Wakilii

Rex v Gabriel (Cr. App. No. 111-1935.)

East African Court of Appeal · [1936] EACA 36 · 1936 Appeal Allowed — Accused Acquitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from murder conviction
Decision
Accused acquitted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and acquitted the accused. A statement by the deceased describing his assailant, elicited in cross-examination of a witness, was inadmissible because it did not satisfy the requirements for a dying declaration under English law. The deceased was not proved to have believed himself in actual danger of death or to have abandoned hope of recovery at the time he made the statement. Since the trial judge relied on this inadmissible evidence in convicting the appellant, the conviction could not stand.

Outcome

Accused acquitted

Facts

The appellant was charged with the murder of Chikwaza. A witness, Constable Edward, found Chikwaza wounded. During cross-examination, Edward testified that Chikwaza stated: 'I have been wounded by a man whom I do not know. He is known to James's sister Alone. Alone was asking me whether her mother was at the beer drink.' In re-examination, Edward added that Chikwaza said the man had protruding eyes. The trial judge convicted the appellant, relying partly on this statement and the assessors' opinions, which referenced the deceased's description of the assailant. The appellant was described as having slightly protruding eyes and was dressed as Chikwaza had described. There was no evidence that Chikwaza believed himself to be in danger of death when making the statement.

Issues

  1. Whether a statement made by the deceased regarding the identity of his assailant, elicited in cross-examination, was admissible as evidence.
  2. Whether the statement satisfied the requirements for a dying declaration under English law applicable in Nyasaland.

Orders

  • Appeal allowed.
  • Accused acquitted.

Rules and key headnotes

Evidence — Dying Declaration — Requirements Under English Law
For a statement by a deceased person to be admissible as a dying declaration under English law, the deceased must be proved to the satisfaction of the judge to have been at the time of making the declaration in actual danger of death and to have abandoned all hope of recovery.
Evidence — Dying Declaration — Inadmissibility of Statement Elicited in Cross-Examination
Where a statement by a deceased person does not satisfy the requirements for a dying declaration, it is inadmissible as evidence to prove the guilt of the accused, notwithstanding that the statement was elicited in cross-examination rather than adduced in examination-in-chief.
Criminal Appeal — Misreception of Evidence — Effect on Conviction
Where a trial judge rests a finding of guilt at least in part on inadmissible evidence and the appellate court is unable to say that the judge must in reason have reached the same conclusion had the inadmissible evidence been excluded, the conviction cannot stand and the appeal must be allowed.

Full judgment

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

Rex v Gabriel (Cr. App. No. 111-1935.) [1936] EACA 36 (1 January 1936)
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.