Akrabi v Reginam (Criminal Appeal No. 86 of 1956) [1950] EACA 512 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sinclair (Vice-President), Briggs and Bacon, Justices of Appeal

MOHAMED SAEED AKRABI. Appellant (Original Accused)

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## REGINAM, Respondent

Criminal Appeal No. 86 of 1956

(Appeal from the decision of H. M. Supreme Court of Aden, Campbell, J.)

Evidence-Young persons-Corroboration-Evidence of other offences not charged—Aden Penal Code, section 354—Aden Evidence Ordinance, sections 14 and 15—Indian Evidence Act.

The appellant was convicted by the Chief Magistrate on two counts of use of criminal force with intent to outrage modesty. His appeal to the Supreme Court was dismissed and he lodged a second appeal based on two grounds. First, that the conviction could not stand on the uncorroborated evidence of two young boys even though the Magistrate had warned himself of the danger of acting on their uncorroborated evidence and secondly, that evidence of other offences of a similar nature which were not charged should not have been admitted.

Held (7-5-56).—(1) While it is a sound rule in practice not to act on the uncorroborated evidence of a child, this is a rule of prudence and not of law.

(2) Evidence of similar offences not charged is admissible where there are reasonable grounds for expecting that the accused will set up a defence of accident or mistake.

Appeal dismissed.

Ramazani bin Mawinga, 3 E. A. C. A. 39; Harris v. D. P. P., (1952) A. C. 694; R. v. Cherop A. Kineł and Kipkoech A. Kinei, 3 E. A. C. A. 124; R. v. Cratchley, 9 Cr. App. R. 232; R. v. Southern, 22 Cr. App

Morgan for appellant.

Holmes for respondent.

JUDGMENT (prepared by SINCLAIR, Vice-President).—The appellant was convicted by the Chief Magistrate at Crater on two counts of use of criminal force with intent to outrage modesty contrary to section 354 of the Penal Code and his appeal to the Supreme Court having been dismissed he appealed to this Court. We dismissed the appeal and now give our reasons for so doing.

The two complainants, Galeel and Lufti, are boys aged 9 and 11 years respectively. The appellant was the headmaster of the school which the two boys attended. The complainants gave their evidence on oath after the trial Magistrate had satisfied himself that they understood the nature of an oath. They testified that one morning and at short intervals, when they went to the appellant's room to change exercise books, the appellant took hold of their hands without their consent and rubbed them up and down against his penis. There was no corroboration of their evidence. The prosecution called three other boys from the same form as the complainants who gave evidence that the appellant had on previous occasions done exactly the same to them as he was alleged to have done to Galeel and Lufti. The trial Magistrate admitted this evidence under sections 14

and 15 of the Evidence Ordinance to show criminal intent. The evidence of the complainants, if believed, and subject to what will be said as to corroboration. was sufficient to establish the charges against the appellant. The learned Magistrate after warning himself of the danger of acting on the uncorroborated evidence of the two boys was satisfied that their evidence was "utterly and entirely truthful" in each case and convicted the appellant on each charge. He stated in his judgment that he would have found the appellant guilty without the evidence of the other offences not charged.

Two grounds of appeal were argued. They are in substance:

- (a) That the convictions cannot stand on the uncorroborated evidence of the complainants even though the trial Magistrate warned himself of the danger of acting on their uncorroborated evidence. - (b) That the evidence of the other offences not charged was wrongly admitted and, although the trial Magistrate stated that he would have convicted without such evidence, he could not have failed to have been influenced by it in arriving at his conclusion as to the guilt of the appellant.

In support of the first ground of appeal Mr. Morgan for the appellant relied on the following passage from the judgment of this Court in Njuguna s/o Wangurumu v. Reg., 20 E. A. C. A. 196:-

"Whilst it is not a rule of law that an accused charged with rape cannot be convicted on the uncorroborated evidence of the prosecutrix, it has long been the practice of this Court to look for and require corroboration in sexual offences (see Rex v. Ramazani bin Mawinga, 3 E. A. C. A.)."

Mr. Morgan did not dispute that in England in sexual cases a jury is entitled to convict on uncorroborated evidence provided the proper warning has been given but argued that the above case decided that the law in the territories within the jurisdiction of this Court is different from English law, that corroboration is required in sexual cases and that in the absence of corroboration a conviction cannot stand. We are unable to attach such a meaning to the passage cited. A rule of practice is not a rule of law and the Court expressly stated that it is not a rule of law. Furthermore, the passage must be read in relation to the particular facts of that case. "It must always be remembered that every case is decided on its own facts, and expressions used, or even principles stated, when the Court is considering particular facts, cannot always be applied as if they were absolute rules applicable in all circumstances; per Viscount Simon, in Harris v. D. P. P., (1952) A. C. 694, 711. In Njuguna's case, as in Ramzani's case (3 E. A. C. A. 39), referred to therein, the Court was considering the effect of evidence which the trial Judge had wrongly treated as corroboration and it was unnecessary to refer to the remainder of the rule namely that, provided sufficient warning is given, a conviction based on uncorroborated evidence is lawful. We are satisfied that the Court did not intend to lay down any new rule or to differ from the decision of this Court in R. v. Cherop A. Kinei and Kipkoech A. Kinei, 3 E. A. C. A. 124, in which, after referring to *Ramzani's case*, it was said:

