Barrow and Young v The People (ZR 43 (HC)) [1966] ZMHC 19 (29 April 1966)

BARROW AND YOUNG v THE PEOPLE (1966) ZR 43 (HC) HIGH COURT EVANS J 29th APRIL 1966 Flynote and Headnote [1] Criminal procedure - Witnesses - Order of calling - Accused to precede witnesses called by accused - Section 191 of Criminal Procedure Code construed. Pursuant to Criminal Procedure Code, s. 191, if the accused elects to give evidence and to call other witnesses, the accused must give his own evidence first unless the court exercises its discretion to depart from this statutory requirement. [2] Evidence - Witnesses - Order of calling - Accused to precede witnesses called by accused. See [1] above. [3] Evidence - Weight - Contradictory statements by Prosecution witnesses - Doubt resolved in favour of accused. Where one prosecution witness gives evidence in favour of the defence, and one against, the court should resolve the doubt in favour of the accused in the absence of any good reason for preferring one witness's testimony. Cases cited: (1) R v Morrison (1911) 6 Cr. App. R 159. (2) R v Wheeler [1917] 1 KB 283. (3) Briscoe v Briscoe (1966) 2 S. L. R 205; [1966] 1 All ER 465. (4) Japhet v R 1960 R & N 738. (5) R v Nkonde 4 NRLR 245 (1949 ed. only). (6) Shaw v R ,HPA 70/1964, unreported. (7) R v Khoche 1956 R & N 635. Statute construed: Criminal Procedure Code (1965, Cap. 7), s. 191. Cunningham, for the appellants Thistlethwaite, State Advocate, for the respondent Judgment Evans J: The appellants were tried and convicted of a charge under s. 220 of the Penal Code of unlawfully assaulting William Park and thereby occasioning him actual bodily harm on the 13th February, 1966, at Monze. Each appellant was a first offender and was, on the 12th March, sentenced to pay a fine of £15 and one day's simple imprisonment. They now appeal against their convictions. 1966 ZR p44 EVANS J Five grounds of appeal were lodged, but the fifth was abandoned. [1] [2] The first ground reads: ' There was a fundamental interference with the right of Counsel to conduct his case in that the Learned Resident Magistrate refused Defence Counsel's application to call the witness Cook as his first witness.' At the trial, the Director of Public Prosecutions did not call Mr Cook, who attended as a prosecution witness, but tendered him to the defence, and Mr. Cunningham, who appeared for both appellants, wished to call Cook before his clients. He gave his reasons for this departure from normal practice, but the magistrate refused his application, stating that the correct practice was first to hear the evidence of the appellants (who had elected to testify). Accordingly Cook's evidence was heard last. The magistrate's said refusal is now submitted to have been a fundamental interference with counsel's right to conduct the defence as he thought fit. To assist this Court, Mr Cunningham handed in and read out written submissions on this ground of appeal. There is no doubt that, in the English courts, there have been occasions when the evidence of defence witnesses have been taken before that of accused persons, notably in the celebrated murder cases of Lawrence and Woods, whom Sir Edward Marshall Hall, K. C., defended. However, the point for decision here is whether the magistrate's said refusal amounted to an interference with counsel's alleged right and, if it did, whether it occasioned a substantial miscarriage of justice (s. 323 of the Criminal Procedure Code). There are but few decisions on this point. I have considered the following English cases and authorities: R v Morrison (1911) 6 Cr. App. R 159 at 165 [1]. R v Wheeler [1917] 1 KB 283 (which I consider irrelevant) [2]. Briscoe v Briscoe (1966) 2 S. L. R 205; [1966] 1 All ER 465 (the decision in which was expressly limited to the practice in domestic proceedings before Magistrates) [3]. Phipson on Evidence, 10th ed., (1963) para. 129 (and footnotes 64 and 64a). Kenny, Outlines of Criminal Law, 18th ed., (1962), para 622 (b) (and footnote 7). Archbold, Criminal Pleading, Evidence and Practice, 35th ed., paras. 560 and 1329. Roscoe, Criminal Evidence, 16th ed. (1952), at 276. Stone, Justices' Manual, 1965, Vol. I, at 377, note (a). Shaw, Evidence in Criminal Cases, 4th ed. (1954), at 268. I can find no reference to the point in Cross on Evidence, Phipson's Manual of Evidence, Cockle's Cases on Evidence, Nokes' Introduction to Evidence or Taylor on Evidence. 1966 ZR p45 EVANS J In the result, I am satisfied that, in England, the calling of the accused person before his witnesses is generally regarded as the correct practice (as stated in paragraph 129 of Phipson on Evidence, supra.), but I have little doubt that English courts may and do permit a departure from that practice for sufficient reason. I cannot find that the defence can insist upon such a departure. According to Mazengarb, Q. C., the position is otherwise in Australia. He states, at page 104 of his Book of Advocacy, '. . . a judge cannot . . . direct that a prisoner give evidence before his own witnesses . . .' In Nyasaland, Spencer - Wilkinson, CJ, in Japhet v R 1960 R & N 738 [4], went so far as to say that the accused's evidence must be taken before that of his witnesses and that it is incorrect to