Regina v Jamal (Criminal Appeal No. 115 of 1955) [1955] EACA 351 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and HOLMES, J. (Kenva)

## REGINA, Appellant

## RAMZAN AHMED JAMAL, Respondent (Original Accused) Criminal Appeal No. 115 of 1955

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

Appeal—Burden of proof on first appeal—Principles on which first appellate court should proceed in upholding criminal appeals—Power of Court of Appeal on second appeal to restore conviction entered by trial court quashed on first appeal—When exercised—Obtaining goods by false pretences— Whether there must be specific finding of an intent to defraud—To "defraud" $-Meaning.$

The appellant was convicted on two counts, one being for obtaining goods by false pretences.

On first appeal, the appellate Judge stated: "In civil appeals the appeal court has to be convinced that the original court was wrong in its finding of fact before it will set aside the finding of the court below. In criminal appeals the superior court has to be reasonably satisfied that the conviction was correct before it will allow it to stand." He quashed two convictions and sentences entered against the respondent. The Attorney-General asked the Court of Appeal to restore the convictions on the ground that the order quashing them would not have been made had there not been this misdirection. The second count had charged the respondent with obtaining goods by false pretences contrary to section 302 of the Penal Code.

It was not, upon second appeal, disputed that the respondent's false representation in question was false to the knowledge of the respondent as the trial magistrate had found, but the magistrate did not make any express finding that this false pretence was made with intent to defraud.

The first appellate Judge quashed the conviction because he did not consider it proved beyond doubt that the false representation was made with intent to defraud.

The complaintant had, in the instant case, been induced by the false pretence to give up a right to an immediate payment in exchange for a right to payment deferred for sixty days.

The first appellate Judge thought that if the respondent was merely trying to get this time in which to pay and intended to pay the bill when it fell due the intention was not fraudulent.

Held (8-7-55).—(1) Applying Fazelabbas Sulemanji and another v. R., on first appeal in a criminal matter the onus is upon the appellant/accused to show that the findings of the court of first instance were unreasonable or could not be supported having regard to the evidence. It is not enough for the appellate court to uphold an appeal because<br>the matter is complicated and it feels some doubt about it. To do so, it must go further and be satisfied that the matter is so complicated and uncertain that the court of first instance ought to have felt some doubt about it.

(2) The Court of Appeal has power, on second appeal, to restore a conviction which has been quashed on first appeal, but the power will only be exercised in the clearest cases, e.g. where the facts found are not inconsistent with any other reasonable interpretation than one of guilt but the conviction has been quashed because of errors of law in the first appellate court.

(3) Whilst an intent to defraud is an essential ingredient of the offence of obtaining goods by false pretences, it is not essential that in a clear case that there should be an express finding by the trial court to that effect; the intent may be inferred from the<br>facts. Indeed where money or goods are obtained by pretences that are false, prima facie, there is an intent to defraud.

(4) To defraud is to deprive by deceit, and it is deceit to induce a man to act to his injury, so that the complainant in the instant case having been induced by a false pretence to give up his right to immediate payment for a right to payment deferred for 60 days, he had been defrauded, it being immaterial that the accused person might have hoped to pay in the said period of time.

Appeal in respect of first count dismissed. Appeal in respect of second count allowed and conviction passed and sentence imposed thereon by court of first instance restored.

Cases referred to: Fazelabbas Sulemanii and another v. R., E. A. C. A., ante page 395, R. v. Gokaldas, (1949) 16 E. A. C. A. 116; R. v. Hammerson, (1914) 10 C. A. R. 121; R. v. Bennett and another, 9 C. A. R. 146; R. v. Carr, 12 C. A. R. 140; R. v. Naylor, L. R. 1 C. C. R. 4; R. v. Hill, 173 E. R. 492.

Sir James Henry (Acting Attorney-General, Tanganyika) for appellant.

Sayani for respondent.

JUDGMENT (prepared by Worley (Vice-President)).—This appeal is brought by the Crown under the provisions of section 325 of the Criminal Procedure Code against a judgment of the High Court sitting in appellate jurisdiction whereby the convictions and sentences of the respondent for offences contrary to sections 273 (b) and 302 of the Penal Code passed in the District Court of Lindi were quashed. The appeal only lies on matters of law.

