Rex v Busigo (Criminal Appeal No. 13 of 1945) [1945] EACA 15 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), MARK WILSON, Acting C. J. (Tanganyika) and BARTLEY, J. (Kenya)

## REX, Respondent (Original Prosecutor)

## YAKOBO ISAIRI BUSIGO s/o MAYEGO, Appellant (Original Accused) Criminal Appeal No. 13 of 1945

(Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Practice—Additional evidence on appeal—Power of East African Court of Appeal to call for additional evidence—East African Court of Appeal Order in Council, 1921, Article 3—Uganda Criminal Procedure Code, Section 317.

By Article 3 of the East African Court of Appeal Order in Council, 1921:—

"The process of the Court of Appeal shall run throughout the said territories, and any Judgment, Decree or Order of the Court of Appeal shall have full force and effect in every such territory, and shall be executed and enforced by a Court in such territory in like manner as if it were an original Judgment, Decree or Order of the Court from which the appeal is brought, and for all purposes of, and incidental to, the hearing and determination of any appeal within its jurisdiction, the Court of Appeal shall have all the power, authority and jurisdiction vested in the Court from which the appeal is brought."

By Section 317 of the Uganda Criminal Procedure Code: -

"(1) In dealing with an appeal from a subordinate court the High Court, if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by a subordinate court.

(2) When the additional evidence is taken by a subordinate court, such court shall certify such evidence to the High Court which shall thereupon proceed to dispose of the appeal.

(3) Unless the High Court otherwise directs, the accused or his advocate shall be present when the additional evidence is taken.

(4) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a subordinate court."

During the hearing of the appeal by the appellant against his conviction of murder it became apparent that certain evidence tendered at the trial was not clear, and the question arose whether additional evidence should be called to clarify the position.

Held (16-2-45).—That as it was not a question of calling new evidence but merely of elucidating evidence already on the record it was a proper case for the exercise of the Appellate Court's power.

High Court of Uganda directed to take additional evidence from witnesses who had testified at the trial.

Rex v. Sirasi Bachumira (1936), 3 E. A. C. A. 40 distinguished, The King v. Robinson (1917), 2 K. B. D. 108 referred to.

Appellant absent, unrepresented.

Phillips, Crown Counsel (Kenya), for the Crown.

ORDER (delivered by BARTLEY, J.)—A main ground for appeal in this case was that Assistant Superintendent Police Cecil Mathias was called as a witness at the trial in contravention of the provisions of section 268 of the Criminal Procedure Code in that this witness had not given evidence at the preliminary inquiry and the requisite statutory notice of the intention to call him had not been given to the accused. The necessity for the statutory notice is admitted.

A point not unconnected with that ground of appeal has arisen during the hearing of the appeal.

The Government chemist, unfortunately, was not called as a witness at the trial; his report was admitted as evidence under section 150 (1) of the Criminal Procedure Code. In that report the Government chemist sets out that he received from No. 209 I/c P. C. Y. Otoo, on October 4th, the following specimens: -

"A. Jar containing stomach, liver, small intestines and one kidney of a child.

B. Jar containing meat and soup bones.

C. Bottle containing soup.

D. Bottle containing vomit.

E. Bottle containing milk."

The report proceeds to state that arsenic was found in the contents of A, B and C, but none in the contents of D and E. Dr. Keidon, a medical officer who dispatched the exhibits to the Government chemist, gave the following evidence as to the dispatch: $-$

"I sealed stomach, liver, intestines and kidney of deceased in a jar and handed same to police (Mr. Mathias). I did same with the soup and bones which I found in Dr. de Souza's house and also the soup vomit and breast milk of Mrs. de Souza."

Assistant Superintendent Police Cecil Mathias testified to Dr. Keidon handing him two sealed jars and two sealed bottles containing specimens, and to his handing them to P. C. Y. Otoo, who testified to receiving two sealed jars and two sealed bottles from Assistant Superintendent Police Mathias and taking them to the Government analyst. We cannot, of course, conjecture as to how it happened that the Government chemist received two sealed jars and three sealed bottles when the evidence of the two intermediaries between him and Dr. Keidon only spoke of two jars and two bottles, and Dr. Keidon's evidence does not help to elucidate the matter. In the circumstances set out and in order to elucidate the evidence given we considered whether this was a fit and proper case for the exercise of the powers conferred upon this Court to call for additional evidence by Article 3 of the Eastern Africa Court of Appeal Order in Council, 1921, which reads : ---

"3. The process of the Court of Appeal shall run throughout the said territories, and any Judgment, Decree or Order of the Court of Appeal shall have full force and effect in every such territory, and shall be executed and enforced by a Court in such territory in like manner as if it were an original Judgment, Decree or Order of the Court from which the appeal is brought, and for all purposes of, and incidental to, the hearing and determination of any appeal within its jurisdiction, the Court of Appeal shall have all the power, authority and jurisdiction vested in the Court from which the appeal is brought."

The powers vested in the Court from which this appeal is brought are contained in section 317 of the Uganda Criminal Procedure Code, which reads: -

"317. (1) In dealing with an appeal from a subordinate court the High Court, if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by a subordinate court.

$(2)$ When the additional evidence is taken by a subordinate court, such court shall certify such evidence to the High Court which shall thereupon proceed to dispose of the appeal.

(3) Unless the High Court otherwise directs, the accused or his advocate shall be present when the additional evidence is taken.

(4) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a subordinate court."

Realizing that such jurisdiction must always be exercised with great care (The King v. Robinson (1917) 2 K. B. D. 108) we are of the considered opinion that this is a proper case for its exercise. Quite apart from the fact that the evidence will throw light upon the case (The King v. Robinson, supra) this is not a question of directing new evidence to be taken, but merely of directing the elucidation of evidence already on the record. In that respect this case can be distinguished from Rex v. Sirasi Bachumira (1936) 3 E. A. C. A. 40, in which Crown Counsel suggested that in the interest of justice this Court should send back the case for a retrial, or for the taking of further evidence, and the Court, although expressing the view that it had power to do either, refused to exercise the power on the ground that additional evidence should not be taken to fill a gap in the prosecution case. The facts in that case were that there was no evidence identifying the person named Matundi, who was admitted to hospital seven days after a person of the same name had been stabbed, with the person who had been stabbed.

For the reasons given, we direct the High Court of Uganda to take additional evidence from Dr. Keidon, P. C. Yosia Otoo, Assistant Superintendent Police Mathias and the Government chemist on the lines indicated, in accordance with the provisions of the law quoted above, and to return the said evidence to this Court, when taken, as soon as possible. Meanwhile, the hearing and decision of the appeal is adjourned to the next sessions.