Rex v Correa (Cr. App. No. 107/1938) [1938] EACA 128 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and KNIGHT-BRUCE, Ag. C. J. (Tanganyika).

REX, Respondent (Original prosecutor) v.

## N. A. R. CORREA, Appellant (Original accused) Cr. App. No. 107/1938

Appeal from conviction by H. M. High Court of Uganda.

Criminal Law-Misdirection-Conviction affirmed in spite of misdirection.

Appellant appealed from a conviction of conspiracy to obtain money by false pretences. The learned trial Judge misdirected himself as to the effect of the evidence on one serious question and on other points of minor importance.

Held (23-8-38).—That though there was one serious misdirection and others of minor importance yet even if the trial Judge had not misdirected himself at all he must in reason have come to the same conclusion on the whole case and the appeal should be dismissed.

Appellant was a head clerk in the Public Works Department and his co-accused, one Bhatia, was a stone and sand contractor to that department. They were convicted of conspiring to obtain money by false pretences. Contractors in the ordinary course kept a delivery book in which delivery notes were made in triplicate by means of carbon papers. On a delivery being made the original delivery note was signed by the foreman or *mistri*. This signature was automatically reproduced on the duplicate and triplicate copies. The original delivery note was retained by the foreman, the duplicate was attached by the contractor to his account in verification thereof and the triplicate copy was normally retained by the contractor for his own reference. It was the practice of the department to pay on an account supported by duplicate delivery notes without referring to the originals. The fraud was perpetrated by Bhatia having his triplicate copies printed in the same way as the duplicates but numbered differently by means of a numbering machine. The triplicates were then passed off as duplicates and double payment obtained for each delivery. It was proved that a few days before the frauds commenced Bhatia had bought a numbering machine while the appellant waited in Bhatia's car outside the shop; that subsequently certain parts of this machine were seen in possession of the appellant; that the appellant had received cheques from Bhatia which bore dates which fell within the period during which the frauds were effected; and that on five occasions appellant had handed false duplicate delivery notes together with some of Bhatia's blank invoice forms to a junior clerk with instructions to prepare an account. Appellant an undischarged bankrupt earning Sh. 300 per month and having a wife and eleven children to support purported to explain the receipt of the cheques by saying that on the pay day of each month during which the fraud was being committed he lent Bhatia either the whole of his salary or Sh. 200 or Sh. 250 out of it on which he received no interest

or other consideration. He said he kept no account of the amounts lent and accepted in repayment post-dated cheques which sometimes were not met. A Mr. Brown gave evidence that it was a common practice for Bhatia to borrow from and give post-dated cheques to people in the office normally on pay day. The trial Judge misdirected himself in holding that even if Mr. Brown and one De Souza had lent money to Bhatia, this had no effect on the appellant's position. He also said that the whole of the numbering machine had been seen in appellant's possession whereas the evidence only disclosed that parts of the machine had been seen with the appellant.

Wilkinson for the appellant.

Hone, K. C., Attorney General (Uganda), for the Crown.

JUDGMENT (delivered by WHITLEY, C. J.).-Before proceeding to consideration of this case, we wish to express our keen appreciation of the assistance which we have received from the learned Attorney General for Uganda and from Mr. Wilkinson who argued the case for the appellant with the greatest lucidity and reasonableness. Both counsel had obviously put a vast amount of work into the case and it was a great advantage to us to have an extremely difficult and complicated matter so ably presented before us.

The judgment of the learned trial Judge is attacked on several grounds. In considering those grounds, we have to bear in mind that under our laws he was sitting both as judge and jury (with of course the assistance of assessors by whose opinion he was not bound) and that he had a great advantage which we have not inasmuch as he saw and heard the witnesses and in the course of a prolonged trial had every opportunity to observe their demeanour and the way in which they gave their evidence and form a first hand opinion as to their credibility.

