Joshi v Rex (Criminal Appeal No. 73 of 1951) [1951] EACA 228 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

BALBIR SAIN JOSHI, Appellant (Original Accused No. 1)

REX. Respondent (Original Prosecutor)

## Criminal Appeal No. 73 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya at Nairobi—Bourke, J.)

Exculpatory statement to a Police Officer—Accused not cautioned—Application of "Judges' Rules"—Police Ordinance section 36, Kenya.

appellant together with three other Asians stole boxes containing The Sh. 500,000 in currency notes from the guard's van of the train from Nairobi to Kisumu.

The appellant and a co-accused were stopped by the police as they were driving back to Nairobi in a car at about one o'clock in the morning. They were taken to Tigoni Police Station and later to the Central Police Station at Nairobi where appellant spent the rest of the night in the cells. At about 9 a.m. next morning he was taken to the C. I. D. where he made an oral statement to the officer conducting the investigation. The appellant's statement was repeated and recorded in writing. The appellant was not then charged with any offence and no caution was administered before the statement was recorded. The statement gave a completely false explanation of the appellant's presence in the car and was presumably tendered in evidence by the prosecution to impeach his credibility. The appellant objected at his trial to its admissibility on the ground inter alia that it was inadmissible by reason of non-compliance with the "Judges' Rules".

Held (21-8-51).—(1) Where questions relating to the admissibility of statements made to the The same specific by accused persons were not governed by statutory provisions in force in the Colony, the Supreme Court must be guided by the Judges' Rules.

(2) A caution should have been administered before any statement was taken from<br>the accused and the statement should have been excluded. But its admission did not affect the trial.

Appeal dismissed.

Cases referred to: Reg. v. Male and Cooper (1893) 17 C. C. C. 689; Rex v. Knight and Thayre (1905) 20 C. C. C. 711; Rex v. Mills and Lemon (1947) 2 K. B. 297.

Salter with Bhandari, R. B., for appellant.

Todd, Crown Counsel, Kenya, for Crown.

JUDGMENT.—This is an appeal from a conviction and sentence of six years' imprisonment with hard labour for robbery with violence, contrary to section 291 of the Penal Code.

The facts which are not in dispute are that at about 8 p.m. on 5th November, 1950, between Mbaruk and Mereroni the appellant and three other Asians stole two boxes containing currency notes valued at Sh. 500,000 from the guard's van of the night train from Nairobi to Kisumu, that the robbery was carried out by three of them masked and armed with pistols, that they fired a shot to frighten the guard, tied him up and assaulted him and that the two boxes containing currency notes were carried from the train to a motor-car waiting on the road nearby in which was the fourth person concerned.

The appellant's case was that he accompanied the three other Asians in this car from Nairobi, that he was the person waiting in the car, that his only participation in the crime was to assist in carrying the boxes from the railway line to the car and, subsequently, to assist in burying them but that he was acting throughout under compulsion within the meaning of section 17 of the Penal Code of Kenya. The three assessors accepted this defence but it was rejected by the trial Judge in a careful and closely reasoned judgment, and the grounds of appeal are—

- (1) that the finding of the learned Judge that the appellant was not acting under compulsion was against the weight of evidence and unreasonable; and - (2) that the learned Judge erred in law in admitting in evidence the appellant's first exculpatory statement to the Police, Exhibit 31, and thereafter in attaching undue weight to it.

We will take first this second ground of appeal, which involves an important question of practice if not of law.

At about one o'clock in the morning following the robbery the appellant and one Bachan Singh, a co-accused, were stopped by the Police as they were driving back to Nairobi in motor-car No. KBB 672 which the Police had reason to believe was the one used in the commission of the offence. The two occupants of the car were taken to Tigoni Police Station and later brought to the Central Police Station at Nairobi; the appellant spent the rest of the night in the cells there and later, at about 9 a.m., was taken to the Criminal Investigation Department where he made an oral statement to Mr. Riggs, the police officer conducting the investigation. He was asked how he came to be in the car KBB 672, and, as Mr. Riggs was not satisfied with his explanation, the appellant's statement was repeated and recorded in writing by Inspector Kihoto. The appellant was not then charged with any offence and no caution was administered to him before this statement was recorded. This statement, as the appellant now admits, gave a completely false explanation of his presence in the car and was, presumably, tendered in evidence by the prosecution to impeach his credibility. The objections raised at the trial to its admissibility were two; firstly, that it was inadmissible by virtue of section 25 of the Indian Evidence Act, which is in force in the Colony; and, secondly, that it was inadmissible by reason of non-compliance with what are known in England as "the Judges' Rules".

