Rex v Dossani (Criminal Appeal No. 77 of 1945) [1946] EACA 39 (1 January 1946)

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

# VASHANJEE LILADHAR DOSSANI, Appellant (Original Accused)

#### Criminal Appeal No. 77 of 1945

## (Appeal from decision of H. M. High Court of Nyasaland)

Criminal Law—Practice—Re-trial—Nyasaland Criminal Procedure Code, section 334.

The appellant was convicted and sentenced for offences against Defence (Price of Goods) Regulations, 1943. On appeal to the High Court of Nyasaland the learned Chief Justice found that although there was evidence on the record which might support the conviction there were certain unsatisfactory features prejudicial to the appellant connected with the trial resulting in his not having had a satisfactory trial and he ordered a re-trial.

The appellant appealed.

Held (17-6-46).—That an order for a re-trial is the proper order to be made when accused has not had a satisfactory trial.

Observations on the "setting of traps" by the police to catch offenders.

Cases referred to: Kamunan v. Rex 11 E. A. C. A. 122; Naidu v. King 42 Madras 885.

Russell (Parekhji with him) for the appellant.

Mathew, Attorney General (Nyasaland), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-The appellant was convicted and sentenced by the Magistrate, Blantyre, for offences against the Defence (Price of Goods) Regulations, 1943. On appeal to the High Court of Nyasaland the learned Chief Justice directed that there should be a re-trial holding "in view of the omissions and irregularities which I have stated I have reached the conclusion that the appellant has not had a satisfactory trial and that it is impossible for this Court to do other than order a re-trial on the authority of $\hat{K}$ amunan v. Rex 11 E. A. C. A. 122". That case is an authority for the order made, as although a Uganda case the section of the Criminal Procedure Code under which the order was made is in the same terms as the section of the Nyasaland Procedure Code under which the order for re-trial was made. The section in so far as it is material reads as follows: —

"344. (1) The High Court shall then send for the record of the case, if such record is not already in Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Attorney General, if he appears, the Court may, if it considers that there is not sufficient ground for interfering, dismiss the appeal, or may-

- (a) in an appeal from a conviction— $\alpha$ - (i) reverse the finding and sentence, and acquit or discharge the accused. or order him to be tried by a court of competent jurisdiction, or commit him for trial;".

In Kamunan's case the learned Acting Chief Justice of Nyasaland said "From the record of this case I have come to the conclusion that the accused has not had a satisfactory trial and that a re-trial must be ordered".

It would seem in the present case that the learned Chief Justice made the order for a re-trial because of certain matters being prejudicial to the accused. Some of them may be instanced as:-

- 1. The rejection of the evidence of a witness Abubakar, the rejection being based on inadmissible evidence that he had lied with regard to an alleged conversation. - 2. The rejection of the evidence of a witness de Silva on the ground that he was "glaringly inconsistent" as to the clothes worn by the principal witness for the Crown, Teladia, on an occasion when the latter was in the accused's shop, the Magistrate's finding being the result of what was held to be an improper question by Crown Counsel. - 3. An important matter concerning an invoice which was not examined at the trial and one "to which appellant's Counsel attached importance". Another matter submitted by Counsel for the appellant in asking that the order for re-trial should be set aside was that adequate proof of the controlled price was not adduced at the trial. This question was carefully examined by the learned Chief Justice who held that the evidence was adequate. At this stage we will say no more than that the argument of learned Counsel for the appellant on the question does not in our opinion constitute a ground for setting aside the order. The following passage in the judgment of Wallis, C. J., in Varadarajulu Naidu v. The King 42 Madras 885 and 889 is in point:-

"It would not in my opinion be creditable to the administration of justice or in accordance with modern ideas on the subject that a conviction or a charge such as this if otherwise sustainable should be upset owing to a misconception on the part of the prosecution as to the proper mode of proving a statutory requisite not affecting the merits."

It is not in question that a re-trial should not be ordered for the purposes of allowing the prosecution to fill up the gaps in its case, but that is not the case here.

The case would be different were there no evidence on the record on which the Magistrate might have convicted. The learned Chief Justice's view was, as we interpret it, that there was evidence on the record which might support a conviction, but that as there were certain unsatisfactory features prejudicial to the accused connected with the trial resulting in his not having had a satisfactory trial, an order for a re-trial was the fairest order to make. On at least one occasion this Court under a similar procedure section made an order for a<br>re-trial on the ground that the *trial Judge had failed to consider the accused's defence*. Before dismissing the appeal and holding that there shall be a re-trial before another magistrate we make the following observations with regard to the procedure followed by the investigating officers in this case.

We think it right to draw attention to two respects in which there has been a serious departure in this case from the ordinary approved method of setting the kind of trap in this case. In the first place the money used was not supplied by the police; it was the personal money of Teladia, the agent provocateur. The effect of that is that in a trial which depends entirely, as the<br>learned Attorney General stated before us, upon the evidence of the agent provocateur the possibility of his having a direct personal interest in securing

a conviction cannot be excluded. If a conviction is obtained the agent provocateur can recover as a matter of right his £96 which according to him has been used in trapping the appellant. If on the other hand there is an acquittal the agent provocateur has no right of recovery from the appellant, though there may of. course have been an arrangement between the police and the agent provocateur that in any event the latter would have his money. This Court was not informed of there having been any such arrangement.

Secondly, there is the fact that no record was kept of the numbers of the notes which the agent provocateur took with him to the appellant's shop nor were the notes marked in any way so that subsequent identification of these notes—or some of them—in the possession of the appellant was not possible. That was a departure from the easy and ordinary method in such cases. If that easy and ordinary precaution had been taken an immediate search by the police, if their case is correct, would have revealed identifiable notes in the appellant's possession and in that way many of the difficulties which have arisen in the case would have been avoided.

We do no more than direct attention to these two points which have received no express attention at the hands of the Magistrate or the learned Chief Justice in their judgments. At the new trial no doubt these points will be given such consideration as the Court may think they deserve.

The appeal is dismissed.