A Confession to a Private Citizen was Admissible and could be proven in Evidence against an Accused Person Subject to Normal Safeguards

Sango Mohamed Sango and Another V. Republic

Criminal Appeal No. 1 of 2015

Court of Appeal at Malindi

Asike-Makandia, W. Ouko & K. M’Inoti, JJA

December 4, 2015

Reported by Robai Nasike Sivikhe

Brief Facts

The appellants were charged, tried, convicted and sentenced to death for the offence of murder. According to the information, they had murdered Salim Omar Said on 2^nd February 2011 at Ngongoni Market, Magarini District, Kilifi County. During their trial, the prosecution had relied on identification evidence, circumstantial evidence and confessions to private citizens. The appellants were aggrieved by the conviction and sentence meted out by the trial court hence instituted the instant appeal. In the appeal, the appellants contended that the circumstantial evidence relied upon was unsafe and the confessions had been improperly admitted hence were inadmissible. The trial court had relied on evidence by PW2, PW3 and PW4 who testified that the appellants had informed them that they had killed the deceased. According to the appellants, such evidence amounted to proof of confession and was inadmissible. The appellants contented that confession evidence was admissible only if taken in accordance with the provisions of sections 26 and 27 of the Evidence Act. The appellants also stated that the trial court had erred because it meted out a sentence without the benefit of a social inquiry.

Issues

i.                     Whether a confession to a private citizen was admissible and could be used as evidence against an accused person.

ii.                   Whether the utterances of the appellants to private citizens that they had caused the death of the deceased amounted to confessions.

iii.                   Whether circumstantial evidence relied upon was rendered unreliable due to the fact that direct evidence was not adduced.

iv.                Whether the appellants had been offered an opportunity to mitigate before their sentence was meted.

Evidence- confessions- admissibility of confessions- whether confessions were inadmissible unless made before a judge, a magistrate or a police officer above the rank of inspector- whether a confession to a private citizen was admissible and could be used as evidence against an accused person- whether the utterances of the appellants to private citizens that they had caused the death of the deceased amounted to confessions- Evidence Act, sections 25 and 26.

Evidence- circumstantial evidence- whether circumstantial evidence could be rendered unreliable in cases where direct evidence had not been adduced- whether circumstantial evidence relied upon pointed unerringly to the appellants as the people who murdered the deceased.

Criminal Procedure- mitigation and sentencing- considering of mitigation by court before sentencing of an accused- whether a court had to afford an accused person an opportunity to mitigate before sentencing even in offences where the prescribed sentence was a death sentence- whether the appellants had been offered an opportunity to mitigate before their sentence was meted- Criminal Procedure Code, sections 216 and 329.

Criminal Procedure Code, Cap 75, Laws of Kenya

Section 216

216. Evidence relative to proper sentence or order

The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.

Evidence Act, Cap 80, Laws of Kenya

Section 25

25A. Confessions generally inadmissible

(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.

(2) The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.

Section 26

26. Confessions and admissions caused by inducement, threat or promise

A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Held

1.      A first appeal to the court of appeal was by way of a retrial that entailed an exhaustive appraisal and re-evaluation of the evidence. The court was not merely called upon to scrutinize the evidence to see whether it supported the findings and conclusions of the trial court. On the contrary, the court had to weigh conflicting evidence and draw its own conclusions. However, in re-appraising the evidence, the court had to bear in mind the fact that they did not have the advantage the trial court had of hearing and seeing witnesses as they testified. Hence, the court could not interfere with the findings and conclusions of the trial court unless it was satisfied that they were based on no evidence or on a misapprehension of evidence or the trial court had acted on the wrong principles by reaching the findings it did.

2.      The evidence against the appellants was circumstantial evidence and the prosecution failed to adduce direct evidence. However, that could not render circumstantial evidence valueless because, subject to satisfying well-known conditions, circumstantial evidence was as good as any other evidence and could prove a case with the accuracy of mathematics. Sometimes, it was deemed the best evidence ever.

3.      The necessity of close scrutiny of evidence where a conviction was based solely on identification evidence, particularly under difficult or unfavorable conditions, could not be gainsaid. Even honest witnesses could make genuine mistakes in identification of close relatives and friends. There was need for close evaluation of identification evidence and the trial court had to warn itself on the inherent danger of such evidence so as to mitigate the risk of unsafe convictions.

4.      The trial court had been satisfied that the scene of crime was well lit by electricity from nearby security lights. The three neighbors who identified the appellants knew them very well and had also been able to identify the 2^nd Appellant’s house. In addition, the identification was not from a fleeting glance and the witnesses had time to talk to the appellants at the scene.