The learned trial Judge overruled the first submission, and, in our view, was quite right in doing so, and in this connexion it is only necessary to refer to the judgment of the Judicial Committee of the Privy Council in Pakala Narayana Swami v. King-Emperor (1939), 1 All E. R. 396. He also overruled the second ground of objection and admitted the statement in evidence but without recording his reasons for so doing. We have therefore to consider whether "the Judges" Rules" apply in the Colony, and, if so, whether the learned judge exercised his discretion in accordance with those Rules.

The nature and purpose of these rules is thus summarized in Halsbury's Laws of England, Hailsham edition vol. XXV paragraph 532 (pages 322-323): -

"532. Although it is the duty of the police to obtain all possible information regarding crimes or offences which have been committed, they have in general no power to compel any person to disclose facts within his knowledge or to answer questions put to him.

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The well-established principle that a prisoner's statement to be admissible in evidence against him must be voluntary and not obtained from him by an inducement, threat, or promise held out by a person in authority, makes it

incumbent upon constables engaged in the investigation of crime to exercise particular care in dealing with persons who are suspected of and who may be ultimately charged with the crime in question. In 1912 the judges, at the request of the Home Secretary, drew up some rules as guides for police officers. These rules have not the force of law, but are administrative directions, the observance of which is important as statements obtained from prisoners contrary to the spirit of the rules may be rejected as evidence by the judge presiding at the trial."

The rules themselves are set out in a footnote at page 323 of vol. XXV of the same work. The rules are in effect a summary or codification of the long-standing practice of the criminal Courts in England, see for example, the judgment of Cave, J., in Reg. v. Male and Cooper (1893) 17 C. C. C. 689 and that of Channell, J., in Rex v. Knight and Thayre (1905), 20 C. C. C. 711 at page 713.

There are in this Colony certain statutory provisions which must be taken into account in considering the application of these Rules. The first and most important are, of course, sections 25 and 26 of the Indian Evidence Act the former of which excludes altogether any *confession* made to a police officer, while the latter excludes any *confession* made by a person who is in police custody unless made in the presence of a Magistrate. It is obvious that these provisions go considerably further than the Judges' Rules in providing protection to a suspected or accused person against being led into making incriminating statements by questions put to him by a police officer. It is however important to keep in mind that the rules are also intended to provide a prisoner with a safeguard against being led, in the words of Cave, J., in Reg. v. Male and Cooper (supra) "to give answers on the spur of the moment, thinking perhaps he may get himself out of a difficulty by telling lies". It is quite legitimate for the prosecution to tender in evidence a lying statement for the purpose (as was done in the present case) of impeaching the credibility of an accused person and throwing doubt on the bona fides of a subsequent alternative defence; but it is for this very reason important to ensure that before any such statement is taken from a person who has been charged or who is about to be charged with an offence, he should be cautioned that the statement he is about to make may be used in evidence.

Another statutory provision to which our attention has been drawn is section 36 of the Police Ordinance (No. 79 of 1948), which is as follows: -

"36. (1) Any police officer making an investigation into any offence may, in writing, require the attendance before himself, of any person, within the limits of any police station to which he is attached, or of any adjoining police station, who he has reason to believe, has any knowledge which will assist such investigation.

(2) Any person, who has been notified to attend, as provided in subsection (1) of this section, who fails to attend as required, or who, having attended, refuses to give his correct name and address and to answer all questions that may be lawfully put to him, shall be guilty of an offence:

Provided that no person may be required to answer any question, the answer to which may tend to expose him to any criminal charge, penalty or forfeiture.

(3) Any police officer may record any statement made to him by any such person, whether such person is suspected of having committed an offence against any law in force in the Colony or not, but, before recording any statement from a person whom such police officer has decided to charge or who has been charged with committing any such offence, such police officer shall warn such person that any statement which may be recorded may be used in evidence:

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Provided that any such statement shall, whenever possible, be recorded in $\{M_{\ell}\}_{\ell\in\mathbb{Z}}$ writing and signed by the person making it after it has been read to him in a

language which he understands and he has been invited to make any correction $\therefore$ he may wish." $\mathcal{A}^{\mathcal{A}}$

The points to be noted in this section are that although it confers upon police officers statutory power to interrogate even suspected persons, two safeguards are provided, namely—

(a) that no person is required to answer any question if the answer would tend to incriminate him; and

(b) that if the police officer has charged or decided to charge a person, no

statement from him shall be recorded unless he has first been cautioned that it may be used in evidence.

In other words the provisions of the section are in no sense incompatible with the principles underlying the Judges' Rules.

Lastly we refer to section 257 of the Criminal Procedure Code of Kenya which provides-

"257. The practice of the Supreme Court in its criminal jurisdiction shall be assimilated as nearly as circumstances will admit to the practice of His Majesty's High Court of Justice in its criminal jurisdiction and of Courts of Over and Termner and General Gaol Delivery in England."