The first ground of appeal, which relates to both convictions, is that the learned Judge in the High Court misdirected himself in law on the function of an appellate court in relation to findings of fact by the trial court. The relevant passage in the judgment reads: -

"In civil appeals the appeal court has to be convinced that the original court was wrong in its finding of fact before it will set aside the finding of the court below. In criminal appeals the superior court has to be reasonably satisfied that the conviction was correct before it will allow it to stand."

As a general statement of principle this passage is, to say the least, unhappily expressed. It appears to put on the Crown/respondent the onus of satisfying the appellate court of the correctness of the conviction: if that is what the learned Judge meant, then he has misdirected himself and his proposition is inconsistent with previous decisions of this Court. (Fazelabbas Sulemanji and another v. Reg. ante page 395.) It said:-

"The onus was upon the accused (appellant) on first appeal to show that the findings of the magistrate were unreasonable or could not be supported having regard to the evidence and there is no indication in the judgment of the High Court that the learned Judge appreciated and applied this principle."

Elsewhere in the judgment, this Court said: $-$

"We think it is not sufficient for an appellate court to say 'This matter is complicated and we feel some doubt about it'. That will justify an acquittal in a court of first instance but an appellate court must be able to go further and say: 'This matter is so complicated and uncertain that the court of trial ought to have felt some doubt about it'."

See also R. v. Gokaldas (1949) 16 E. A. C. A. 116 for a statement of the principles which should guide an appellate court with special reference to findings based on the credibility of witnesses.

The learned Attorney-General has asked us to restore the convictions of the respondent on the ground that the order quashing them would not have been made had there not been this misdirection. Mr. Savani, for the respondent, while conceding the misdirection, has argued that it was immaterial and that the High Court, properly directing itself, would have made the same order.

This Court has the power on second appeal to restore a conviction which has been quashed on first appeal: a similar power is conferred by Zanizbar legislation and was exercised in the criminal appeals referred to above. This power is however exercised in only the clearest cases, as, for instance, where the facts found are not consistent with any other reasonable intrepretation than. one of guilt but the conviction has been quashed because of errors of law in the first appellate court.

Applying this test to the first offence of which the respondent was convicted we are fully satisfied that it was not a case where we should restore the conviction. The charge in that count was that the respondent and others, all members of the Highlands Commercial Union Ltd., stole certain goods with which they were entrusted as bailees; the allegation being that they had sold these goods without authority and had retained for their company the proceeds of sale. There was no direct evidence implicating the respondent in these sales and we think the learned magistrate did misdirect himself on the evidence in saying that "If Ibrahim Ismail (the purchaser) is speaking the truth then it would appear that the (respondent) was a party to the removal of this bag from Dalgety's stock". Ismail certainly did not implicate the respondent directly and the learned magistrate's finding could only be justified by a series of inferences from the respondent's position in the company, and his possession of the godown key, which were not fully examined. So far as concerns the first count therefore this appeal fails.

The second count related to an entirely different matter: the respondent was charged with and convicted of obtaining goods, to wit, a bill of lading and other documents of title to 50 tons of cashew nuts, by false pretences contrary to section 302 of the Penal Code. The facts found by the magistrate were that the Highland Commercial Union contracted to buy from Ibrahim Ismail 50 tons of cashew nuts, the terms being "at sight against documents". Ismail drew a bill of exchange in accordance with these terms and sent it with the shipping documents to the National Bank of India, at Lindi. The respondent at Lindi was shown the bill and documents by the Bank Manager, Mr. Jamieson, but refused to pay saying that the bill should read "sixty days" sight documents against acceptance", in other words, that he was entitled to delivery of the documents on acceptance of the bill, but would have 60 days to pay. He asked Mr. Jamieson to alter the bill to 60 days payment. Mr. Jamieson asked for a guarantee that the bill would be honoured at 60 days and the respondent produced the manager of the company's bank who gave the required assurance. Mr. Jamieson then allowed the respondent to alter the bill to bring it into accordance with the alleged term of the contract, and then handed over to the respondent the shipping documents. The bill was dishonoured on presentation, and the National Bank of India has not been paid, the company having been put into liquidation. It is not now disputed that the representation as to 60 days' credit made to Mr. Jamieson was false to the knowledge of the respondent, as the magistrate found. The learned magistrate did not in his judgment make any express finding that this false pretence was made with intent to defraud.

