Rex V. Daniel Bubowariowe Bebetebe (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Murder contra. section 319 of Criminal Code,” Dying Declaration “—Admissibility thereof under section 51 of Criminal Procedure Ordinance not governed by sections 44 and 45 of same Ordinance—Accused, if under arrest, need not be present when ” dying declaration ” is made but his presence, when practicable, is preferable.
Held: Appeal dismissed.
There is no need to set out the facts.
C. N. S. Pollard for Crown.
Stella Thomas for Appellant.
The following joint judgment was delivered
KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.
In this case the appellant was convicted of murder by Waddington, J., sitting as a Judge of the High Court in the Calabar-Aba Division, and now appeals to this Court.
Shortly the facts are that the appellant went out hunting one day and getting lost, spent the night in the bush. Next morning, the 10th May, 1937, he found his way to the compound of a friend who gave him palm wine. Another man took him home in a canoe. There he drank gin and had some food, but not enough, and he gave his wife threepence to get some more. She gave it to their daughter to fetch rice. As the woman came out of the house to get water he struck her with his matchet without any previous words. She was taken to Degema hospital to which she was admitted on the 14th May. The Medical Officer’s evidence is that she was suffering from a deep cut over the right side of the head, the skull was fractured, the wound discharging; that she was in a poor condition on arrival due to the injury; that she rallied somewhat under treatment; but about a fortnight after admission showed signs of mental irritation and refused to take food; that she died on the 22nd June; that her wound had healed before she died; that, in his opinion, death was due to complication arising from the injury which lied involved the brain.
On the 15th May, i.e. the day after the woman’s admission to hospital, a Justice of the Peace, with an interpreter, visited her at the hospital and took from her a ” dying declaration.” In this after giving her name she begins by saying ” I am wounded and likely to die.” She then relates the facts so far as known to her. Although the appellant was in custody at that time, having been arrested shortly after inflicting the blow, he was not present when the statement was made, and so far as the record shows, was not given an opportunity to be present.
This .” dying declaration ” was duly proved at the trial and was admitted as evidence against the appellant. The only defence set up was that the appellant was drunk when he struck his wife and did not know what he was doing. As to this the finding of the trial Judge was ” I am satsified on the evidence ” that he was not in such a state of intoxication as would have ” any bearing on the act now charged.”
The grounds of appeal are three in number, viz : (1) wrongful admission of evidence, i.e. the ” dying declaration,” (2) that the cause of death was not sufficiently proved and (3) that owing to drunkenness there was no malice aforethought.
The second and third grounds can be quickly disposed of. As to the second we are satisfied that the medical evidence already referred to was amply sufficient to establish that death was due to the blow struck by appellant. As to the third we see no reason to disturb the finding of the learned trial Judge.
But the first ground raises a question of very great general importance and of some difficulty.
The provisions of the law in Nigeria governing the admission of dying declarations are to be found in section 51 of the Criminal Procedure Ordinance (Cap. 20) which reads as follows :—
” 51. Upon a trial where the cause of death of a ” deceased person comes into question, the ” declaration of such deceased person, whether it ” be made in the presence of the accused person or ” not, may be given in evidence if the deceased ” person at the time of making such declaration ” believed himself to be in danger of approaching ” death, although he entertained at the time of ” making it hopes of recovery.”
It is to be noted that these provisions are very materially different from the law in England, where before a dying declaration is admissible it has to be shown that it was made in a settled hopeless expectation of immediate death. Here the requirements are far less and we are of opinion that the woman’s own statement ” I am wounded and likely to di’e ” is sufficient,
comply with the section and shows that she believed herself to be in danger of approaching death. The statement was not inadmissible on this ground. But sections 44 and 45 of the same Ordinance provide for the preservation of testimony in certain cases in the following terms :—
” 44. Whenever it appears to any Judge, Commissioner ” of the Supreme Court or Magistrate, that any ” person dangerously ill or hurt, and not likely to ” recover, is able and willing to give material ” information relating to any offence, and it shall
not be practicable to take the deposition in ” accordance with the provisions of this Ordinance ” of the person so ill or hurt, such Judge, ” Commissioner of the Supreme Court or Magistrate, ” may take in writing the statement on oath or ” affirmation of such person, and shall subscribe ” the same and certify that it contains accurately ” the whole of the statement made by such person,
and shall add a statement of his reason for taking ” the same, and of the date and place when and ” where the same was taken, and shall preserve such ” statement and file it for record.
|If the statement relates, or is expected to relate, to an offence for which any person is under a charge or committed for trial, reasonable notice of the intention to take the same shall be served upon the prosecutor and accused, and if the accused is in custody, he may be brought by the person in whose charge he is, under an order in writing of the Judge, Commissioner of the Supreme Court or Magistrate, to the place where the statement is to be taken.”
It is suggested that section 51 must read in conjunction with these sections, and that inasmuch as there was a failure in this case to comply with their provisions, the dying declaration ought not to have been admitted.
We have given very careful consideration to this argument and have come to the conclusion that it is fallacious. The respective sections, 44 and 45 on the one hand and 51 on the other are placed under different sub-heads in the Ordinance, and they deal with different and distinct matters, namely the first two with the preservation in all cases of the testimony of persons likely to die, and the third with the very special case where the cause of death of a deceased person is in question and that person has made a declaration before death. In this particular case it is expressly provided that the presence or otherwise of the accused person makes no difference to the admissibility of the declaration.
Whilst we think that it would be wrong as a matter of law, to require that the provisions of sections 44 and 45 shall have been complied with before admitting as evidence a dying declaration tendered in pursuance of the provisions of section 51, we must not be understood as suggesting that an accused person should not be given an opportunity of being present when practicable. On the contrary we are of opinion that such an opportunity should always be given when possible, not only because it is obviously fair to the accused, but also because a statement upon which there has been an opportunity to cross-examine will carry far greater weight, if not shaken in cross-examination, than one which has not been subjected to that test.
We are of opinion that the dying declaration was rightly admitted ; but even if we had come to a contrary decision it would have made no difference to the present case, because there was abundant other evidence to support the conviction, and we should not have quashed the conviction on this ground.
The appeal fails on all grounds and is dismissed.