Msenga v Reginam (Criminal Appeal No. 123 of 1956) [1950] EACA 553 (1 January 1950)

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

Before SIR NEWNHAM WORLEY (President), SIR RONALD SINCLAIR (Vice-President) and BRIGGS, Justice of Appeal

## EDWARD s/o MSENGA. Appellant (Original Accused)

ν.

## REGINAM. Respondent

## Criminal Appeal No. 123 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Law, Ag. J.)

Procedure—First accused refused permission to cross-examine second accused— Defect fatal to conviction—Tanganyika Penal Code, sections 265 and 270— Indian Evidence Act, section 138.

The appellant had been convicted on two counts of stealing by a public servant. On the first count he was charged jointly with another person. He was convicted by the Magistrate's Court and his appeal to the Supreme Court was dismissed. At the hearing before the Magistrate after the second accused had given evidence the prosecutor cross-examined him but the first accused was refused permission to do so.

Held (23-7-56).—The failure to give the appellant an opportunity to cross-examine the second accused was the denial of a fundamental right which was fatal to the conviction on the first count.

Appeal against conviction on first count allowed. No cases.

Appellant absent, unrepresented.

Davies for respondent.

JUDGMENT (prepared by Sinclair, Vice-President).—The appellant was convicted in the District Court of Kilosa on two counts of stealing by a person in the public service contrary to sections 270 and 265 of the Penal Code and his appeal to the High Court having been dismissed, he appealed to this Court. We allowed the appeal so far as it related to the first count and set aside the conviction and sentence on that count, but dismissed the appeal against conviction and sentence on the second count. We now give our reasons for so doing.

As this is a second appeal we are concerned only with questions of law. The only point of law which has been raised relates to the conviction on the first count. On that count the appellant, who was employed as a clerk at the District Court, Kilosa, was jointly charged with one Omari with stealing the sum of Sh. 122/02 which had come into their possession by virtue of their employment. The appellant admitted receiving the money in question but his defence was that he had handed the money to the other accused Omari, with instructions to pay it to the person to whom it was due, one M. B. Patel. The exhibits register indicates that the money was paid to Mr. Patel, but he testified that he had never received it and that the signature in the register is not his. The appellant gave evidence on oath in which he said that he had handed the money to the second accused, Omari, who later told him that he had paid it over to the complainant, M. B. Patel. He was cross-examined by the

advocate for the second accused, after the prosecutor had cross-examined him. The second accused then gave evidence on oath. He denied that the appellant ever handed the money to him and that he told the appellant he had paid it over to the complainant. He also denied that he kept the exhibits register though he admitted that he had made several entries therein on the instructions of the appellant. He was cross-examined by the prosecutor but the appellant was refused permission to cross-examine him. The appellant complains that the refusal of the learned trial Magistrate to allow him to cross-examine the second accused was prejudicial to him and occasioned a failure of justice. The learned Judge who heard the appeal to the High Court was of the opinion that in the circumstances such refusal was an irregularity in the proceedings but was satisfied that no miscarriage of justice had resulted therefrom.

There is no doubt that the appellant was entitled to cross-examine the second accused and that the trial Magistrate was wrong in refusing to allow him to do so. For this purpose, the appellant was undoubtedly an "adverse" party" within the meaning of section 138 of the Indian Evidence Act. as applied to Tanganyika. In Archbold, 33rd ed., p. 523, it is stated:-

"Where two prisoners are jointly indicted and evidence is called on behalf of one prisoner which tends to criminate the other, the latter is entitled to cross-examine the witness. ... The reason for the rule is that such evidence, though given for the defence of one prisoner, becomes in fact evidence for the prosecution against the other. The rule is equally applicable where one of the prisoners is called in his own defence under the Criminal Evidence Act, 1898, ... and gives evidence incriminating or exculpating the fellow prisoner (R. v. Hadwen, (1902) 1 K. B. 882)."

We find it impossible to say that the refusal by the learned trial Magistrate to allow the appellant to cross-examine the second accused did not prejudice the appellant in his defence and did not result in a miscarriage of justice. The evidence given by the second accused undoubtedly tended to incriminate the appellant, particularly his evidence that the appellant did not hand over the money to him, for, if the appellant did not hand over the money, the only reasonable inference which could be drawn was that the appellant had stolen the money himself. But if doubt were thrown on the truth of the second accused's testimony, a reasonable doubt might well have been raised as to the guilt of the appellant. It was, therefore, clearly in the interests of justice that the appellant should have been given an opportunity of testing by cross-examination the truth of the evidence given against him by the second accused. Although it is true that the prosecutor cross-examined the second accused on most of the points on which the appellant says he wished to cross-examine, we are unable to agree with the conclusion of the learned appellate Judge that "had the appellant been allowed to cross-examine, there is no reason whatsoever to believe that the second accused would have answered differently". It cannot be assumed that the second accused would not have answered differently if he had been crossexamined by the appellant. The appellant might well have material which was unknown to the prosecutor and which would have enabled him to cross-examine more effectively than the prosecutor. We think that the failure to give the appellant an opportunity to cross-examine the second accused was the denial of a fundamental right which was fatal to the conviction on the first count