5.      The identification of the appellants was safe because three different witnesses had recognized them and were familiar with their voices. Furthermore, in their defense, the appellants had placed themselves and the deceased at the locus in quo on the date and at the time the offence had been committed.

6.      The statements attributed to the 1^st Appellant at the scene of crime had not referred to the deceased as the person who the 1^st Appellant had killed. However, when the statement was taken in conjunction with other facts such as the bad blood between the appellant and the deceased, the arguments heard at the 2^nd Appellant’s house, the appearance of the 1^st Appellant armed with a panga at the scene, and the discovery of the body of the deceased immediately thereafter, a reasonable inference could be drawn that he had killed the deceased.

7.      The words of the 2^nd Appellant telling PW2 to mind his own business could not be considered a confession. Furthermore, proper evidence that the 2^nd Appellant had allegedly made a phone call to PW2, including the number from which the phone call had been made, the number to which the call was made to, the time, the date, ownership of the respective phone numbers among other factors should have been led. There was no credible evidence on record that the phone call was made.

8.       The words the 2^nd Appellant allegedly uttered to PW2 could not constitute a confession that she had killed the deceased. The 2^nd Appellant’s entreaty to PW2 not to tell anyone about what he had seen could not be considered a confession because PW2 had not seen the appellant kill the deceased.

9.      Subject to normal safeguards, a confession to a private citizen was admissible and could be proven in evidence against an accused person. Amendments regarding confessions that were introduced in the Evidence Act by Act No. 5 of 2003 and Act No. 7 of 2007 were informed by prevailing concerns that arose from consistent claims of use of torture by the police to extract confessions from suspects. The concerns were never about confessions to private citizens.

10. There was no provision in the Evidence Act which prohibited an accused person from voluntarily making a confession to a private citizen. If there had been an intention of introducing a general prohibition to private citizens as the appellant had claimed, there would have been no need to retain the provision in section 26 of the Evidence Act which specifically prohibited confessions made to persons in authority.

11. The trial court had not considered the circumstances under which the confessions had been made. The trial court had not addressed the question of a trial within a trial after the appellants had repudiated their confessions. In addition, the trial court had not warned itself of the dangers of relying on repudiated confessions. The confessions were not safe and ought not to have been relied upon.

12. Even though the confessions had been excluded, there was sufficient circumstantial evidence from which court could sufficiently convict the appellants. The prosecution’s evidence against the appellants, including the bad relations between the deceased and appellants; the early morning visits by the deceased to the 2^nd Appellant; the commotion emanating from the 2^nd Appellant’s house; the presence of the appellants and the deceased at the scene at the time of the commotion; the words that were uttered during the commotion; the identification, by recognition and by voice, of the appellants by three witnesses known to them for several years; the presence of the appellants at the scene armed with a panga; the efforts by the 2^nd Appellant to fend of the neighbors; and the discovery of the deceased’s body just next to the 2^nd Appellant’s house, pointed unerringly to the appellants as the persons who had committed the crime.

13. The defense by the appellants that the deceased had been murdered outside the house of the 2^nd Appellant by two people who subsequently ran off in a matatu was quite implausible and had been properly rejected by the trial court. That defense could not stand in the face of the evidence of PW8, the Matatu driver who had taken the deceased to the appellant’s home. The driver had driven off after waiting for the deceased for about 15 minutes and there was no evidence that he had picked up other passengers at the scene.

14. In determining the presence or absence of malice aforethought, the court was entitled to take into account factors such as the part of the body that had been targeted, the type of weapon used and the type of injuries inflicted upon the victim. The gory nature of the injuries inflicted on the deceased resulting to his instant death was consistent with an assault intended to cause death. The head injuries that resulted in a fractured skull and leakage of brain matter were consistent with the unlawful killing of the deceased actuated by malice aforethought.

15.  There were no inconsistencies or contradictions in the evidence adduced by the prosecution that could warrant interference with the findings of the trial court. From the collective evidence of the prosecution and defense, it was undisputed that the offence had been committed on 2^nd February 2011, between 3.30a.m to 4.00a.m, the time frame that was also provided by the defense. The reference to 3.30p.m by PW2 was a typographical error.

16. Sections 216 and 329 of the Criminal Procedure Code empowered the trial court to receive such evidence as it thought fit in order to inform itself as to the proper sentence to be passed. Although sections 216 and 329 were couched in permissive terms, it was imperative for the trial court to afford an accused person an opportunity to mitigate once they had been sentenced, even in offences where the prescribed sentence was death.

17. From the evidence on record, it was clear that the appellants had been offered an opportunity to mitigate before sentencing and they had presented their mitigation statements as required by the Criminal Procedure Code, which had been considered by court before it meted out its sentence.

Appeal dismissed.