The principles which must guide us are summarized by Lord Atkin in his judgment in Powell v. Streatham Manor Nursing Home (1935 A. C. 255) as follows: $-$

"The Appellate Court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law as the trial Judge. But the Court is still a Court of Appeal, and in exercising its functions is subject to the inevitable qualifications of that position. It must recognize the onus upon the appellant to satisfy it that the decision below is wrong: it must recognize the essential advantage of the trial Judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an Appellate Court can never recapture the initial advantage of the Judge who saw and believed".

See also A. C. Lewin and Others v. D. N. Neylan (1 E. A. C. A. 5 at p. $8$ ).

Applying those principles it is quite clear from the wording of the judgment that the learned trial Judge formed very emphatic opinions as to the credibility of certain of the witnesses and that he was definitely convinced from what he had seen and heard as to

the guilt of both the appellant and Bhatia. It is our duty to give all due weight to these opinions but we must not shrink from differing from them if it is clear to us from the record that the learned Judge misapprehended the evidence or came to conclusions not supported by it provided always that the effect of such mistakes appears to be such that it is reasonably doubtful as to whether he would have convicted if he had properly appreciated the evidence.

The main and most substantial ground of complaint is that he overlooked or failed to attach proper weight to the evidence of Mr. Brown, that it was a common practice for Bhatia to borrow from and give post-dated cheques to people in the office, usually on pay day. All that the learned Judge has to say on this point is: "Mr. Brown and de Souza may have lent money to Bhatia from time to time. If they did I have not had the advantage of hearing their explanation but whether they did or not does not in any way affect Correa's position". It seems to us, with respect, that he misdirected himself here as this evidence, if accepted, may have an important bearing upon the question whether Correa's explanation as to his financial dealings with Bhatia was in fact fantastic as the learned Judge found. It is true that only one cheque was traced to Mr. Brown and that there was no corroborative evidence as to loans. by others. It is unfortunate that he was not re-examined as to details but the fact remains that he was a prosecution witness even though it is abundantly clear from his evidence that he was well disposed. towards Correa. If the learned Judge did not accept his evidence we think it desirable that he should have said so and given his reasons.

Again it seems to us that he misdirected himself when he found that Cosima's evidence established that Correa had a numbering machine in his house in September or October, 1937. Making all due allowance for a not unnatural uncertainty as to exact dates we donot think the evidence goes further than to show that the machine was in Correa's possession in November. This misdirection, however, seems to be of minor importance for even if the machine was seen in his house only after the perpetration of the frauds it would none the less constitute most damning evidence suggesting Correa's. implication in the conspiracy. The learned Judge also went too far if he found, as apparently he did, that Cosima on some occasion. saw the whole of the machine. In cross-examination Cosima stated that he never saw the whole machine at one time. He merely saw different parts on different occasions. Here again it seems that the Judge's view as to the effect of the evidence, if not fully warranted, was not such as seriously to affect his general conclusions. $\mathbf{I}\mathbf{f}$ Cosima's evidence is accepted as being substantially true—and the learned Judge had no hesitation in believing it—he definitely at one time or another saw enough of the machine to be sure that it was a numbering machine such as the one which he subsequently picked out: at the police station and later in Court. It is significant in this. connexion that according to him, Correa, when first he saw him pick it up and begin to take off the wet paper in which it was wrapped, said: "Don't play with this machine you do not know what it cost". It is in evidence that Bhatia paid 125 shillings for the machine.