allow an accused to postpone his election (whether or not to give evidence) until after a defence witness has been heard. The material part of s. 204 of the Malawi (then Nyasaland) Criminal Procedure Code reads: '. . . and the court shall then hear the accused and his witnesses . . .' I mention this here so that it may be compared with s. 191 of our Criminal Procedure Code, to which I shall refer later. The above brief discussion on the practice in England and elsewhere is largely academic, because in Zambia the point is dealt with in s. 191 of the Criminal Procedure Code, in R v Nkonde, a review case reported at 245 of the 1949 edition of 4 NRLR (but omitted from the 1962 revised edition) [5] and in the recent apparently unreported judgment on appeal of Charles, J in Shaw v R, HPA. 70/1964 [6], in which Mr Cunningham appeared for the appellant and made submissions basically similar to the ones in this appeal. In his present written submissions, Mr Cunningham drew my attention to only the following (apparently favourable) part of Charles, J's judgment: ' Notwithstanding Mr Cunningham's second fallacy, I think that basically he was right that counsel for the defence in a criminal trial has a legal right to call his witnesses, including the accused, in such order as he thinks fit, unless a statute has provided otherwise.' Counsel's submission then continues: ' The learned judge goes on to consider the implications of s. 191 of the Criminal Procedure Code, which places no obligation on an accused person whatsoever of giving evidence first. The second part of the section permits two courses of action: (1) The accused person may then give evidence or make an unsworn statement on his own behalf; (2) And he or his Advocate may examine his witnesses and after that cross - examination and re-examination if any may sum up his case. No order is postulated in which these two permissive events should take place.' EVANS J Since Mr Cunningham had a copy of Charles, J's unreported judgment, I am surprised that he omitted from his written submissions, and did not mention in court, how Charles, 1966 ZR p46 J considered the said s. 191 and the fact that he held that defence counsel had no right to insist on being allowed to call the accused after other defence witnesses. I have carefully considered Mr Cunningham's present submissions and Charles, J's judgment, with which I respectfully agree, and I cannot do better than quote material passages from it. After the above - quoted passage, and judgment continued (at pages 3 and 4) : ' That arises as a result of the application of the ordinary common law rule, that a party is entitled to call his witnesses in such order as he thinks fit, to the situation created by legislation which first rendered parties to civil suits competent witnesses, and then rendered accused persons competent witnesses in criminal cases, without prescribing the order in which they should or must give evidence. (As to the right of an accused to be called with his other witnesses in such order as he or his counsel think fit, see Phipson, Evidence, 10th ed., para. 129, citing R v Olsen 1898, 62 JP 77; and R v Richards 1918 S. A. L. R 315, 14 E & E. 319 (1748), per Buchanan, J). Whether the rule of practice, whereby the accused should be called first, which has been superimposed in the interests of justice upon the accused's legal right, can be insisted upon by a court against defence counsel's insistence on his client's legal rights, is a question which I do not find it necessary to answer. To my mind, there are two obvious alternative answers to this appeal. The first is that s. 191 of the Criminal Procedure Code directs that, if the accused elects to give evidence and to call other witnesses, he should give his evidence first. The section does not say that in those actual words, but it must be construed, in my judgment, as having that effect, as its apparent object is to define the rights of an accused in respect of his addressing the court and to regulate the conduct of the defence, where he elects to give evidence and call other witnesses. It is, however, directory only, and not mandatory, since it is not apparent that the legislature intended that departure from its requirements should have the grave consequences of nullifying a criminal trial and the resultant judgment in it. But while the court may in its discretion, depart from the statutory requirement, it is not bound in any case to consider whether it should or should not adhere to it, but it is entitled to comply with the requirement as of course. Consequently, defence counsel has no right either to call the accused after other defence witnesses or to insist that his application so to call the accused be considered as a matter of discretion . . .' 