"It was decided in the case of Freebody (25 Cr. A. R. 69) that, 'On a charge of indecent assault or any sexual offence even though the person against whom the offence is alleged to have been committed be an adult and not a child of tender years, the jury should be directed that it is not safe to convict upon the uncorroborated testimony of the complainant, but that if they are satisfied of the truth of the complainant's evidence, they may, after paying attention to that warning nevertheless convict.' This headnote in our opinion represents the proper direction to be given by a Judge in East Africa whether sitting with a jury or assessors in the case of a sexual offence when the prosecutor or prosecutrix is an adult. As against

any argument that sexual cases on the issue of corroboration should be treated on the same lines as those in which the case rests on accomplice evidence. Mr. Branigan has referred us to the case of *William Crocker*. (17 Cr. A. R. 46) in which the Court of Appeal said, 'The law regarding the corroboration of the evidence of accomplices has been referred to ... but this Court cannot accept the contention that the evidence of a girl, the victim of the offence, is on the same plane with that of the evidence of an accomplice. The objection in such a case as this is not on the grounds of complicity, but because the case is one of an oath against an oath.... The jury had the opportunity of seeing and hearing the witness, and there are persons—especially young persons—who somehow are able to convey the fact that the story they tell is true and, here, after the learned Judge's warnings, the jury came to the conclusion that the girl's story was<br>true and ought to be acted upon.' The law as set out in the two English cases to which we have referred is in our opinion the law applicable in East Africa."

The offence created by section 354 of the Penal Code is similar to the English offence of indecent assault and clearly includes that offence. As to sexual offences against boys it was laid down in $R$ . v. Cratchley, 9 Cr. App. R., 232 that "it is generally desirable, apart from any rule of law, and whether the witnesses are accomplices or not, that a warning should be given to the jury as to acting on the evidence of boys of this age-twelve and under ten-who are concerned in such an offence. It is not necessary that the Judge should use the actual words 'warn' or 'caution'; if from his conduct of the case this Court is of opinion that the jury were in fact warned or cautioned, it would not interfere." That decision was approved in R. v. Southern, 22 Cr. App. R. 6, in which the Court of Criminal Appeal said: "The jury were entitled, if they thought fit, to act on the evidence of this boy, though not corroborated.... And in *Mehamed Sugal v. R.*, (1946) A. C. 57, which was an appeal to the Privy Council from Somaliland where the Indian Evidence Act was in force, Lord Goddard said at p. $62:$

"In England, where provision has been made for the reception of unsworn evidence from a child, it has always been provided that the evidence must always be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision, and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, only goes to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.

The first ground of appeal therefore fails.

As to the second ground of appeal, we think that the evidence of similar offences was admissible under sections 14 and 15 of the Evidence Ordinance to show the intention of the appellant and to rebut a defence of accident or mistake. Those sections read: $\rightarrow$

"14. (1) Facts showing the existence of any state of mind, such as intention. knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

(2) A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.

(3) But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact."

"15. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant."

## In R. v. Brabin and Khosla, 14 E. A. C. A. 80, this Court said: —

"As regards the application of the Indian Evidence Act it has been argued rather tentatively that it was intended to be merely a codification of the English law of evidence and that, in interpreting it, English decisions must be followed. As regards that argument the position is quite simple. It is true that the Indian Evidence Act is in the main a codification of the English law of evidence and, in so fas as it is so, English decisions are, of course, most useful. But undoubtedly here and there in the Act are definite deviations from the English law and where those occur the Act must prevail over the English case law as the Act has become part of the legislation of the Colony as a comprehensive Evidence Code. See Wallace Johnston v. The King, (1940) A. C. 231."

Those observations are equally applicable to the Evidence Ordinance which is based on the Indian Evidence Act. Sections 14 and 15 of the Evidence Ordinance are undoubtedly a codification of the English law. The law as to the admissibility of evidence of "similar facts" was recently considered by the House of Lords in *Harris v. D. P. P.* (supra). In his speech in that case Viscount Simon said that the principle laid down by Lord Herschell, L. C., in Makin $v$ . Attorney-General for New South Wales, (1894) A. C. 57, remains the proper principle to apply. That principle is: -

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

Later in his speech Viscount Simon summarized the law as follows: —

"The substance of the matter appears to me to be that the prosecution may adduce all proper evidence which tends to prove the charge. I do not understand Lord Herschell's words (in Makin's case) to mean that the prosecution must withhold such evidence until after the accused has set up a specific defence which calls for rebuttal. Where, for instance, mens rea is an essential element in guilt, and the facts of the occurrence which is the subject of the charge, standing by themselves, would be consistent with mere accident, there would be nothing wrong in the prosecution seeking to estabbish the true situation by offering, as part of its case in the first instance, evidence of similar action by the accused at another time which would go to show that he intended to do what he did on the occasion charged and was thus acting criminally. R. v. Mortimer is a good example

of this. What Lord Sumner meant when he denied the right of the prosecution to 'credit the accused with fancy defences' (in Thomson $v$ . The King) was that the evidence of similar facts involving the accused ought not to be dragged in to his prejudice without reasonable cause."

In the present case, although the appellant's defence at the trial was a complete denial of the acts alleged against him, certain statements made by him when first confronted with the boys indicated that he might set up a defence of accident or mistake. Galeel and Lufti first complained to their form master, Ali Baquir, and they were followed by the other three boys who gave evidence of similar incidents. Ali Baquir then informed the appellant who said that the boys were liars. But later in the day when the boys were separately called before the appellant in the presence of Ali Baquir, the appellant did not categorically deny the allegations but used such expressions as, "What you have in your mind is only suspicion", "You got the wrong impression", and "You have made a problem out of nonsense". From the use of such expressions it was reasonable to conclude that the appellant might be setting a defence of accident or mistake; for instance that, while admitting he took the boys' hand and that they came into contact with his penis, such contact was accidental and without criminal intent. That was not crediting the appellant with a "fancy" defence but with one which there was reasonable cause to believe might be raised, and the evidence of the other offences was admissible to rebut that defence and to show that the acts were committed with criminal intent.

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