Musa v Reginam (Criminal Appeal No. 490 of 1955) [1950] EACA 469 (1 January 1950)

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

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

MOHAMED FARAH MUSA alias SHAUR, Appellant (Original Accused) υ

## REGINAM, Respondent

## Criminal Appeal No. 490 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, Chief Justice and Rudd, J.)

Evidence—Accomplices on one count—Status may differ on another count— Findings of fact—May be set aside—Interpretation.

The appellant had been convicted by the Magistrate's Court on three counts. On appeal to the Supreme Court the conviction on the second count was quashed but those on the first and third counts were affirmed.

*Held* $(12-3-56)$ .—(1) Where witnesses for the prosecution are held to be accomplices in respect of one of the counts their evidence is not necessarily tainted as regards the remaining counts. A witness's status may well differ as regards different counts.

(2) Where an accused is charged with withholding information and witnesses for the prosecution commit the same offence in respect of the same or similar information, but at different times, the witnesses are not necessarily accomplices.

(3) The Court will not set aside on second appeals findings of fact unless they are perverse or unreasonable or there has been an unjudicial approach to the evidence.

(4) Interpretation may be "difficult" without being "bad". Difficulty of itself is not sufficient ground for setting aside a conviction.

Appeal dismissed.

Cases referred to: Davies v. Director of Public Prosecutions, (1954) A. C. 378; Bracegirdle v. Oxley, (1947) 1 A. E. R. 126; Meghji Naya, 19 E. A. C. A. 247.

Oulton for appellant.

Webber for Crown.

JUDGMENT (prepared by BRIGGS, J. A.).—The appellant was convicted by the First Class Magistrate at Isiolo on three counts, the first and second, harbouring contrary to Emergency Regulation 8E (2), and the third, withholding information contrary to Emergency Regulation 27. He was sentenced to a year's imprisonment and fine of Sh. 1,000 or four months in default on each count, the substantive sentences of imprisonment to run concurrently. He appealed to the Supreme Court, which quashed the conviction and sentence on the second count, but affirmed those on the first and third. He now appeals to us against the remaining convictions.

The appeal was argued skilfully and at length by Mr. Oulton, but we have decided, not without some hesitation, that it fails and must be dismissed. It is therefore only necessary in this judgment to discuss certain matters which were not dealt with by the Supreme Court and certain others on which we take a somewhat different view from theirs. The facts are fully and carefully set out in the judgment of the Supreme Court and we do not propose to restate them.

Mr. Oulton's first point was that Laybon and Galgalo, two witnesses for the prosecution whom the Magistrate found to be accomplices, were accomplices in truth, and that the Supreme Court erred in holding that they were not accomplices. We may say at once that in our view, if these men were accomplices the convictions could not stand, and the Supreme Court was of the same opinion. The witnesses' status might well differ as regards the two counts. There is no evidence that they had anything to do with the offence of harbouring, which centred round the gift of a goat by the appellant to the Mau Mau, and it is not suggested that mere knowledge of the offence would render them accomplices; but it is submitted that if they were accomplices as regards the third count their evidence was tainted as regards the whole case, because the two counts were so closely connected. We cannot accept this. The special rules applicable to accomplices would not apply, and the categories of accomplices are not to be extended. Davies v. D. P. P., (1954) A. C. 378. And, since the Magistrate thought they were accomplices, he cannot have misdirected himself in a way unfavourable to the appellant.

As regards the third count the matter is a little more complex. It seems that the appellant told all the people in his *manyatta* not to disclose the presence or activities of the Mau Mau to any Security Forces or other authorities who might visit the *manyatta*. His authority among them was such that they would be likely to obey him, and in fact they did. When the district officer came to question them and obtain information about *Mau Mau* in the locality, he spoke to them in a body and no one gave any information at all. Indeed, they said they knew of no Mau Mau in the area. Later he questioned some of them individually and privately and they made disclosure. After this the appellant returned to the *manyatta*. The district officer asked him about *Mau Mau* in the area and he denied all knowledge of any. He was then arrested. The Supreme Court said: -

"As to withholding information which they might reasonably be required to furnish, it is true that these two witnesses did not come forward with information when the district officer arrived and asked 50 villagers collectively for their help; but they did give information when they were individually required to furnish it, and Mohamed Galgalo pointed out a place on the hill where he said the *Mau Mau* had been, which led to this place being mortared. In our opinion Laybon and Mohamed Galgalo were not accomplices in the accused's offences."