1966 ZR p47 EVANS J Charles, J then referred to Shaw's election to call no evidence and went on (at 5): ' The second alternative answer is this: If, contrary to my opinion, s. 191 of the Criminal Procedure Code leaves an accused with a right to call his witnesses, including himself, in such order as he thinks fit and the ruling of the learned Senior Resident Magistrate deprived the appellant of that right, it has not been established that the deprivation in fact occasioned a substantial miscarriage of justice so as to take the case out of s.323 of the same Ordinance. Disregard of a rule of law, or of a rule of practice which has been adopted as an aid to a rule of law, causes a substantial miscarriage of justice in fact if it has deprived an accused of an opportunity of acquittal which would otherwise have been reasonably open to him had the rule been observed.' In the present case, both appellants and the witness Wood gave evidence, and the appellants were clearly not deprived of an opportunity of an acquittal. Ground 1 of this appeal accordingly fails. By his other grounds of appeal, counsel strongly attacks the convictions on the merits, submitting that the magistrate failed properly to collate the evidence, that he fluctuated, vacillated and arrived at compromises in his judgment and wrongly accepted the complainant's evidence. Examples of the matters complained of are set forth in detail in the grounds of appeal, and I do not find it necessary to refer to them in extenso, in view of the decision I have reached. Although, of course, the magistrate had the advantage of observing the witnesses, for the following reasons I do not think he was justified in accepting virtually in toto the complainant's evidence. Concerning two matters going to credibility, the complainant was shown to have lied on one, and the appellants should have been given the benefit of the doubt on the other. As to the first matter much evidence was given by the prosecution and by the defence concerning the defence allegations that the complainant started the whole incident between him and the appellants by misconducting himself, after losing a game of dice (played by the three of them to determine who should pay for a final round of drinks), by throwing the money for the drinks on the bar, throwing the dice (in their box) at the first appellant, calling the second appellant a 'Glasgow keelie' (an offensive term to a Scotsman like the second appellant) and by kicking or attempting to kick him. The complainant flatly denied throughout the trial that any game of dice was played, but the defence witness Cook said in his statement to the police, to which statement he adhered in evidence, that the parties started to play dice, and the magistrate said in his judgment that Cook testified truthfully and he found as a fact that there was 'at least an attempt at a game of dice', thus disbelieving the complainant on the point. 1966 ZR p48 EVANS J The complainant said in cross - examination that if he had played dice, but could not remember doing so, he must have been drunk. The second point concerning credibility was the defence allegation that the complainant excreted in his bed at the Monze Hotel after the incidents complained of. If true, this tended to support the defence evidence that the complainant was drunk. He strenuously denied having fouled his bed, but the fourth prosecution witness, a chambermaid at the hotel, testified that his sheets were fouled when she saw them on the morning of the 14th February. Since the Director of Public Prosecutions called this witness, it must be assumed that he put her forward as a witness of truth, and he made no attempt to discredit her on this point; for example, by seeking leave to treat her as a hostile witness or by producing or informing the court of any prior inconsistent statement she may have made. The magistrate purported to resolve this conflict between prosecution witnesses by twice merely saying that he disbelieved the chambermaid, without stating any reason for so doing. Presumably he preferred the evidence of the complainant upon this matter, but he did not in terms say so, and [3] where one prosecution witness gives evidence in favour of the defence, and one against, then in the absence of any good reason for rejecting the evidence of the one and accepting the evidence of the other, the court should resolve the doubt in favour of the accused. (See for example, the judgment of Spencer - Wilkinson, CJ in the Nyasaland case of R v Khoche [7]. I do not consider that the magistrate was justified in rejecting the unchallenged evidence of the first appellant, and that of the chambermaid, that the sheets were fouled. The magistrate said, on page 5 of his judgment, that he found as an undisputed fact that the complainant called the second appellant a 'Glasgow keelie'. By so finding, he accepted the defence evidence on the point and disbelieved the complainant's evidence to the effect that he did not use that offensive term to or about the second appellant, but used it only in a general sense, not directing it to anyone in particular. The magistrate appears to have overlooked the exaggerations in the evidence of the complainant who said that the appellants 'knocked him out' in his bedroom and that he suffered a dislocated nose. The medical evidence contained no reference to his nose having been dislocated, and no other evidence points to his having been 'knocked out' - indeed, the magistrate found that he was merely 'dazed' (a word which he used in his judgment when reiterating the complainant's evidence). I doubt whether the magistrate fully considered the state of sobriety of the complainant. He