evidence — Confession — Retraction — Corroboration — Unsworn Statement at Trial
An accused person cannot be said to have retracted a confession freely and voluntarily made merely by making an unsworn statement at trial without referring to the earlier confession, but where the unsworn statement is capable of interpretation as an implied retraction, the trial judge should expressly direct himself as to corroboration, though there is no rule of law making corroboration of a retracted confession essential.

Legislation cited (7)

  • Tanganyika Penal Code s.196
  • Tanganyika Penal Code s.200
  • Tanganyika Criminal Procedure Code s.138(a)(iv)
  • Tanganyika Criminal Procedure Code s.135
  • Tanganyika Criminal Procedure Code s.223
  • Tanganyika Criminal Procedure Code s.260
  • Tanganyika Criminal Procedure Code s.346

Cases cited (4)

  • R v Smith and Others (34 Cr App R 168)
  • R v Wilbald s/o Tibanyendela (XV EACA 111)
  • R v Gae s/o Maimba and Another (XII EACA 82)
  • R v Mukesi s/o Kihura (8 EACA 48)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Baukunda v Rex (‘Criminal ‘Appeal‘No. 18 of1951) [1951] EACA 160 (1 January 1951)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.