We cannot agree with this reasoning. We have no doubt that the witnesses (and others) were "reasonable required" to furnish the information in their possession as to the presence of Mau Mau in the vicinity when the district officer spoke to them in a body. Each committed the offence of withholding at that moment, and their disclosures later could not affect this. The real question, in our opinion, is whether the offences of withholding information committed by the witnesses were so connected with the similar offence of the appellant as to make them *participes* in his *crimen*. If so, they were his accomplices. In spite of the rather special and individual nature of the offence—"withholding any information in his possession"—we think a number of persons could commit the offence jointly, by withholding by prior agreement information in their joint possession. Each would then be an accomplice of all the others. But in the absence of prior agreement between them we think that the offences would probably be distinct and separate, even though all stood silent at the same moment, when the law required each to speak, and even though the information in the mind of each one was substantially identical with that in the minds of all the others. A fortiori, we think the offences must be separate if the duty to disclose springs up at different times for different persons. As to that, it may be contended that the duty of the appellant to speak only arose when the district officer questioned him, in which case the witnesses' offences were completed before his' was committed, or it may be that he was under an immediate duty to speak as soon as he visited the town and could get in touch with the Security Forces or other authorities. In other words, it may be that the words "reasonably required" in

Emergency Regulation 27 do not import an express request for information, but only that the circumstances should be such as to oblige a good citizen to volunteer it. We shall not attempt to answer this difficult question until it may become necessary to do so. On either footing, the appellant's offence was committed at quite a different time from the offences of the witnesses. They could not be the same offence, unless possibly on the footing that they were committed in pursuance of a conspiracy of silence, and there is really no evidence of this. It may be that the appellant ordered and procured each of the witnesses to withhold information, which would make him an accomplice of their offences, but that is not the same thing. They seem to have had nothing to do with the appellant's own offence of withholding information. We therefore agree with the Supreme Court, though for different reasons, that they were not accomplices as regards either count.

Mr. Oulton's next point was that, on a proper consideration of the evidence as a whole, the case was one on which no reasonable Magistrate could have convicted. He had of course attacked the findings of fact before the Supreme Court, and submitted to us that the Supreme Court had not really dealt with his arguments on the facts in their judgment. We think this submission is without foundation. The Supreme Court said:-

"We think that the Magistrate was right in not considering that these inaccuracies or uncertainties as to the intervals between the events described by these witnesses necessarily meant that the witnesses were untruthful whenever they alleged that Mau Mau gangsters visited the manyatta and were harboured by the appellant. They are nomadic people, living under primitive conditions, in which the passage of time probably had little meaning for them."

This expressly deals with Mr. Oulton's most serious criticisms of the evidence. and there are other passages in the judgment dealing with other criticisms, and showing, in our view, quite clearly why the Supreme Court was unwilling to reverse the Magistrate on the facts. Nevertheless, Mr. Oulton is entitled on second appeal to take the point which he seeks to establish, for it is a question of law. In Bracegirdle v. Oxley, (1947) 1 A. E. R. 126, a divisional Court of the King's Bench Division consisting of five Judges reversed the Justices who had acquitted on a charge of dangerous driving, and Lord Goddard, C. J., said:

"It is, of course, said that we are bound by the findings of fact set out in the case by the Justices, and it is perfectly true that this Court does not sit as a general Court of Appeal against Justices' decisions in the same way as quarter sessions, for instance, sit as a Court of Appeal against the decisions of Courts of summary jurisdiction. In this Court we only sit to review the Justices' decisions on points of law, being bound by the facts which they find, provided always that there is evidence on which the Justices can come to the conclusions of fact at which they arrive. I should state that the Court has had the advantage of argument from Mr. Parker, on the instructions of the Treasury Solicitor, who has intervened as amicus curiae to enable the Court to have the benefit of a full argument on one side and the other, and Mr. Parker concedes that, if Justices came to a decision to which no reasonable bench of Justices, applying their minds to proper considerations and giving themselves proper directions, can come, then this Court can interfere, because the position then is exactly the same as though the Justices have come to a decision of fact which there was no evidence to support."

We accept that view of the law and should if necessary act upon it; but it arises only if it can be said that the findings were perverse or unreasonable or that there had been an unjudicial approach to the evidence. With all due attention to Mr. Oulton's objections to the evidence in this case, some at least of which were weighty, we do not find it possible to go so far as that. We are not prepared to set aside the findings of fact.

Mr. Oulton's last point was based on alleged defects of interpretation. In dealing with a submission of no case, the Magistrate remarked that there had been "considerable difficulty over interpretation" and it may be inferred that he considered that this accounted, or may have accounted, for some of the discrepancies in the evidence of the prosecution witnesses. Mr. Oulton relied on Meghji Naya, 19 E. A. C. A. 247, and submitted that the Magistrate ought to have intervened. We think that Meghji Naya's case does not at all apply. There the interpretation was "bad", and the Magistrate knew it was bad, but disregarded this, although it was a case where it was most essential to have the accused's evidence properly before the Court. Interpretation may be "difficult" without being "bad". It is quite probable that in this case double interpretation may have been necessary, a situation which nearly always causes difficulty, but does not necessarily, or even probably, mean that a trial cannot be properly conducted. We think there is no substance in this point.

The appeal is dismissed.