Rex v Hussein (Criminal Appeal No. 177 of 1946) [1946] EACA 46 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

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

REX, Respondent (Original Prosecutor)

## GULAM HUSSEIN, Appellant (Original Accused) Criminal Appeal No. 177 of 1946

## (Appeal from decision of H. M. Supreme Court of Kenya)

Sentence—Police statement of character after conviction—Inadmissible evidence.

After an accused had been found guilty of a offence but before sentence had been passed the prosecutor, who was a police officer, informed the Court of a confession made to him by the accused which the latter did not admit.

Held (27-8-46).—On a controversy as to the facts upon which sentence is to be based the same rules as to legal proof as in the substantive trial must apply and since a confession to a police officer is inadmissible in evidence the statement was improper.

Appeal dismissed.

Appellant absent, unrepresented.

Phillips. Crown Counsel (Kenya) for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The only point of any difficulty in this appeal against sentence is a very short one, and in the view we take of the whole case the point is of academic interest only so far as this case is concerned.

The point arises on the following statement made to the learned trial Magistrate by the prosecutor in the case, a Police Officer: $-$

"Horne, Accused 1 (the appellant) told me that he had bought all the spirit from a Banyani at Nakuru and that he was going to sell it at Sh. 4 a bottle."

This statement was made after a conviction of the appellant had been recorded but before sentence had been passed. In our opinion having regard to the whole facts of the case this statement does not appear to have influenced the Magistrate in arriving at his decision to sentence the appellant to 12 months' imprisonment with hard labour and to a fine of Sh. 2,000 or 6 months' imprisonment with hard labour.

The conviction was of being in possession of industrial alcohol (methylated spirit) contrary to Defence (Possession of Industrial Alcohol) Regulations, 1945. It appeared from the statement by the prosecuting officer, unchallenged by the appellant, that many affrays had lately been caused by methylated spirits and that there had been a recent murder due to spirit drinking. Also the appellant admitted a recent previous conviction of selling spirit to Africans for which he was fined Sh. 500. Furthermore the large quantity of the spirit found was sufficient to indicate that the possession of it was for the purpose of sale so that the substance of what the appellant admitted in the statement in question was proved *aliunde*. These facts amply justified the imposition of the sentence given to the appellant, and compared with these facts properly before the Magistrate the statement complained of was relatively unimportant. It is for that reason that we regard the question as to the admissibility of the statement complained of as one of only academic interest in this case.

The learned Judges in the first appellate Court expressed the opinion that exception could not be taken to the statement in question being considered after conviction for the purpose of sentence provided that the appellant was given an opportunity of affirming or denying it; that the appellant was—in the ordinary allocutus—given such opportunity and said simply "No more to<br>say". This was apparently treated by the learned Judges of the first appellate Court as tantamount to an admission of the statement. But this was incorrect as in his evidence in the trial the appellant in cross-examination by the same police officer had said "I did not tell you anything as to where I'd bought it. $\hat{I}$ did not tell you anything about that".

That reply by the appellant appears to suggest that some such question as "Did you tell me where you had bought it?" was put to him. If so, although the point has not been raised in this appeal we think it proper to express our opinion that that question should not have been allowed in cross-examination. In effect it would amount to an attempt to extract an admission which could not be proved in view of the prohibition contained in section 25 of the Evidence Act.

The appellant's "no more to say" in his allocutus meant no more than that he saw no reason to repeat the sworn denial he had already made.

Although as we have indicated it is not strictly necessary for the decision of this appeal we wish to make clear our opinion that it is improper for a prosecutor after conviction and before sentence to make any statement to the Court against the convict which—if challenged—he would be unable to prove by legally admissible evidence and in our view the statement in question was one which under section 25 of the Indian Evidence Act could not be proved against the appellant in the event of challenging it. It seems to us too narrow an interpretation of section 25 to say that it does not apply to proof of any matter in controversy between the Crown and the "accused person" merely because such controversial matter has to be determined after the "accused person" has been convicted but before sentence. It seems to us that on a controversy as to the facts upon which sentence is to be based the same rules as to legal proof as in the substantive trial for the offence must apply. Mr. Phillips for the Crown very properly did not press the point that once a person has been convicted he ceases to be an accused person since he has become a convicted person.

The appeal is dismissed.