Hussein and Others v Reginam (Criminal Appeal No. 143 of 1956) [1950] EACA 568 (1 January 1950)

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and EDMONDS, J. (Kenya)

## (1) ABDI ELMI, H. Y. RER HUSSEIN, RER ISMAIL HUSSEIN and (2) GUHAD JAMA, H. Y. RER HUSSEIN, RER ISMAIL HUSSEIN. Appellants (Original Accused)

## REGINAM, Respondent

### Criminal Appeal No. 143 of 1956

(Appeal from the decision of H. M. High Court of Somaliland, Cole, Ag. J.)

Plea of guilty—Must be unequivocal—Court not entitled to presume what witnesses would say—Indian Penal Code, section 307—Indian Evidence Act. sections 105 and 114-Somaliland Arms and Ammunition Ordinance, section $12(2)$ .

The appellants were convicted of being found in possession of arms and ammunition without a special permit and of attempted murder. In answer to the first charge the first appellant said, "I had a rifle and ammunition" and the second appellant said, "I had a rifle". These were entered as pleas of guilty. On the second count the prosecution called three witnesses and offered for cross-examination a further five. In the judgment it was stated, "There were made available for cross-examination a corporal and four other constables who presumably would have corroborated the three witnesses called, but who were not cross-examined". There were misdirections as to the evidence called for the defence.

Held $(24-8-56)$ .—(1) The pleas on the first count were not unequivocal admissions of guilt and were wrongly taken as pleas of guilty and the trial was a nullity.

(2) The Court was not entitled to assume what the five witnesses not called would have said.

Appeals allowed and convictions quashed but proceedings remitted to High Court for retrial on first count.

Cases referred to: Mohamed Hassan Ismail v. R., 22 E. A. C. A. 461; R. v. Musa<br>Ismail and three others, E. A. C. A. Cr. App. No. 257 of 1955; R. v. Golathan, (1915)<br>84 L. J. K. B. 758; R. v. Kangara s/o Karanja, 1 E. A. C. A. 74.

### *Appellants absent*, unrepresented.

Brookes for respondent.

JUDGMENT (prepared by EDMONDS, J.).—The two appellants were convicted by the High Court of the Somaliland Protectorate of being found in possession of arms and ammunition without a permit, in contravention of section 12 (2) of the Arms and Ammunition Ordinance, and of attempted murder in contravention of section 307 of the Indian Penal Code. Each appellant was sentenced to four and eight years' on the respective counts, the sentences being ordered to run concurrently. We quashed the convictions and sentences on both counts and now give our reasons for so doing.

As regards the first count, the first appellant is recorded as saying, in answer to the charge, "I had a rifle and ammunition", and the second appellant, "I had a rifle". The learned Judge entered these pleas as pleas of guilty. We are of the opinion that these pleas are not unequivocal admissions of guilt. An essential

ingredient of the offence is the possession of a rifle "without a special permit" and there is no admission by either appellant that he had no such permit. Mr. Brookes, who appeared in support of the convictions, sought to bring in aid the provisions of section 105 of the Indian Evidence Act, as amended in its application to Somaliland, and referred us to this Court's decision in Mohamed Hassan Ismail v. Reg, 22 E. A. C. A. 461, in which it was decided, applying the provisions of section 105, that the onus of proving the existence of a permit for the possession of arms was upon an accused. Mr. Brookes contended that, in pleading to the charge in the instant case, which unlike the charge in Somaliland Criminal Sessions Case 8/55, Reg. v. Musa Ismail and three others (see Criminal Appeal $257/1955$ , alleges the absence of a special permit, the onus was upon the appellants to set up the defence of being in possession of a permit, and that, by failing to do so, their pleas must be taken as unequivocal admissions of guilt in respect of the charge. The instant case can be distinguished from the Mohamed Hassan Ismail case, as in the latter the accused was convicted after trial, during the course of which he adduced no evidence in discharge of the onus upon him of proving that he had the necessary permit. In the instant case the appellants have been convicted on their pleas. An accused is not to be taken to admit an offence unless he pleads guilty to it in unmistakable terms with appreciation of the essential elements of the offence—R. v. Golathan, (1915) 84 L. J. K. B. 758. In R. v. Yonasani Egalu and others, 9 E. A. C. A. 65, this Court declared that it was most desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every constituent, and that what he says should be recorded in a form which would satisfy an Appeal Court that he fully understood the charge and pleaded guilty to every element of it unequivocally. In this case, although we have no doubt that the charge was fully explained to the appellants, we think that the learned Judge should have asked them to plead in terms to both ingredients of the offence. Further, we do not think that the provisions of section 105 of the Indian Evidence Act should be allowed, in respect of those offences to which it may be said to apply, to relieve a Court of requiring an accused in his plea to admit or deny every constituent of an offence. To amount to an unequivocal admission of guilt an accused's plea must not be left open to any doubt. We are, therefore, of the opinion that the appellants' pleas to the first count were wrongly taken as pleas of guilty.

