Wakilii

Rex v Hussein (Criminal Appeal No. 177 of 1946)

East African Court of Appeal · [1946] EACA 46 · 1946 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from H.M. Supreme Court of Kenya against sentence
Decision
Sentence of 12 months imprisonment with hard labour and fine of Sh. 2,000 or 6 months imprisonment with hard labour upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A prosecutor may not make statements to the court after conviction but before sentence which, if challenged, could not be proved by legally admissible evidence. A confession to a police officer is inadmissible under section 25 of the Evidence Act. The same rules of legal proof that apply in the substantive trial apply to controversies as to facts upon which sentence is to be based. Appeal dismissed.

Outcome

Sentence of 12 months imprisonment with hard labour and fine of Sh. 2,000 or 6 months imprisonment with hard labour upheld

Facts

The appellant was convicted of being in possession of industrial alcohol (methylated spirit) contrary to Defence (Possession of Industrial Alcohol) Regulations 1945. After conviction but before sentence, the prosecuting police officer informed the court that the accused had confessed to him that he had bought the spirit from a Banyani at Nakuru and intended to sell it at Sh. 4 a bottle. The appellant did not admit this statement and had previously denied in cross-examination telling the police officer anything about where he bought the spirit. The appellant had a recent previous conviction for selling spirit to Africans for which he was fined Sh. 500. The trial magistrate sentenced the appellant to 12 months imprisonment with hard labour and a fine of Sh. 2,000 or 6 months imprisonment with hard labour. The first appellate court held that the statement could be considered provided the appellant was given opportunity to affirm or deny it in allocutus.

Issues

  1. Whether a prosecutor may properly make a statement to the court after conviction but before sentence regarding a confession made to a police officer which the accused does not admit.
  2. Whether section 25 of the Evidence Act applies to matters in controversy after conviction but before sentence.

Orders

  • Appeal dismissed.

Rules and key headnotes

Evidence — Confessions — Admissibility — Statements to Police Officers
A confession made to a police officer is inadmissible in evidence under section 25 of the Evidence Act and may not be used by a prosecutor in making statements to the court after conviction but before sentence.
Criminal Procedure — Sentencing — Statements by Prosecutor — Admissibility
It is improper for a prosecutor after conviction and before sentence to make any statement to the court against the convict which, if challenged, the prosecutor would be unable to prove by legally admissible evidence.
Evidence — Rules of Proof — Application to Sentencing
On a controversy as to the facts upon which sentence is to be based, the same rules as to legal proof as in the substantive trial must apply.
Criminal Procedure — Allocutus — Effect of Silence
Where an accused has already given sworn evidence denying a matter, a response of 'no more to say' in allocutus does not constitute an admission of a statement made by the prosecutor but merely indicates the accused sees no reason to repeat the denial already made.

Legislation cited (2)

Full judgment

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

Rex v Hussein (Criminal Appeal No. 177 of 1946) [1946] EACA 46 (1 January 1946)
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.