REPUBLIC v. KONKOMBA

JUDGMENT OF TAYLOR J.

I have had considerable difficulty in deciding the issue in this case as to admissibility since the submissions which counsel made were not supported by any decided cases at all. The senior state attorney, Mr. Agudetse, promised to make available some authorities but I have received none and my ruling is therefore based on the result of my own researches unassisted, I regret to say, by counsel.

The accused person in this case is facing a charge of murder. It is in the present state of things, the most serious offence known to our law. The person alleged to have been murdered by the accused is his nephew. The offence is alleged to have been committed on 28 March 1975, at Bule village. On 31 March 1975 an investigation statement on caution was taken from the accused. In this statement he denied knowing anything about the case. This is what he said on caution:

"I know the deceased Mbagara as my nephew. We were all staying together when the deceased father quitted to Ghafoyole village. On 27 March 1975, the deceased came and greeted me as he came from Ghafoyole. After we exchanged the greetings he went away. I did not see him and did not hear anything again until in the morning of 29 March 1975, 1 had information that someone had killed him. I became surprised so I could not visit the scene until I heard that some policemen came there. In fact as I am an old man and also sick I don't go among the young men and so I do not know whether there was any previous quarrel between the deceased and any other person. I do not know anything about the death of my nephew Mbagara Konkomba."

On 4 April 1975 another investigation statement was taken from him, This was a statement in which the accused allegedly admitted the crime. When in the course of the trial the prosecution attempted to tender this statement in evidence, the defence objected to it on the ground that when [p.273] the accused made the statement he was mentally disturbed as a result of the serious injury to himself and for which he was on admission. The prosecution maintained that the statement was admissible on the ground that it was the physical health or the accused which was deteriorating and not his mind and since a witness had said the accused was normal and no inducement or threat had been held out to him, the statement was voluntary and thus admissible.

Before considering the legal significance of these submissions, I think the facts which emerged, inter alia, from the voi