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Simon v. R. Costs of Appeal. Crim. App. 109 –D-70; 27/10/70; Spry, Ag. P., Law, Ag. V.P. and Lutta, J. A.



Simon v. R. Costs of Appeal. Crim. App. 109 –D-70; 27/10/70; Spry, Ag. P., Law, Ag. V.P. and Lutta, J. A.

The appellant was convicted of murder on the strength of two confessions made by him, one to a messenger employed in the service of the Njombe District Council and one to the Area Secretary Njombe. By section 27 of the Evidence act, no confession made to a police officer shall be proved as against a person accused of an offence. Messengers employed by Council are given powers of arrest by section 42A, Local Government Ordinance (Cap. 333) and in exercising these powers, they may exercise all such powers and perform all such duties as are by law conferred on police officers. The issue was whether the confession made to the messenger was inadmissible.

Held: (1) “While we do not feel it necessary to decide this point for the purposes of this appeal, we consider that it may be well founded, particularly having regard to the judgment of this Court in R. v. Jigungu s/o Tungu 10 E.A.C.A. 111 which lays down that a confession made to a person who is not a policeman, but who is performing the functions of a policemen, will be inadmissible by reason of section 27 of the Evidence Act.” (2) In relation to another person charged jointly with the appellant, the learned judge referred to section 30 of the Indian Evidence Act. “The Indian Evidence Act ceased to apply to Tanganyika with the enactment of the Evidence Act of Tanzania with effect from 1st July, 1967. Furthermore, section 33 of the Tanzania Act, which corresponds with section 30 of the Indian Act, prohibits the taking into consideration against an accused person of a confession made by a co-accused, and only allows a confession to be taken into consideration against the maker. It is important that this distinction should be appreciated by all connected with the administration of the law in Tanganyika.” (3) Appeal allowed.

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