As regards the second count of attempted murder, there are misdirections which, in our view, are fatal to the conviction. The first is in regard to the assumption made by the learned Judge as to the nature of the evidence of five prosecution witnesses who were not called to give evidence. The prosecution had called three witnesses who testified to the appellants having fired at the police party, and had then offered five further witnesses for cross-examination by the defence. The appellants declined to cross-examine these witnesses. The following passage appears in the judgment: -

"The evidence against them on the second count is that of the sergeant and two constables. There were made available also for cross-examination, a corporal and four other constables who presumably would have corroborated the three witnesses called, but who were not cross-examined."

In our view the learned Judge was not justified in making any presumption as to what these witnesses would have said. A trial Judge is not entitled to import into his judgment facts of which no evidence was given at the trial—R. v. Kangara s/o Karanja, 1 E. A. C. A. 74. Nor can section 114 of the Indian Evidence Act be brought in aid of the course adopted by the learned Judge. This section can be applied to an accused only where he fails to call witnesses who are available to him and are not prosecution witnesses. "If the prosecution does not discharge

its duty of producing all its available evidence, it is no answer to say that the accused, who has no such duty cast upon him, might have produced that evidence. No inference unfavourable to the accused can be drawn in such a case against him". (*Woodroffe—Law of Evidence*. 9th ed., 814.)

The next serious misdirection of the learned Judge is to be found in his failure to direct himself adequately to the evidence for the defence. There is, moreover, no note of any summing-up by the learned Judge to the assessors, and, although it cannot be said to be always incumbent upon a Judge to sum up the case to the assessors, this is an instance where we think there should have been a summing-up.

The witnesses for the defence were Aw Deriah Abdi and Nuh Abdi. The former was an Elder and was in the police truck at the time of the alleged attack by the accused. He said he did not see either of them fire at the police. This may not in logic have directly contradicted the police evidence. He may have happened to be looking the other way: but in the absence of explanation it threw great doubt on the police evidence, if true. Nuh Abdi stated that after the arrest of the accused the police had fired rounds from the accused's rifles. This countered the police evidence that those rifles smelt as if they had been recently fired, and was relevant to the defence of "planting". The learned Judge<br>made no reference at all to the first witness in his judgment and the only reference—a most indirect and, we think, inadequate one—to the second witness is in these words, "I do not believe that the police, as has been alleged, planted the empty cases there". We think that on both these issues the learned Judge must be presumed to have misdirected himself, though we are by no means prepared to say that the defence evidence ought to have been believed. We are, however, unable to say that, had the learned Judge not made the assumption which he did make as to the nature of the evidence of the prosecution witnesses who were not called, and had he directed himself on the evidence of the defence witnesses, he would still have come to the conclusion which he did and convicted the appellants. In our view, these misdirections result in the trial having been unsatisfactory and necessitate the setting aside of the convictions.

Reverting to the first count, as we have held that the pleas were not unequivocal admissions of guilt, the result is that the trial of the appellants on this count was a nullity, and we remitted the matter to the High Court with a direction that the appellants be arraigned again on this count and tried according to law.