Berger v Rex (Criminal Appeals Nos. 23 and 24 of 1941) [1940] EACA 54 (1 January 1940)

# APPELLATE CRIMINAL

#### Before Sir Joseph Sheridan, C. J. and Bartley, J.

### HANS BERGER, Appellant

## v.

# REX. Respondent

## Criminal Appeals Nos. 23 and 24 of 1941

Criminal Law—Criminal Procedure—Defence Regulations—Consolidated appeal from sentences in two different cases—Application for leave to admit further evidence—Offences arising out of the same transaction—Powers of petition to His Excellency the Governor.

The appellant was convicted on his own confession in the Resident Magistrate's Court, Nakuru, of two offences against Regulation 18 of the Defence Regulations. There were two separate cases against the accused. The first offence to which the appellant pleaded guilty was that of using a motor vehicle without the requisite permit *contra* clause 1 of the order of the Commissioner of Police. Government Notice No. 443/40, he being a male enemy alien to wit a German. The second offence to which he pleaded guilty was that of being out of door at 9.20 p.m. without the permission of a police officer contra clause 3 of the order of the Commissioner of Police, Government Notice No. 339/40, he being a male enemy alien to wit a German.

The appellant was sentenced to a term of imprisonment with hard labour in each case.

The appellant appealed to the Supreme Court on the grounds that in all the circumstances the sentences were excessive and applied for leave to call fresh evidence. The appeals were consolidated and become one appeal.

**Held** $(16-4-41)$ .—(1) That there were no good grounds for allowing further evidence to be taken.

(2) That in view of the fact that the two offences arose out of the same transaction the sentences might well be varied so as to run concurrently.

#### Allen for the Appellant.

#### Spurling, Crown Counsel, for the Crown.

JUDGMENT.—Counsel for the accused has represented to us in the first place that the learned Resident Magistrate was so busy that he did not have the time to give sufficient consideration to this case. This representation apparently has been made on instructions from his client. It does not find any favour with the Court and the record in no way suggests any dereliction on the part of the magistrate. If the accused did not put forward facts which might have operated in mitigation of sentence then he alone is to blame. With regard to the application to allow further evidence to be taken, such applications are rarely entertained and then only for good reasons, such for instance that new matter has come to light which could not have been available at the trial by the exercise of due diligence. That reason cannot apply here, for from what counsel has stated the accused was possessed of the information which is now sought to be put forward as evidence at the time of the trial. It is open to the accused for whatsoever reason he may be advised to petition His Excellency the Governor for a remission of sentence. All that this Court considers itself entitled to do is to direct that the sentences imposed shall run concurrently and not consecutively, for the reason that the two offences arose out of the same set of circumstances. This is the only variation in sentence which we order.