In our opinion therefore in questions relating to the admissibility of statements made to the Police by accused persons which are not governed by statutory provisions in force in the Colony, the Supreme Court of the Colony must be guided, as is the High Court of Justice in England, by the "Judges' Rules". The only other observation we wish to make on the general question is that, whereas the Judges' Rules have not the force of law but are only administrative directions and that failure to observe them will not render a statement inadmissible in law, a failure to observe the statutory provisions of section 36 of the Police Ordinance may have the consequence of making a statement inadmissible as a matter of law and not merely of practice.

We have now to consider the position in the present case. Rule 3 of the Judges' Rules is that persons in custody should not be questioned without the usual caution being administered. The appellant's position at the time he made the statement (exhibit 31) was anomalous: he had not been formally arrested or charged with any offence, nor had the officer conducting the investigation made up his mind to charge him. Mr. Riggs's evidence on this point was:—

"I had nothing against accused at the time I questioned him on the morning of the 6th October about car KBB 672. After questioning accused I did not believe what he told me in connexion with his movements the previous afternoon and night. I had then no means of checking and I therefore instructed Inspector Frederick Kihoto to take down accused's statement in writing—not as a suspected person—and I gave no instructions for caution at that stage. I had not at that stage even thought accused was a suspected person in connexion with the offence now charged before Court that I was investigating. I thought it as well to have what accused said in writing. I had not at all made up my mind to charge accused with any offence."

Later on, as the result of further inquiries, Mr. Riggs decided to charge the appellant, cautioned him, and the appellant then made another statement in which he admitted his participation in the crime, but alleged that everything he did had been done under duress. The trial judge ruled that statement was also admissible and the question of its admissibility is not now challenged.

$\mathcal{L}_{\mathcal{A}}$

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To revert to the first statement, exhibit 31, Mr. Riggs very fairly and, we think, correctly, admitted that the appellant when he made it "could be termed to be under arrest as he had been brought to the Criminal Investigation Department on my instructions as an occupant of the car". This we think is the only reasonable inference to be drawn from the facts, and it follows that in accordance with rule 3, a caution should have been administered before any statement was taken from him.

In England it has been held that a failure to comply with the Judges' Rules does not necessarily make a statement inadmissible: Rex v. Mills and Lemon (1947) 2 K. B. 297. Nevertheless, if, as we think is the case, a failure to comply with the statutory provisions of section 36 of the Police Ordinance will make a statement inadmissible in law, then the prosecution ought not to be in any better position in the present instance because of the fact that the appellant was being irregularly held in custody at the time the statement was made and there was no strict compliance with section 36. We think that in these circumstances the statement should have been excluded.

We have now to consider whether the admission of the statement (exhibit 31) affected the result of the trial.

There is no doubt that it did have some effect on the Judge's mind for he cites it in his judgment as one of the factors in the appellant's conduct which go to discredit his story that he was acting under compulsion all through and was anxious to tell the truth as soon as he found himself, to his great relief, in the hands of the Police. But this false statement was only one of the factors which influenced the trial Judge and we see no reason to doubt that he would have arrived at the same conclusion even if exhibit 31 had been excluded. The learned Judge points out that the appellant had three earlier opportunities of telling his true story, namely, when first stopped by the Police when in the car, again at Tigoni Police Station and again at the Central Police Station, Nairobi, and that he availed himself of none of them.

Furthermore, the judge examines carefully and sympathetically the appellant's story of being compelled to take part in the robbery and although he finds that the appellant was tempted and persuaded by his older and more mature friends to join in the crime, he was satisfied that he went with them freely knowing of the joint adventure he was embarked upon to rob the train. He held that the whole conduct of the appellant belied any element of compulsion and refused to accept the story that he was forced under threat of instant death or infliction of grievous bodily harm to accompany his accomplices or compelled to give information to them or to assist them in putting the stolen boxes into the car. The learned judge arrived at this conclusion without taking into account the evidence of the three self-confessed accomplices. So far from being persuaded that this was an unjustified or perverse finding on the evidence, we are of opinion that it was the only reasonable conclusion which anyone fairly considering the evidence could draw. The appeal against conviction is therefore dismissed.

We have been urged by the appellant's advocate to reduce the sentence of six years and by counsel for the Crown to increase it. We do not propose to do either. In determining the sentence he imposed the learned Judge took carefully into account not only the gravity of the offence but also the circumstances that the appellant was persuaded into this adventure by older men and the assistance that he gave the Police in recovering the stolen property. The sentence is neither manifestly excessive nor insufficient. The appeal is dismissed.

$\overrightarrow{q}$