found that he was not drunk at the material time, disbelieving the evidence of the first appellant on the point, but he does not appear to have considered the likely effect on the small complainant of his having consumed that evening seven beers - a fact which is established by the combined evidence of the complainant and of Cook, and he misdirected himself when, on 1966 ZR p49 EVANS J the second page of his judgment, he said that the prosecution witness Elwell testified that the complainant drove his car away from the police club 'perfectly normally' earlier in the evening. Elwell did not say that: he said, 'He was sober. Park drove his own car. I saw him driving away.' At that stage, the complainant had (on his own admission) consumed six beers, and, according to Cook (whose evidence was accepted), he had another at the Monze Hotel before Cook left, which was before the violence started. The magistrate might have more fully considered the complainant's condition had he properly evaluated the evidence concerning the game of dice and the fouling of the sheets. Nowhere in his judgment did the magistrate remind himself of the standard of proof required. He merely said, on page 4: 'Before going any further, I wish to make it clear that the onus of proof was on the prosecution throughout the trial.' In the light of what I have already said, and of what I say hereafter, I am left with the firm impression, upon the whole of the evidence, that the strict standard of proof - beyond reasonable doubt - was not achieved, and this is further indicated by the following: (a) On page 6 of his judgment, when dealing with the events in the bar (which events he said, earlier in his judgment, did not form part of the charge, and then, later, said must be part of the res gestae), the magistrate said, 'I am going to accept that what happened is more or less as follows.' He then found that the complainant drank a beer (his seventh that evening) and that there was an attempt at a game of dice, thus disbelieving the complainant on both these points. Then he found, accepting the complainant's evidence, that he did not kick the second appellant, and he added that he was 'inclined' to believe the complainant (that is, his evidence that in the bar he did not kick the second appellant who did not, as a consequence, punch him). (b) Again on page 6 of the judgment, after reviewing the first appellant's version of why he went to and what transpired in the complainant's room, and after stating that he did not believe that this appellant entered the room because he heard bathwater running, the magistrate said: 'But I shall accept the first accused's story in fairness to the second accused.' This involved findings that the first appellant hit the complainant in self- defence and that the second appellant did not assault him in his bedroom, but the magistrate then went on to say: 'The first accused therefore entered Park's room without licence but I do not accept that Park threatened Barrow in any way. This is simply not true. The first accused assaulted Park brutally without Park provoking him in any way. The first accused has accepted responsibility of assaulting Park and he must now bear the consequences. The second accused was not truthful in his evidence - in - chief either, but at least he said he was 1966 ZR p50 EVANS J sorry for what had happened and I am satisfied that when he said this in his warning and caution statement, he was referring to the assault on Park in Park's bedroom. I doubt whether Park knew what happened after he received the first blow. The first accused is no doubt deliberately protecting the second accused, a very admirable thing to do, but the second accused cannot accept liability as easily as that. I am satisfied that Park told the truth when he said in his evidence that the second accused hit him as well.' (c) I can find no justification for the magistrate's stated satisfaction that the second appellant was referring to the alleged assault on the complainant in his room when he said, when charged, 'I was severely provoked. I am very sorry that this happened but the man insulted me.' Neither the place, nor even the town where the assault was alleged to have taken place, was specified in the formal charge, the magistrate said (page 5 of the judgment), that he accepted that the second appellant was provoked, and the nub of the latter's defence was that he struck the complainant in the bar because he insulted and kicked him, but did not touch him in the bedroom. The matters discussed above indicate considerable confusion in the magistrate's mind in this case, which involved a large volume of conflicting evidence. It was doubtless a difficult task to collate the evidence and determine where the truth lay. Having closely considered the whole record and the submissions of both counsel, I suspect that the whole truth of the incidents in the hotel was not put before the lower court, and I conclude that the magistrate should have entertained a reasonable doubt as to the guilt of the appellants. These appeals are allowed, the convictions and sentences are reversed and the appellants are acquitted. Their fines, if paid, are to be refunded to them. Appeals allowed 1966 ZR p51