Newmark v Rex (Cr.A. 72/1934. .) [1937] EACA 162 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

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Before ABRAHAMS, C. J. (Uganda), Ag. P.; LAW, C. J. (Zanzibar) $\mathcal{E}(\mathcal{E}^{\mathcal{A}}_{\mathcal{A}}) = \mathcal{E}(\mathcal{A}^{\mathcal{A}}_{\mathcal{A}})$ and WEBB, J. (Kenya). $\frac{d}{dx} = \frac{1}{\sqrt{2\pi}}$

> D. NEWMARK (Appellant) (Original Accused) $v$ .

## REX (Respondent) (Original Prosecutor). Cr. A. $72/1934$ .

Conviction by Magistrate largely on evidence improperly called by himself after close of case for prosecution—Calling of evidence by the Court at such stage—Insufficiency of other evidence—Order by Supreme Court of Kenya in its appellate jurisdiction directing a new trial before another Magistrate -Whether new trial should have been ordered-Criminal Procedure Code, section 346—Employment of Natives Ordinance (Laws of Kenya, Cap. 139), section 55-Withholding native wages.

Held (29-6-34).—That the mere fact that the Employment of Natives Ordinance was a special law and provided for special remedies and penalties did not justify an order for a new trial if the circumstances would not justify such an order in an ordinary criminal case. In this case an order for a new trial would not be just because at it would probably be led the evidence which the trial magistrate himself improperly called for and the dice would be loaded against the accused. Conviction quashed and order for new trial set aside. Rex v. Harris (1927) 2 K. B., page 87 followed.

Appeal from Supreme Court of Kenya in its appellate jurisdiction.

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Modera for appellant. $\alpha_{\rm max}$

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Bruce (Solicitor-General, Kenya) for Crown.

Modera.—Section 196 (a), Criminal Procedure Code, Magistrate ought to have dismissed the case. Not enough evidence to justify defence being called upon. Magistrate says he wants to call someone else as he is "not satisfied" with the prosecution evidence. Crown did not apply to adduce further evidence. Court had no power to summon the witness. Rex $v$ . Sukh Dev (1930) Labore Reports, p. 539. Rex v. Santokbhai Rawchhai, Volume XIII, Kenya Law Reports, p. 74. Whole judgment is a diatribe against Mr. Newmark in this matter. He has gained all facts from evidence of Miss Jarrett. As to paragraph 3 that this Ordinance is a special Ordinance is no valid reason for interference.

$Bruce$ —An appeal lies only on a point of law. Section 340. Discretion is absolute. Exactly same powers apply to revisions. Thompson v. Goold, 79 L. J.; K. B. 911. Vickers, Son and

Maxim. v. Evans, 79 L. J.; K. B. 955. Discretion not to be Order under section 340 is not a "decision" under limited. section $346$ . "Decision" is a finding on a matter involving a question of law or fact. Rex v. Hertfordshire Appeal Tribunal 86, L. J.; K. B., p. 584.

Modera replied.—Three points only: (1) No discretion and no power to exercise it; $(2)$ if any discretion it was not exercised judicially; $(3)$ question of decision. As to $(3)$ the Supreme Court came to a conclusion. As to $(1)$ section 241 $(a)$ $(1)$ of Code. "Order him to be tried". "Trial" does not mean a "re-trial". As to-(2) "Special Ordinance" not proper to be taken into consideration. Notes section 423, Sohoni Code of Criminal Procedure (1910 Edition), p. 787.

JUDGMENT.—This is an appeal under section 346 of the Kenya Criminal Procedure Code from an Order of the Supreme Court of Kenva in its appellate capacity.

The appellant was charged in the District Commissioner's Court, Nairobi, with an offence against section 55 (1) of the Masters and Servants Ordinance, Cap. 139, in that two former employees of the Avondale Hotel had complained that he had wrongfully withheld their wages.

After the close of the case for the prosecution the appellant gave evidence submitting that he was not "the employer" of the complainants within the meaning of the Ordinance. The Magistrate then recorded the following observation:

"At this stage of the proceedings it appears to me to be quite clear that the accused admits the non-payment of wages, but the question of responsibility for payment is at issue. In my opinion the appearance of the hotel proprietress is necessary before a ruling can be given as to the accused's responsibility. I, therefore, order that a summons be issued for her appearance. . . ."

This lady, Miss Jarrett, gave evidence adverse to the appellant's case and the Magistrate then found against him. From. this decision and the consequential orders the appellant appealed. to the Supreme Court, the learned Judges of which (Lucie-Smith, Ag. C. J., and Horne, J.) remarked as follows: "We should have no hesitation in allowing this appeal and quashing the conviction in an ordinary criminal case. But in this case an attempt is. made under Chapter 139 to protect the interests of native employees who are presumed not to be able to look after their own interests." In coming to a conclusion that the conviction ought not to be allowed to stand the learned Judges were of opinion that Miss Jarrett ought not to have been called by the Court after the close of the case for the defence as the calling of $a_i$ witness by the Court at such a stage should be limited to matters.

arising ex improviso on the part of the prisoner ( $Rex$ v. Harris (1927) 2 K. B., p. 587). With that statement we respectfully agree, but we regret we are unable to agree that the Ordinance under which the prosecution was brought justified of itself an order for a new trial. If it did so, such an order could be extended to and made in each and every appeal from a conviction under any special or general law. It would depend entirely on the personal view of the Judges concerned, which might even include sympathetic motives, and would not necessarily have to be based on legal considerations. An order for a new trial can only be made as the result of the exercise of judicial discretion.

We think, nevertheless, that we are entitled to look at the record of the case ourselves to see whether a new trial can be properly ordered for the purpose of doing justice. We cannot, however, find how on any consideration such an order would be If the remarks of the Magistrate meant that he was not iust. satisfied that the prosecution had proved their case, and therefore he proposed to call Miss Jarrett to give them an opportunity of convincing him, then he ought to have acquitted the appellant at that stage, and an order for re-trial would be a reversal of what was tantamount to an acquittal. On the other hand he might have come to the conclusion that though he could not accept the appellant's evidence out of hand, he preferred not to consider whether the prosecution witnesses had proved their case when he could himself call a witness to give conclusive evidence. If in these circumstances a new trial were ordered this would be to enable the prosecution to employ in its proper place that evidence which has been found objectionable by the Supreme Court and ourselves and upon which it is manifest the Magistrate largely founded his decision. This would not be fair to the appellant who would be brought to trial with the dice heavily loaded against him. If by order we could exclude Miss Jarrett's evidence the position would perhaps be otherwise, but obviously an order for a re-trial could contain no limitations on evidence legally admissible.

In the circumstances, therefore, we allow the appeal, set aside the order of the Supreme Court directing a new trial, quash the conviction by the Magistrate and acquit the appellant. Any fine or other payment made by the appellant in respect of that conviction must be refunded to him.

The learned Solicitor-General in supporting the conviction has argued that no appeal actually lies to this Court from the Supreme Court in this case in as much as there has been no "decision" within the meaning of section 346 of the Criminal Procedure Code. He urges that the Supreme Court merely came to a "finding" on the point in question and that they had full and unfettered discretion to make any "Order" on that finding in terms of section 340 (17) (a) of the Criminal Procedure Code. With this argument we cannot agree. Apart from the question of discretion which we have already dealt with, such an argument appears to us to be in the nature of straining language. Whatever was "found" by the Supreme Court became incorporated in its "Order" which was the effective "decision" in that appeal. The appeal from that order is not on a question of fact, but on a question of law, namely whether or not the learned Judges had exercised a discretion judicially.