It was further complained by counsel that the learned Judge was wrong in suggesting that there was any obligation upon Correa to call the tradesmen to whom he endorsed the cheques received from Bhatia but all that the Judge said on this point was that: "If there were the slightest truth in Correa's story he would, in view of its patent improbability have called evidence by producing as witnesses his tradesmen with their books to support his explanation with figures and dates". Although the Judge may have expressed himself rather more strongly than was warranted, this comment appears to be based on solid foundations. Correa's explanation that these were post-dated cheques given to him by Bhatia to pay tradesmen's bills was undoubtedly a remarkable one and it would have strengthened his case greatly if he had been able to produce. some documentary or other corroborative evidence on the point. There could have been no difficulty in calling some of the endorsees who are well known residents in Kampala and their evidence might well have clinched the question as to whether in fact the cheques were post-dated and whether they were paid in settlement of Correa's. accounts. It was of vital importance to Correa to establish that they were post-dated as otherwise he was faced with the strange coincidence that: (1) the new type of delivery notes with a blank, devised for the purposes of the fraud, were delivered to Bhatia on the 22nd July; (2) the numbering machine was bought by Bhatia on the same day with Correa waiting in the car outside when he carried it out; (3) the first cheque from Bhatia to Correa is dated 23rd July, and (4) the first fraud was committed on the 26th July.

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It is true as counsel pointed out that it is for the prosecution to make out their case and not for the defence to prove that the prosecution is wrong, but when, as here, the prosecution have put forward a case which raises a strong presumption of guilt and there are features about the defence which appear improbable and difficult to explain it seems not unreasonable that the learned Judge should comment upon what has not been done in that direction. Some attempt might also have been made to procure Bhatia's counterfoil. cheque books which would probably have shown conclusively whether or not the cheques were post-dated.

The position then is this. There was one serious misdirection by the learned Judge and others which we regard as being of minor importance, but it seems to us that even if the Judge had given all due consideration to the evidence of Mr. Brown it is reasonably certain that he would have come to the same conclusion on the whole case.

The main importance of Mr. Brown's evidence is its bearing upon the question as to whether the learned Judge was justified in describing the financial transactions between Correa and Brown as "fantastic". Mr. Brown, if his evidence is accepted in toto, shows that other people in the office lent money to Bhatia and that Bhatia gave post-dated cheques. He does not say how he knew this, whether he had himself witnessed such transactions, what sort of sums were lent or what was the consideration. It is difficult to credit that a whole office full of people regularly lent the greater part of their monthly salary, on receipt of it, to a contractor doing business for the office without receiving something in return. And yet that is what Correa would have us believe was what happened in his case. The suggestion of the defence based upon Mr. Brown's evidence would seem to be that others were doing the same thing. Undoubtedly Bhatia did give one cheque to Mr. Brown but we know nothing definite as to the circumstances of that transaction. Although he does not say so in so many words it would seem from the learned Judge's observation that "Mr. Brown and de Souza may have lent money to Bhatia" that he may have felt that Mr. Brown was inclined, quite honestly, to exaggerate in favour of Correa towards whom he appears to have been sympathetically disposed. He was entitled to take that view but as we have already indicated it would have been better if he had definitely said so and given his reasons.

Apart from this we find ourselves unable to say that the learned Judge was not fully justified on the evidence as a whole in refusing to accept Correa's explanation of his financial dealings with Bhatia. He was the responsible head clerk in the Public Works Department office which dealt with, checked and supervised the carrying out of Bhatia's contract. He was undoubtedly in a position to facilitate the perpetration of a fraud such as this if so disposed. Kifuko who did the actual checking was under his orders and in a much inferior position. Correa was an undischarged bankrupt with a salary of 300 shillings per month and a wife and eleven children to support on it. On the pay day of each of the months during which the fraud was being committed he says that he lent to Bhatia either the whole of his salary or 200 or 250 shillings out of it. For this he received no interest or consideration whatsoever. $H_{\mathcal{A}}$ kept no note of the amounts lent and accepted post-dated cheques which were sometimes not met. All these cheques were endorsed by Correa to his creditors and he says that at the beginning of each month he carried on his household expenses on small sums which he had in hand. One can imagine the number of small daily expenses he must have had to meet with a wife and eleven children entirely dependent on him. All this inconvenience he put himself to cheerfully out of sheer kindness of heart. If one accepts the dates on the cheques he began to receive them from Bhatia within a few days of the date of the first fraud and of the purchase by Bhatia of the numbering machine. He ceased to receive them when the frauds ceased. Correa apparently did not deal with only one general supplier of goods. One cheque would be endorsed to one person and another to another. The dates of the cheques range from early in the month to late in the month. It is in evidence that Bhatia's financial position was sound. His bank account shows that he was only very occasionally overdrawn and then only for very small sums and for one or two days. The account gives the impression that he was a highly satisfactory customer from the bank's point of view, and it seems curious that he should have had to have recourse to the promiscuous borrowing which Correa attributes to him. It is again remarkable that the loans by Correa should have begun at approximately the same time when Bhatia began to make his large illicit profits out of the fraud and ought accordingly to have been the less in need of financial help.

