Figgis v Rex (Criminal Appeal No. 245 of 1940) [1940] EACA 39 (1 January 1940)

## **CRIMINAL APPEAL**

BEFORE SIR JOSEPH SHERIDAN, C. J., AND THACKER, J.

## MRS. C. FIGGIS, Appellant

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## REX. Responden!

## Criminal Appeal No. 245 of 1940

Criminal law—Defence (Censorship) Regulations, Regulation 3—Uttering information calculated to create alarm and despondency—Appeal on finding of fact.

Appellant appealed from a conviction and sentence in respect of a charge of uttering information calculated to cause alarm and despondency *contra* Regulation 3 of the Defence (Censorship) Regulations. The facts and evidence appear sufficiently from the judgment. The appeal was brought on the ground that the conviction was clearly against the weight of the evidence.

*Held* $(10-12-40)$ ..—(1) That before a person is convicted of uttering words amounting to a criminal offence the evidence that the words complained of were spoken should be precise and that corroboration though not essential is desirable.

(2) That the conviction was against the probabilities and the weight of the evidence. Duty of Appellate Court in considering factual findings by a judge or magistrate sitting alone.

Biesby v. Dickinson (4 Ch. D. p. 24), The Glannibanta (1 P. D. 287 see 4 Ch. D. p. 29), Coghlan v. Cumberland (1898) 1 Ch. D. p. 704; referred to.

Shapley for the Appellant.

Brown, Solicitor General, for the Crown.

JUDGMENT.—During the hearing of this appeal we gave a clear indication that had either of us been trying the case at first instance we should probably have acquitted the accused. The case essentially resolves itself into a question of whether the evidence of one woman the complainant should be preferred to that of the accused another woman. If there be any reasonable doubt in the matter the accused must of course have the benefit thereof. The evidence of a third woman who was present when the conversation took place was referred to by the learned magistrate as negative. This witness was called by the Crown and as a Crown witness she was disappointing for though present at the time the words the subject matter of the charge are said to have been spoken, she is unable to corroborate the evidence of the complainant that the words. were spoken and at the request of the complainant repeated. The most she says is that something was said by the accused that gave the complainant a shock. It should scarcely be necessary to say that before a person is convicted of uttering words amounting to a criminal offence the evidence that the words complained of were spoken should be precise and though not necessary according to law, the desirability of adequate and convincing corroboration is obvious when the person accused denies having uttered the words. One has but to reflect on the statutory necessity for there being two witnesses before a conviction can be had for perjury to appreciate this. In saying this we by no means wish to imply that a conviction may not be had without corroboration. So much depends on the facts of the particular case. A case of this kind mainly depending as it does on the word of one person against that of another has to be distinguished from a case based on a written communication where in the event of a denial by the writer she may be confronted with the actual written words

rather than recollection by another person of something said. In the present case we shall give our reasons why, even though the learned magistrate had the advantage of hearing and seeing the witnesses this appeal should succeed. It is convenient here to set out by reference to authorities the principles which should guide a Court of Appeal in hearing an appeal on a question of fact from a judge or magistrate sitting alone. In Bigsby v. Dickinson 4 Ch. D. p. 24 it was held:

"Although the Court of Appeal, when called on to review the conclusion of a judge of first instance, after hearing witnesses viva voce, will give great weight to the consideration that the demeanour and manner of the witnesses are material elements in judging of the credibility of the witnesses, yet it will in a proper case act upon its own view of conflicting evidence."

In the case of the Glannibanta reported on page 29 of the same volume it was decided:

"Now we feel as strongly as did the Lords of the Privy Council in the cases just referred to the great weight that is due to the decision of a judge of the first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are, as they were in the cases referred to, material elements in the consideration of the truthfulness of their statements. But the parties to the cause are nevertheless entitled as well on questions of fact as on questions of law to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."

And in Coghlan v. Cumberland (1898) 1 Ch. 704 it was held:

"The case was not tried with a jury, and the appeal from the Judge is not governed by the rules applicable to new trials after a trial and verdict by a jury. Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to re-hear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from over-ruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the Court in differing from the judge. even on a question of fact turning on the credibility of witnesses whom the Court has not seen."

The charge against the accused in this case is briefly that she uttered the words "Somaliland has fallen" at a time when British Somaliland had not fallen and thus committed an offence contra Regulation 3 of the Defence Regulations reading:

"No person shall by word of mouth or otherwise spread any report or utter any information calculated to create alarm and despondency or which is otherwise likely to prejudice the public tranquility or resolution, unless such report or information is merely a repetition of information which has already been published with the aforesaid sanction."

