Boghani v Rex (Criminal Appeal. No., 25.4, of, 1ASO.,) [1951] EACA 152 (1 January 1951)

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, LOCKHART-SMITH, Ag. Vice-President, and WINDHAM, J. (Kenya).

## MOHAMEDALI PREMJU SAMU BOGHANA Appellant

#### REX, Respondent

## Criminal Appeal No., 254 of 1950.

(From the decision of H. M. Supreme Court of Kenya (Appellate Side)-Thacker and Modera, J. J.).

Visit by Court to locus—Investigation carried out there.

The appellant was convicted by the Resident Magistrate, Nairobi, of official corruption. The Magistrate went to the *locus* and there conducted a test with the assistance of others, and on his return to Court embodied the result in a note on his record.

Held (7-3-51).—The object of a view is to enable a Judge or jury in a difficult case to understand the evidence by an actual inspection of the terrain, it should not be made the ogeasion, for camying out of investigations. In rare cases it may be that the Judge or<br>Magistrate may think it essential that certain tests should be carried out to; elucidate issues in doubt arising out of the nature of the terrain, in such cases the Judge must be careful to see that such tests are conducted by persons who will be in a position to give evidence as to their nature and character on his return to Court.

Appeal dismissed.

## O'Brien Kelly for appellant.

Todd, Crown Counsel (Kenya), for Crown.

JUDGMENT.—This is a second appeal from a conviction in the Resident Magistrate's Court, Nairobi, on a charge against the appellant brought under section .93 (2) of the Penal Code. Two of the points of law taken by appellant's counsel are the same as were taken unsuccessfully in the Appeal Court below, but Mr. O'Brien Kelly has abandoned the point that there was not sufficient evidence learned **Magistrate** which he concluded before the $\alpha$ that the complainant Thompson was a person employed in the public service, an essential ingredient of the charge. Mr. Kelly still maintains, however, that the evidence before the Magistrate was quite insufficient to support the second necessary ingredient that it was a part of Thompson's duty as a Maize Control Officer to attend to the duty of grading bags. This submission was overruled by the Supreme Court of Kenya and we consider correctly, for although the evidence showed that the actual work of grading the bags was left to the African staff, Mr. Thompson in his evidence made it quite clear that he had a general supervisory. control and a responsibility in seeing that the work of grading the bags was carried out. We think it a fair inference to make that had Thompson wished to interfere with the process of grading by the African staff he could have done so and that the staff would have followed his instructions.

On the second point, as in the case of the Court below, we have experienced some difficulty. The learned Magistrate had every right to visit the locus in the presence of the appellant and his counsel, if he thought, as presumably he did. think, that a view would help him to appraise the evidence correctly so that he could arrive at a just conclusion. Once at the *locus*, it is clear, however, from his

own note, that he did much more than merely view it, as a juryman would view it, for the purpose of understanding the evidence or testing it in respect of the features of the locality. He himself, as he says, "conducted a test" with the assistance of others, and on his return to Court he embodied the result in a note on his record: Instead of adopting this procedure, the learned Magistrate should have of course called witnesses to give evidence as to what they did under his<br>direction at the locus, and they should have been asked to state the results of their observations. The defence would then have had an opportunity, through the Court, of putting questions to these witnesses as to the conditions and circumstances of the test. Is this irregularity, fatal to the conviction? We have come to the conclusion that it is not, although not for exactly, the same reasons as were given in the judgment in the Court below. Mr. O'Brien Kelly has argued with much force that faced, with the defence evidence that a conversation inside the office could not be heard clearly outside, the Magistrate decided on a view, and that but for the introduction on to the record of his own observations, unsupported by evidence, he might have come to a different view, as to the amount of credence to be attached to the prosecution witnesses, Twelftree and Noon (R. W.s. 2 and 3). If the conviction of the appellant depended on the evidence of these two witnesses we would agree with Mr. Kelly but in fact it does not. The learned Magistrate accepted the evidence of Thompson $(P:W: 1)$ implicitly as he was entitled to do, for in his judgment he says that this witness "appeared to be an absolutely truthful witness who was quite unshakable in cross-examination". Now on this evidence, quite apart from any corroboration offered by the witnesses Twelftree and Noon as to what they overheard of the conversation between the appellant and Thompson, it is abundantly clear that the appellant did corruptly offer Thompson a large sum of money and did in fact part with the sum of Sh. 40 as an earnest of his intentions, which sum he placed under a blotting pad when Thompson was looking out of the window. We are quite unable to accept Mr. Kelly's submission that the part played by Thompson in the incident puts him into the position of an accomplice whose evidence requires corroboration. It is true that it was at Thompson's suggestion that the Sh. 40 was produced by the appellant but this suggestion was only made at the close of a long conversation during which the appellant had fully revealed his corrupt intentions. Certainly in cases of this nature corroborative evidence is desirable, but when it is lacking or incomplete, a Court is still entitled to convict, if, as in the present case, the Judge or Magistrate is fully satisfied as to the honesty of the complainant and the truth of his evidence. Indeed, in the present case, even if what the witnesses Twelftree and Noon say they heard is disregarded, what they saw is at least partial corroboration of Thompson's evidence. Both these witnesses saw the appellant bring in a parcel and place it on the complainant's desk, a parcel which was subsequently found to contain 500 cigarettes, and both of them saw the appellant place notes under a blotting pad when Thomson's back was turned, an action which cannot be reconciled with the appellant's statement in his evidence that this money was intended as a loan. Both of these witnesses also testified to the appellant's extreme agitation when they entered the office and taxed him with the offence. On this state of the evidence therefore, we are of the opinion that whatever doubt there may have been in the learned Magistrate's mind on certain aspects of the evidence which induced him to accede to the suggestion made by the defence that he should visit the *locus*, there was evidence before him which he ultimately accepted, and evidence which was quite independent of anything the Magistrate saw or did at the locus, which fully justified the conviction. It is for this reason that we are completely satisfied that the irregularities which arose out of the Magistrate's visit to the *locus* in no way resulted in any miscarriage of justice. Neither is this a case in our opinion where there has been any violation of the principle that justice must not only be done but must be seen to be done, because the appellant

and his counsel were present with the Magistrate at the locus and must have seen what took place there. Furthermore, had evidence been taken by the Magistrate as to what happened at the locus it is inconceivable to us that any questions put by the appellant's counsel, could have affected the result of the trial, in the light of the other evidence which the Magistrate accepted. We are unable to hold, therefore, that the learned Judges in the Court below erred in rejecting this ground of appeal also.

This case is one however which illustrates the dangers which may attend a view of a *locus* unless great care is taken by the presiding Judge or Magistrate. The object of a view is to enable a Judge or Jury in a difficult case to understand the evidence better by an actual inspection of the terrain, it should not be made the occasion for the carrying out of investigations which should or could have been done earlier by the Police before the person accused was brought to trial. In rare cases it may be that the presiding Judge or Magistrate may think it essential that certain tests should be carried out to elucidate issues in doubt arising out of the nature of the terrain; in such cases the Judge must be careful to see that such tests are conducted by persons who will be in a position to give evidence as to their nature and character on his return to Court.

Both the points of law taken by the appellant's counsel in this second appeal fail and the appeal is dismissed.