It was argued that the learned Judge was wrong in believing Cosima and Kifuko and in rejecting the evidence of Fernandes. We are unable to find anything on the record which would justify us in

coming to that conclusion. Against Cosima the strongest criticism is that he contradicted himself as to dates. He certainly did but that is a common failing with African witnesses who at the time when events of apparently little importance take place have no reason to register the actual dates in their minds. We are favourably impressed by the moderation of this witness's evidence. He could easily have said that he saw the whole of the numbering machine on both occasions whereas he frankly admitted that at one time he saw one part of it and at another time a different part. It is also significant that in cross-examination it was elicited for the first time that he had picked out the machine from amongst others at the police station. There appears to be no reason whatsoever why he should invent a story such as his with such striking detail and particularly in order to put his former employer into trouble.

As regards Kifuko there again seems no reason why he should give false evidence. He occupied the lowliest position in the office and it would seem natural that he should carry out the instructions of his superior, Correa. It appears most unlikely that he, rather than Correa, should be the accomplice in the office. The only thing which might implicate him is the fact that he wrote some of the notes for Bhatia. We find ourselves unable to say that the learned Judge was wrong in accepting his statement that he did so under Correa's instructions.

There are two points which may appear to be in favour of the appellant. The first is that it would appear unlikely that Bhatia would pay Correa by cheque if they were in fact engaged in a conspiracy to defraud. This point was apparently not taken at the trial and therefore was not considered by the learned Judge. It was first raised by the Bench in this Court.

At first sight this use of cheques might appear to be suggestive of innocence but on the other hand it is possible that Correa felt that payment in this manner would be preferable and easier of explanation than his becoming possessed of and paying out large sums of cash in the middle of the month long after pay day.

The other point arises out of the circumstances surrounding the discovery of the fraud. According to Correa himself he hearing that the head office had been repeatedly calling for the Bhatia accounts, glanced at some bundles of delivery notes lying upon the counter and was immediately struck by the similarity of signature upon two of them and the varying degree of density shown in the carbon impressions. They were of course two carbon copies of the same original signature of Correa, which signature would appear to indicate that he had checked them or passed them as correct. Correa says that he showed them to Mr. Brown who corroborates him in this. Counsel suggested that it is most unlikely that if Correa were concerned in the frauds he should have drawn attention to these signatures. The learned trial Judge considered this point in his judgment and came to the conclusion that Correa had become apprehensive when he heard that these accounts were being investigated, realized that the frauds would probably be discovered, and decided to divert suspicion from himself by this apparently spontaneous action. In our opinion this view was not an unreasonable one for the Judge to take

on the evidence before him. It certainly strikes us as remarkable that if as Correa says he drew attention to the matter at Christmas. no definite steps were taken to probe it thoroughly until February. The most cursory examination of the two notes must have revealed that not only were the signatures identical but also all the writing on the notes and that they must have been two carbon copies of the same original with different numbers. One would have expected strong suspicions to have been aroused in the mind of the responsible. head clerk and that there would have been an immediate careful checking and investigation whereas the matter was allowed to lie. dormant for weeks.

This was a case which depended very largely upon the credibility of the witnesses which the learned Judge was in the best position to assess.

It is clear from the record that he tried the case with the utmost care and we feel that despite the misdirections as to evidence to which we have referred the learned Judge must in reason have arrived at the same conclusion. The appeal is accordingly dismissed.