Daniel v Rex (Cr.A. 54/1934.) [1937] EACA 154 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. President, LUCIE-SMITH, Ag. C. J. (Kenya), and WEBB, J. (both of Kenya):

## SAMSON DANIEL (Appellant) (Original Accused)

## REX (Respondent) (Original Prosecutor). Cr. A. 54/1934.

Circumstantial evidence—alternative which may, with reasonable probability, account for death.

$Held$ (29-6-34).—On a trial for murder, circumstantial evidence must lead to the inevitable conclusion that the death was the act or contrivance of the accused. If there is an alternative which can with any reasonable probability account for the death, this excludes the certainty which is required to justify a verdict of guilty. In this case the guilt of the accused was not proved with that certainty which is necessary to justify a verdict of guilty. Reg. v. Palmer (per Lord Campbell) and case of Wallace (per Lord Hewart, L. C. J.) Vol. 23 Criminal Appeal Reports and Law Journal newspaper of 17th March, 1934, page 167 referred to.

Appeal from High Court of Tanganyika Territory.

Burke for appellant.

Bruce (Solicitor-General, Kenya) for Crown.

Burke. I wish to put forward a point of law. The Court had no jurisdiction to hear the case. Proper notice had not been given. Section 238 Kenya Criminal Procedure Code-268 Tanganyika Code. Unless accused expressly assents to the trial he must have three days' notice.

(Court.—This point was definitely decided against the accused in Criminal Appeal No. 38 of 1934.)

Burke.—Facts do not point so irresistibly to appellant as to Summing up in favour of accused; make a conviction safe. assesors in accused's favour. One witness saw Singh hand over handkerchief to deceased. On 31st December accused invited people to gambling party. One witness testifies to accused being left handed. Evidence here unsatisfactory. Medical evidence not clear. Deceased killed by a left-handed man. One witness peeped into accused's house but did not say anything to anyone inside or to his two companions. He did not tell anyone that he saw them gambling. Nothing in discoveries to connect accused. On the prosecution evidence, however suspicious circumstances may have been, nothing in that evidence to show accused and none other responsible for death of deceased. No motive, in fact accused had reason to prefer accused to live alongside. Nothing to connect the injuries on deceased with injuries on accused. 50 T. L. R. 269, Duke of Atholl v. Read.

$Bruce.$ —Evidence supports the conviction. Various gambling allurements held out by accused to deceased. Singh gave money Houses next door to each other. Singh saw to deceased. deceased in accused's house and is corroborated; marks on body of accused. Whole circumstances of the case.

JUDGMENT.—The appellant was convicted in the name of Samson Daniel of the murder of his next door neighbour, one Falcao, some time in the early morning of the 4th February of this year. The evidence produced by the Crown is nearly all circumstantial. Though juries appear to have a very great shyness for this form of evidence it may not very frequently be of very much greater value than other forms but in dealing with it one must most carefully test each link in the chain, and if, in the end, one is not led to the irresistible conclusion of the accused's guilt then must one reject the whole chain and discharge the accused person.

In Rex. v. Palmer, Lord Campbell in his charge to the jury said "But in a case of this kind (it was a poisoning case) you cannot expect that witnesses should be called to state that they saw the deadly poison administered by the prisoner or mixed up by the prisoner openly before them. Circumstantial evidence as to that is all that can be reasonably expected: and if there are a series of circumstances leading to the conclusion of guilt then a verdict of guilty may satisfactorily be pronounced." Again, as Mr. Justice Branson said in his summing up in the recent case of $R$ , $v$ . Hinks, circumstantial evidence may be not only as conclusive as, but even more conclusive than, the evidence of an eye-But the circumstantial evidence must lead to the witness. inevitable conclusion that the death was the act or contrivance of the accused. If there is an alternative which can with any reasonable probability account for the death, this excludes the certainty which is required to justify a verdict of guilty-Vide Law Journal, 17-3-34, p. 167.

In this case we have a chain of circumstantial evidence which links the accused with the deceased up to somewhere between 1.30 to 2.a.m. on the morning of the 4th. That is, of course, accepting the evidence of Marchand Singh as trustworthy. From that time on there is nothing to connect them together.

The Sub-Inspector Paramand Joti appears to have made a most careful search of the premises and grounds but everything he found would appear to have been on the deceased's side of the fence.

The accused went into the witness box, thereby submitting himself to cross-examination, and he also called witnesses in support of his defence. It is of interest to note that the accused. entered on his defence at the earliest possible moment, that is, at the preliminary inquiry. The whole of the evidence has been most carefully examined by learned counsel and it does not appear to us to be necessary to discuss it again. Using the words. of Hewart, L. C. J., in Wallace 23, C. A. R. 32 "Suffice it to sav that we are not concerned here with suspicion however grave or with theories, however ingenious."

The conclusion at which we have arrived is that the case against the appellant, which we have carefully and anxiously considered and discussed, was not proved with that certainty which is necessary in order to justify a verdict of guilty. The result is that this appeal will be allowed and the conviction. quashed.

$\tau_{\rm c} \sim 10^{-3}$

S.