Mwomezi and Others v Reginam (Criminal Appeal No. 194 of 1955) [1950] EACA 434 (1 January 1950)

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal, and MAHON, Acting Chief Justice (Tanganvika)

## (1) MATHIAS s/o MWOMEZI, (2) ALFRED s/o KYAKASHUMBA, LAURIANI s/o SONGE, Appellants (Original Accused)

### REGINAM, Respondent

#### Criminal Appeal No. 194 of 1955

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

Evidence—Attack on witness's credit—Whether evidence of other criminal conduct by accused should be excluded—Indian Evidence Act, section 157.

The second and third appellants were convicted on counts of attempted murder, arson and conspiracy. The first appellant was convicted on the third count only. One of the witnesses for the prosecution in cross-examination directed to show enmity on his part towards the accused gave evidence of other criminal conduct by the accused to justify this enmity.

Held (17-12-55).—That the Judge need not have excluded the witness's answers from the record as he had correctly directed himself that these allegations had no bearing on the guilt or otherwise of the accused in relation to the charges before the Court but were relevant<br>only to the question of the conduct of the witness.

Appeals dismissed.

No cases.

### $R.$ S. Patel for appellants.

Samuels for respondent.

JUDGMENT (prepared by Worley, President).—These three appellants were arraigned before the High Court of Tanganyika sitting at Bukoba, on an information charging each of them with three offences, namely attempted murder, arson and conspiracy to commit a felony. A fourth man was arraigned with them but was acquitted on all counts. The first-named appellant, Mathias, was convicted on the count of conspiracy only and sentenced to imprisonment for five years. The second and third named appellants, Alfred and Lauriani, were convicted on all three counts and sentenced to concurrent terms of imprisonment, the longest being 15 years in respect of the offence of attempted murder; for the arson they were sentenced to 14 years.

The learned trial Judge refused to certify the case as one fit for appeal on questions of fact or mixed law and fact, but on application being made to this Court in October of this year, leave to appeal on those grounds was granted, and by direction of the then President an advocate was assigned to argue the appeal on behalf of the appellants.

The substance of the case made against the appellants was that on 11th September, 1954, they were heard to express, in the presence of each other, their common intention to set fire to the house of one Leonard, a school teacher in the village where the appellants lived, and that, the same night after the occupants had gone to bed and were asleep, they did set fire to and burn down Leonard's house. It was a house of the ordinary African thatched type. At the time nine people, including a number of children, were inside the house and the evidence was that the front door was held shut for so long as the fire-raisers could hold it; meanwhile the back door became unusable by the fall of the burning roof. The voices of the second and third appellants were heard declaring at the front door "You must die in the house".

On these facts the learned trial Judge was clearly justified, following earlier decisions of this Court, in holding that the persons who set fire to the house were not only guilty of arson, but also of attempted murder, and the questions raised on this appeal are whether the learned Judge was justified $(a)$ in accepting the evidence of the prior threats and $(b)$ in accepting the identification of the second and third appellants as being two of the fire-raisers.

The conviction of the first appellant rested solely on the evidence of one witness named Idi. He testified to having heard the three appellants' threats to set fire to Leonard's house. Mathias, the first appellant, was legally represented at the trial, but when called on for his defence elected to say nothing. Mr. Patel has contended that the learned Judge wrongly drew an adverse inference from this election but we are unable to agree with this contention. On this aspect of the case the trial Judge says in his judgment:-

"There was nothing internally in Idi's evidence and nothing brought to light in his cross-examination, and there was nothing in his demeanour, to cause me to reject out-of-hand his evidence. The accused Mathias has not seen fit to go into the box to deny this evidence, or even to make an unsworn statement in denial. I therefore see no reason for rejecting the evidence of Idi. I believe it, and I convict Mathias (first accused) on the third count."

We could see nothing wrong in this passage and accordingly the appeal of the first appellant against his conviction was dismissed.

As regards the second and third appellants, the evidence against them on the conspiracy counts was not only that of Idi, but also of two other witnesses, Adrian and Bombo, who spoke of hearing similar threats made by these appellants at an earlier hour on the same day. The conviction of these two appellants on the counts of arson and attempted murder rested on the evidence of Leonard and his brother Odiro, who both testified that they recognized the voices of the two appellants uttering threats outside the door of the burning house. The witnesses and the appellants have been mutually acquainted for many years. Leonard further claimed that when he and his brother eventually succeeded in getting the door open they ran out of the house to see four or five men running away. At the trial Leonard claimed to identify all the four accused persons as being among those escaping, in addition to one Gerevasi, who was not before the Court. There was also evidence, admitted in accordance with the provisions of section 157 of the Indian Evidence Act, from one Adrian that on the night in question Leonard had told him that he recognized Alfred and Lauriani running away but not the rest, and had also heard the voices of Alfred and Lauriani saying "You must die in the house".

In view of this discrepancy in Leonard's evidence the learned Judge evidently considered it safe only to accept his identification of the second and third appellants.

Mr. Patel has made a number of other criticisms of the evidence affecting the credibility of the witnesses, but all the matters referred to were before the learned Judge and were considerd by him. A passage in the evidence has, however, caused us some anxiety: it arose in this way. The witness Bombo testified that he had told Leonard of the threats he had overheard at about five o'clock and Leonard admitted having received a warning, though he said it was from

the witness Adrian. He said also that he knew that there was ill-feeling against him because he had given evidence against some people in the village who had been convicted; but in spite of the warning he had received he took no precautions, and allowed his family to go to bed and did so himself as if nothing unusual were to be feared. Such extraordinary conduct might well, if unexplained, throw doubt on his credibility and indirectly on that of the witnesses who claimed to have heard and reported the threats. In examination-in-chief Leonard explained his inaction by saying that he knew the appellants would be arrested if they set fire to his house; a not very convincing explanation. He also said he left the matter in the hands of Government and God. The advocate for the defence was apparently not content to leave the matter there and in the course of crossexamination elicited the following answers: "I had the warning after sunset and the leader of the people in the dock lives on the road leading to the village headman, and I was afraid of him. I hoped they would set my house on fire because they were arresting people, tying them up, entering people's houses and stealing their coffee, and they were always along with Salimu Papuru, their leader. I hoped they would set my house on fire so that they might be arrested".

Later in the cross-examination the witness said that he was on good terms with the appellants until he gave evidence at the previous trial the day preceding the fire, and in response to further cross-examination he said: "When I say I was on good terms with them until after I gave evidence, I mean simply that the things they had been doing to others—arresting, tying up and so on—they had not been doing to me: it was during the coffee season, and people were staying in their houses to guard their coffee".

These answers may have been highly prejudicial to the appellants, and, had they been given in examination-in-chief, might well have been fatal to the convictions. They were, however, not only elicited in cross-examination but were not objected to: nor has any ground of appeal been founded on them. We can only assume in these circumstances that these answers were not unecessarily volunteered but were a justifiable response to questions put by the defending advocate, who was, of course, attacking the witness's credit. We have considered whether the learned trial Judge should of his own motion have excluded these answers, but have come to the conclusion that it was not an improper exercise of his discretion to leave them on the record for, otherwise, the remarkable inactivity of Leonard would have remained without any explanation. The weight, if any, to be given to these statements was primarily a matter for the trial Judge, but he correctly directed himself that these allegations of the commission by the appellants of other offences had no bearing on their guilt or innocence on the charges before the Court but were relevant merely to the question as to whether Leonard had acted in a manner inconsistent with the truth of those charges.

For these reasons we dismissed the appeals of the second and third appellants.