Rex v Isike (Criminal Appeal 45/1935.) [1935] EACA 89 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, P., HALL, C. J. (Uganda), and WEBB, J. (Kenya).

REX, Respondent (Original Prosecutor)

MAGANGA BIN ISIKE, Appellent (Original Accused). Criminal Appeal $45/1935$ .

Criminal Law—Evidence—Identification of footprints.

Appellant absent and unrepresented.

Mathew (Crown Counsel) for the Respondent.

JUDGMENT.—The only evidence possibly connecting the appellent with the offence consisted of (1) footprints leading to and from the place where the body of Mwajuma was found, and (2) stains on the appellant's shirt.

As regards the footprints these did not actually lead to the appellant's hut, but disappeared where they met a path at some little distance from it. Apart from this the footprints were not satisfactorily identified us being those of the appellant. $_{\rm That}$ they were of the same size and that the length of stride was similar to that of the appellant proves nothing, and the method of comparison adopted by making the appellant place his foot in the tracks was useless because this would necessarily obliterate any small differences between his foot and the track if such existed, particularly where, as in the present case, the track was in soft earth. The only proper method of comparing footprints is by means of casts.

The following passage is taken from Wills' Circumstantial Evidence (6th Ed.), p. $220:$

"The Editor remembers a time when it was by no means an uncommon practice to give evidence that the shoes had been placed upon the footmarks and that the shoes when so placed fitted into the impressions. The practice was a very bad one, and was vigorously denounced in a case tried before Mr. Justice Parke, who desired the jury to reject absolutely such a method of identification; and it is safe to say that the police have by this time thoroughly learned the lesson and never bring forward such evidence. The proper method of comparison is to make the impressions of the shoes by the side and at a sufficient distance from those in question. When the character of the soil and the interval of time permit such a thing, the most satisfactory mode of proof is to dig out and preserve the original footprints; where that cannot be done casts in plaster of paris should be taken. Where neither of these methods are adopted and the identification is sought to be established merely by the police evidence, juries are apt to pay very little attention to it."

As regards the stains on the appellant's shirt the only evidence given at the trial, that of Mr. Raymond, the Government Analyst, was that he could not say if they were of human blood or not.

In the circumstances the appeal must be allowed and the conviction quashed. The accused is directed to be discharged.