Daitayi and Others v Reginam (Criminal Appeal No. 369 of 1955) [1950] EACA 493 (1 January 1950)

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

### Before Sir Newnham Worley (President), Bacon, Justice of Appeal, and CORRIE, J. (Kenya)

# (1) OLORO s/o DAITAYI, (2) KIPKIROR s/o BUTEI, (3) KIPTARUS ARAP CHOGE Appellants (Original Accused)

## REGINAM, Respondent

#### Criminal Appeal No. 369 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, Chief Justice)

### Discretion—Refusal of trial Judge to view the locus in quo-Witness-Crown not obliged to call—Kenya Criminal Procedure Code, sections 150 and 378 (1).

The accused had all been found guilty of rape. One ground of appeal was that the trial Judge had refused to view the site where the offence was committed. A second ground was that the Crown had failed to call a man alleged to have been a witness and had thus deprived the defence of an opportunity to crossexamine him.

Held (16-3-56).-(1) That a trial Judge does not exercise his discretion unjudicially in refusing to grant an application by the defence for a view of the site where the offence was alleged to have been committed.

(2) Whether a witness should be called by the prosecution is a matter within the discretion of prosecuting counsel and a Court will not interfere with that discretion unless. perhaps, it may be shown that the prosecutor has been influenced by some oblique motive.

Appeals dismissed.

Cases referred to: Abdulla v. Rex, (1936) 3 E. A. C. A. 51; Adel Muhammed v. A.-G. for Palestine, (1944) A. C. 156; Ibrahim $s/\sigma$ Ludomia v. Reg., (1953) 20 E. A. C. A. 185; R. v. Bryant and Dickson, (1946) 31 C. A. R. 146; Rex v. Katambo, (1938) 5 E. A. C. A. 141.

#### Dinshaw for appellants.

Brookes for respondent.

JUDGMENT (prepared by Worley, President).—These three appellants were convicted in the Supreme Court of Kenya sitting at Nairobi of the offence of rape and were sentenced to imprisonment with hard labour for periods of three years, two years and two years respectively. No application appears to have been made to the learned trial Judge for a certificate under section 378 (1) of the Criminal Procedure Code and certainly no such certificate has been given. The appeal, therefore, was restricted to questions of law alone. After hearing Mr. Dinshaw for the appellants and counsel for the Crown respondent we dismissed the appeals and now give our reasons for so doing: —

The appellants' main ground of appeal was that the learned trial Judge exercised his discretion unjudicially when refusing to grant an application made by the defence for a view of the site where the offence was alleged to have been committed. In our view there is no substance in this allegation. The three appellants are or were police constables and at the time of the alleged offence were on duty checking passes near the main road bridge over the Thika River. The complainant alleged that they stopped her and dragged her into some bushes where the offence was committed. The main corroborative evidence was that of a tribal policeman, Muli, who was on guard at the district commissioner's house across the other side of the valley. On guard with Muli there was also another tribal policeman named Wanyoike but this man did not give evidence at the trial in circumstances which we shall consider later. The evidence of Muli was attacked on the ground that it was physically impossible for him to have seen what he claimed to have seen, and it was for this reason that the application for a view was made. The prosecution, however, did call the investigating officer Inspector Nasib Singh who testified that on the day following the alleged incident he inspected the site in company with the complainant and some constables and that, from the point indicated by the complainant as that where she had been raped, he could clearly see the district commissioner's house and a person standing at the gate of it. The distance was about 400 yards in a direct line with no intervening obstruction except some trees which partially screened parts of the house. The witness was not crossexamined on this aspect of his evidence and in these circumstances it is, we think, unreal to suggest that the learned Judge, having this evidence before him, did not exercise a proper discretion.

Mr. Dinshaw next complained of the following passage in the summing-up: —

"The other tribal policeman who is alleged to have seen this incident was Wanvoike s/o Gitau. He was not called as a witness by the prosecution and, ordinarily, if a material witness is not called, it may be presumed that the evidence he would give would not be favourable to the side which refrains from calling him. But that is not a presumption which must be drawn: it may be. It is much less likely to be right when that witness is offered to the other side to be called by them if they wish, and they do not call him either. In this case Wanyoike s/o Gitau was not called by the prosecution and was offered to the defence if they wished to call him. They were not, of course, bound to call him."

It appears from the record that Wanyoike was present at the trial but was neither called nor tendered for cross-examination by the prosecution. He was, however, available for the defence. On this Mr. Dinshaw sought to found a complaint that he ought to have been given an opportunity to cross-examine this witness.

The question of the discretion of the prosecution in a criminal case as to what witnesses they should call has been considered by this Court many times, the earliest reported case being *Abdullah v. Rex.* (1936) 3 E. A. C. A. 51, but it is not now necessary to go further back than the case of Ade! Muhammed v. A.-G. for *Palestine*, (1944) A. C. 156 at p. 167, which was followed and applied by this Court in Ibrahim s/o Ludomia v. Reg., (1953) 20 E. A. C. A. 185. We deem it unnecessary to restate the rule laid down by their Lordships of the Judicial Committee in Adel Muhammed's case and it will suffice to say that their Lordships state: "The Court will not interfere with the exercise of that discretion, unless, perhaps, it may be shown that the prosecutor has been influenced by some oblique motive".

At p. 169 of the report their Lordships further say: —

$\mathcal{L}^{\prime}$

"It is consistent with the discretion of counsel for the prosecutor, which is thus recognized, that it should be a general practice of prosecuting counsel. if they find no sufficient reason to the contrary, to tender such witnesses for cross-examination by the defence, and this practice has probably become even more general in recent years, and rightly so, but it remains a matter for the discretion of the prosecutor."

We think that in the circumstances of this case where corroboration of the complainant's evidence was all important that it is rather surprising that the

prosecution chose not to call or offer for cross-examination. Wanyoike whose deposition was on the file and who might have been expected to confirm Muli's evidence. However, it was a matter within the discretion of counsel conducting the prosecution and there are no grounds for any suggestion that the prosecutor was influenced by any oblique motive. No such suggestion has been made in the present case.

As to the proper direction where neither side elects to call a possible witness we think it may be helpful to advert to the judgment of the Court of Criminal Appeal in R. v. Bryant and Dickson, (1946) 31 C. A. R. 146 at pp. 152-3 where the Court indicated that a satisfactory direction would be in some such words as $these:$

"X is absent and it is not very satisfactory that he is not here; the prosecution could have called him, and have not done so, perhaps for very good reasons. The defence might have called him or not, as they liked."

We see no substantial difference between that and the direction complained of in the present case which in our view was unexceptionable.

Before leaving this aspect of the appeal we wish to refer to a passage in the judgment of this Court in Rex v. Katambo, (1938) 5 E. A. C. A. 141 at p. 142. It is there said: "There may be cases in which a Judge might think it a matter of justice to interfere and direct that such a witness should be called by the Crown". It seems doubtful, in view of what is said as to the discretion of the prosecutor in *Adel Muhammed's case*, whether the Court can direct the prosecutor to call a particular witness. However, that may be it would seem unnecessary to do so in Kenya since by section 150 of the Criminal Procedure Code the Judge is empowered himself to call any person as a witness and any person so called may be cross-examined by the prosecution or by the defence and this practice would seem to be more in accord with what Baron Alderson stated to be the only sensible rule, namely that ordinarily witnesses should be called by the party who wants their evidence.

The other points raised in the argument by Mr. Dinshaw were of no substance; we indicated our opinion on them during the course of the argument and do not propose to refer to them again here.