Rex v Hasham (Criminal Appeal No. 128 of 1941) [1941] EACA 93 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

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

REX, Respondent

### $\dot{v}$ .

# MOHAMED ALI HASHAM, Appellant

### Criminal Appeal No. 128 of 1941

### Appeal from decision of H. M. High Court of Tanganyika

Criminal Law—Right of appeal—Second appeal—Appeal from decision of High Court of Tanganyika affirming conviction on appeal from a subordinate court-No power in second appellate Court to entertain an appeal on a point of fact or of mixed law and fact-Tanganyika Criminal Procedure Code, section 314.

The facts in so far as they are material to the points on which the case is. reported appear from the judgment.

*Held* $(22-11-41)$ .—(1) That a second appeal can only be entertained on a point of law.

(2) A second appeal does not lie on a point of fact or of mixed fact and law.

(3) That although a second appeal lies on the ground that there was no evidence to support a finding of fact, once it is established that there was some competent evidence to support a finding of fact it is not open to the court on second appeal to go into the question of the sufficiency of that evidence or the reasonableness of the finding.

(4) That even if the court of first instance had directed itself incorrectly as to the onus on the accused (in a case of receiving stolen property) and the Court of first appeal was<br>wrong in holding that the magistrate had correctly directed himself yet if the Court of first appeal correctly directed itself and found that the story told by the appellant was not<br>reasonably creditable it would not be open to this Court to take a different view.

Appeal dismissed—section 314, Tanganyika Criminal Procedure Code, distinguished from section 4 of the Criminal Appeal Act, 1907.

Vellani for the appellant. $\cdot$

Kingsley, Crown Counsel, for the Crown.

\* JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The appellant in this case was convicted by the second class subordinate court at Lindi of the offence of knowingly receiving stolen property under section 295 of the Tanganyika Penal Code and sentenced to six months imprisonment with hard labour. His appeal to the High Court against this conviction and sentence was dismissed and he has now appealed to this Court against that decision.

The main ground of objection raised in the petition of appeal was that if the evidence in the case were properly assessed there was no evidence at all to support the conviction. In support of this view Mr. Vellani, for the appellant, argued (i) that the really incriminating evidence in the case, that of the thieves Bakari Issa and Juma Mohamed, being the evidence of accomplices, required corroboration and (ii) that the corroboration found by the trial court and first appellate Court in the evidence of Ali Abdullah, Mohamed Abdullah and Alimohamed Osman was not in fact corroboration because the first two were them-

\* Sir Norman Whitley, C. J., did not sign this judgment.

selves accomplices (whose evidence could therefore in no circumstances corroborate anything) and the last did not give any evidence necessarily inculpating the appellant.

١. As regards this ground, which we agree raises a matter of law proper for decision by this Court, namely, the submission that the finding in fact has no evidence to support it (see dictum of Lord Dunedin in Cababe v. Walton-on-Thames Urban Council, (1914) A. C. 102 at p. 114), we have come to the conclusion that the evidence of both Ali and Mohamed was competent evidence (for what it was worth) since neither was in our opinion an accomplice; and that the evidence of Alimohamed Osman was at least capable of being taken into consideration as confirmation of the thief Bakari's story that it was only a few days before the theft that the accused had been in need of and sought to purchase a radiator similar to the stolen one, and not several months before as accused alleged.

There was therefore some competent evidence before the trial court and the first appellate Court and accordingly Mr. Vellani's first and main objection to the conviction must fail.

The views of the Court on this point having been communicated to Mr. Vellani during the course of the hearing he then embarked on his other argument that even though there was some evidence before the courts the finding of guilty was unreasonable in view of the unsatisfactory nature of that evidence. He has argued strenuously that this is a matter of law which can properly be raised on a second appeal.

It is provided by section 314 of the Criminal Procedure Code:—

"Any person aggrieved by a decision of the High Court in its appellate jurisdiction under this Part may appeal to the Court of Appeal for Eastern Africa on a matter of law (not including severity of sentence) but not on a matter of fact."

A second appeal appears therefore to lie on a matter of law only. In cases of this kind counsel invariably endeavour to show that what appears at first sight to be a question of fact is, when the record is examined, a question of law, and this case has been no exception. Mr. Vellani has pointed to the fact that the caption "Verdict unreasonable" at p. 333 of Archbold, 30th Ed., appears to fall under the general heading "Questions of Law" (p. 329), and has argued that<br>this is authority for saying that where the question is whether the decision on the evidence is unreasonable, the matter is regarded in the English courts as being one of law. But an examination of the cases cited under that caption and a reference to section 4 of the Criminal Appeal Act, 1907, will show that on the rare occasions when the Court of Criminal Appeal interferes with a verdict on the ground that it is unreasonable they do so when it is clearly and palpably wrong and, what is most important, they do so by virtue of the express powers vested in them by the section to interfere with findings of fact. The section in so far as it is material provides: "The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal". (We have underlined the relevant words.)

In our view the powers of this Court are more circumscribed as one would expect to be the case on second appeal. We are satisfied, on the interpretation of section 314 of the Code, that once it is established that there is some competent

evidence it is not open to us on second appeal to go into the question of the sufficiency of such evidence as there is and to reverse the decision of the trial court, which has been upheld by the first appellate Court, on the ground that the evidence is of an unsatisfactory nature or is insufficient to support the findings of fact, or that on it we ourselves would have come to a different decision. Were we dealing with the case on first appeal the position would, of course, be quite different and we should be entitled to go into the evidence and differ from a finding of fact by the trial court. In the present case both the trial court and the first appellate Court considered that there was a case for the accused to answer. The accused gave evidence and called witnesses and the magistrate said "I reject the story of the defence, it does not ring true". He does not in rejecting the story say in so many words that the story could not reasonably be true, but the first appellate Court inferred that he did so find in effect and held that on the evidence such a finding was justified. On the last page of the judgment of that Court the learned Chief Justice said "Looking at the evidence as a whole. I am of opinion that the appellant's conduct was not consistent with innocence and that the magistrate was right in holding that the explanation which he gave was not one which might reasonably be true".

But even supposing that the magistrate had incorrectly directed himself as to the extent of the onus on the accused and that the High Court on first appeal was wrong in holding that the magistrate had correctly directed himself what would the position then be? In our opinion inasmuch as the learned Chief Justice correctly directed himself on the point and, having done so, found on competent evidence that the story told by the accused was not a reasonably credible one, it would not be open to this Court, whatever we might think; to take a differentview. There being evidence on the record, it was for the High Court sitting in first appeal to consider this evidence and assess its sufficiency and make a finding as to the facts, agreeing or disagreeing with the finding of the trial court. Once it has made a finding on the facts that matter is concluded in so far as the Courts are concerned, though the wrong decision of any question of law involved in the decision may be raised in this Court on second appeal under section 314 Criminal Procedure Code. On this point we want to be perfectly clear, and wish it to be understood, that such is the case irrespective of whether this Court thinks the finding of the trial court reasonable or unreasonable. The Legislature in its wisdom has not allowed an appeal to us from a finding of fact; indeed it has not even allowed an appeal on a question of mixed law and fact. (That there exists a distinction between a question of law and a question of mixed law and fact will appear on a perusal of section 332 (1), Criminal Procedure Code.) We may add that this Court has already stated in an unreported case from Tanganyika that no second appeal lies on a question of mixed law and fact. Incidentally we may remark that the question of misdirection, or rather lack of direction, with which we have dealt above was not raised in the petition of appeal or argued before us.

For the reasons we have given the appeal fails and is dismissed.