The complainant gave evidence in chief that she heard the accused utter these words: to this she adhered at the beginning of her cross-examination, but later said "I say I can't remember any exact word stated. The words I have repeated did stick in my mind. I only remember the purport". In her re-examination she said that she remembered the particular word "fallen" being used in connexion with British Somaliland. Now this evidence in a case of this nature surely fails short of the precise proof one would expect, especially when it is remembered that the words are said to have been repeated. The accused on the other hand denied having uttered the words complained of and stated precisely the words she admitted having uttered on the occasion in question. She admitted having said "I am just going to dinner with Betty Glenday, the news from Somaliland is not too good but even if it should fall it wouldn't matter, because it's a wretched place". This is a precise statement from which the accused never departed one whit. To us it reads much more definite than the evidence of the complainant to which we have referred. In his judgment the magistrate said that as distinct from the accused the complainant had every reason to pay close attention to what was said. The relevant passage reads:

"Mrs. Selby had every reason to pay close attention to what was said. She was a very interested person in view of the fact that her husband was serving with H. M. Forces there. She says on oath moreover that she asked for the words to be repeated—a most natural thing for someone who is inside a lavatory compartment and hears something sensational being said outside. When she comes out she immediately wants to know if what she thought she heard was correct. She is not at all, so far as one can judge from her demeanour in the box the sort of person to be hysterical and imaginative—in fact I can seldom remember having seen a more impressive witness. I believe her evidence-not only that she thinks she is telling the truth but that she is telling the truth. Although Mrs. Figgis has denied on oath that she ever did say these words I don't consider that she had anything like the same reasons for remembering what she did say. The fact that she was about to dine with the Governor of British Somaliland and his wife shortly afterwards seems to me not to carry the case any distance either one way or another except that it is perhaps rather a coincidence. It is not suggested that Mrs. Figgis is deliberately committing perjury when she denies on oath that she said the words alleged—the same explanation commends itself as her counsel alleged was the case of Mrs. Selby—merely that she thinks now that she is telling the truth but that she doesn't remember accurately what she said".

We are not convinced that the recollection of the complainant should be accepted in preference to that of the accused or that there is anything in the evidence which reasonably suggests that this should be done. The magistrate makes no reference to the fact admitted by herself that from the time of the fall of French Somaliland some time previously to the incident in question until the evacuation of her husband from British Somaliland she was in a state of increasing anxiety. Her own evidence on the point is:

"When I heard of the collapse of French Somaliland I was in a state of increasing anxiety for my husband. That continued until I heard of his safe evacuation later."

The possibility of a woman in that anxious frame of mind receiving a shock from what the accused admits having said and thinking that she had heard that Somaliland had fallen has to be envisaged. The magistrate it will be seen has decided this case against the accused mainly because he regarded the recoilection of the complainant as more reliable than that of the accused. But he does not animadvert in any way on the candour demeanour or manner of the accused. He said that the complainant did not strike him as hysterical and imaginative but what about the accused? Why should she the alleged author of the words complained of, some nineteen days after their utterance fail to remember that she had uttered them. The learned Solicitor General submitted that when the accused uttered the words she simply indulged in loose talk and said something that was untrue not caring whether it was true or false. As we see it, and we shall not beat about the bush in the matter, the accused if she uttered the words complained of three-quarters of an hour after she heard the British official wireless news which did not mention directly or indirectly the fall of Somaliland must be taken to have distorted the truth knowing that she was doing so. No euphemism such as that she was talking loosely without adverting to what she was saying will explain away the inference that if she said what she is alleged to have said she was saying what was untrue and something which she knew to be untrue-in short, was telling a lie. And on the same assumption when she gave evidence and denied that she had uttered the words complained of and admitted saying the words quoted she should be taken as telling another lie. It also occurs to us as strange that the complainant does not speak of anything else said by the accused such as "the news from Somaliland is not too good ... it wouldn't matter because it's a wretched place". What are we to infer from this? Is it that the accused never said these words or what? The accused said she used these words and her evidence as to this is uncontradicted so there is no reason to disbelieve her. If the complainant's recollection is as good as we are given to understand in contradistinction to that of the accused one would expect her to recollect more than the three words in controversy. Had she remembered something else said by the accused, it would be a useful check on the accuracy of her recollection. But apparently she doesn't. She confines her evidence to saying that she heard the accused say "Somaliland has fallen" without giving the context and even then she qualifies her evidence as we have shown. She said that she asked the accused to repeat what she the complainant says, she overheard, and here again with regard to what she said accused repeated, her evidence was "she repeated it—the inference was the same-it is very difficult to remember the exact words and if they were the same". The accused we may say denies having been asked to repeat anything. There being nothing in the evidence or judgment to reflect on the candour, demeanour or manner of the accused, there being no reason in our opinion to prefer the complainant's recollection of what was said to that of the accused, the fact that the conviction of the accused would in our opinion presuppose not only that on the 8th August she had knowingly distorted the truth but with that knowledge when she gave evidence some nineteen days later had denied on oath having done so are reasons why the conviction should not be allowed to stand. The appeal is allowed the accused acquitted and the fine if paid is directed to be refunded.