In the memorandum of appeal to the High Court the only ground raised in respect of the conviction on this count was that Mr. Jamieson was not induced to part with the bill of lading and other documents by reason of the false pretence, but the learned Judge on first appeal had no hesitation in rejecting this argument. That was a finding of fact, based on the respective credibility of the respondent, Mr. Jamieson and Ismail, with which we could not interefere, even if we were disposed to take another view. But in truth it was the only reasonable conclusion from the evidence.

The learned Judge's reason for quashing the conviction was that he did not consider it proved beyond doubt that the false representation was made with intent to defraud. He says: -

"Section 302 of the Penal Code makes it clear that before anyone can be convicted of obtaining goods by false pretences it must be shown that there was an intent to defraud. The learned magistrate did not find that there was such an intention and the Highlands Commercial Union banker was of opinion that the bill would be honoured in 60 days. Is it not possible that the appellant was only trying to obtain time to pay? This is so much open to doubt that I must allow the appeal."

As we have said this question of the absence of a finding of intent to defraud was not raised in the memorandum of appeal, nor was any point made of it in the argument on the appeal in the High Court, though the advocate for the present respondent does appear to have argued that if he had reason to believe that the bill as altered would be met at 60 days there could not be any intent to defraud. It is unfortunate that the learned Judge did not ask for fuller or further argument on the point on which he allowed the appeal: had he done so he would in all probability have had the advantage of being referred to the cases which were cited to us.

It is of course true that an intent to defraud is an essential ingredient of the offence of obtaining goods by false pretences: but it is not essential in a clear case that there should be an express finding to that effect: the intent may be inferred from the facts: see Archbold 33rd Ed. 728 and the cases there cited. In R. v. Hammerson (1914) 10 Crim. App. R. 121, the Court of Criminal Appeal said: "Where money is obtained by pretences that are false, prima facie there is an intent to defraud". The principle must apply equally when goods are obtained by false pretences. In our opinion the instant case was just such a case in which, in the absence of any rebutting evidence or explanation the intent could be inferred from the facts, and this inference is implicit in the magistrate's judgment. The only explanation put forward was that the respondent was merely trying to get 60 days' time in which to pay and intended to pay the bill when it fell due. The learned Judge on first appeal thought that if such was his intention it would not be fraudulent, but, with respect, this is an error of law: see Archbold op. cit. p. 729 and the cases there cited. In Bennett and Newton's case, (1913) 9 C. A. R. 146 at p. 154 the Court of Criminal Appeal approved the following definition of fraud: "To defraud is to deprive by deceit: it is deceit to induce a man to act to his injury". If that be applied to the facts of the case before us, it is apparent that Mr. Jamieson was induced by the false pretence to give up his right to immediate payment on transfer of the documents in exchange for a right to payment deferred for 60 days. There can be no doubt that he was defrauded and the fact that the respondent may have hoped to pay in 60 days' time is irrelevant. There is no suggestion that the manager of Barclay's Bank was not acting in perfect good faith in giving his assurance, but that also is irrelevant.

As we have said, nothing else has been put forward by the respondent to rebut the prima facie presumption of intent to defraud, nor can anything inrebuttal be found in the prosecution case. There is nothing in the judgment of the High Court to suggest that the learned Judge would have interfered with the magistrate's finding if he had not misdirected himself on the question of intention. We therefore feel bound to allow this appeal as far as it relates to the second count, and to restore the conviction passed and the sentence imposed in respect of that count by the District Court of Lindi. We accordingly remit this matter to the High Court with directions that that court take all necessary steps to secure the appearance before it of the respondent and to commit him to the proper prison to serve his sentence of imprisonment.