Rex v Jiwa (Criminal Appeal No. 177 of 1948) [1949] EACA 24 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Graham Paul, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and THACKER, J. (Kenya)

## REX. Respondent (Original Prosecutor)

HASHAM JIWA, Appellant (Original Accused) Criminal Appeal No. 177 of 1948

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

Criminal law—Unlawfully selling intoxicating liquor to a native, Liquor Ordinance, 1934, section 39-Selling rationed foodstuffs without accepting coupons, Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, 1944, regulation 16 (1)—Failing to supply invoice at time of sale, Defence (Control of Prices) Regulations, 1945, regulation 17 (2)—Accomplices— Corroboration—Police trap—Genuine police spies not accomplices.

On 5th February, 1948, the appellant was charged before the Resident Magistrate, Nyeri, sitting at Fort Hall, on five counts setting out offences under the Liquor Ordinance, 1934, the Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, 1944, and the Defence (Control of Prices) Regulations, 1945, to which he pleaded not guilty.

The appellant was the proprietor of a shop at Fort Hall where groceries and liquor were sold. The case for the prosecution was that on 20th December, 1947, witness Simon Njeroge went to the appellant's shop and in the course of conversation the latter asked him: "Can you get a man to buy some sugar and European liquor?" Njeroge replied that he could buy them himself.

The following day Njeroge saw the appellant alone and asked him the price of a full bag of sugar. The appellant said he would want Sh. 175. Njeroge thought this price too high and went to consult one Fernandes, the District Commissioner's clerk: Fernandes reported to Mr. Cumber, the District Officer, into whose presence Njeroge was later brought. It was quite frankly admitted by Mr. Cumber and Fernandes that they then hatched a plot. It was arranged that Njeroge should carry out the proposed purchase of sugar and liquor from the appellant with the object of obtaining evidence of "black-market" practices against him. Njeroge set out with marked currency notes and purchased from the appellant 448 lb. of sugar and one bottle of Emu brandy for Sh. 350 and Sh. 23 respectively whilst Fernandes and two police *askaris* (Walter and Ambrose) stood watch close by. No evidence was led for the defence. The Resident Magistrate found there was no case for the appellant to answer on the charge of selling one bottle of Emu brandy at an excess price, but convicted him on the four remaining counts, imposing fines totalling Sh. 6,500 or 13 months' imprisonment in default.

The appellant appealed to the Supreme Court of Kenya, sitting in its appellate jurisdiction. The appeal from conviction on the fourth count of selling sugar at an excess price was allowed, but as regards the three remaining counts the appeal was dismissed. Then the appellant appealed to the Court of Appeal for Eastern Africa from convictions on counts 1, 3 and 5 (the details of which are set out in the judgment below), the main argument being that the District Officer, the clerk Fernandes, and the two police askaris (Walter and Ambrose) were all accomplices of the witness Simon Njeroge and the appellant and that their evidence required corroboration.

Held (2-2-49).-(1) That the District Officer, Fernandes, the two askaris and Njeroge, in regard to the respective parts they played in the transactions, were genuine police spies, and therefore not being accomplices did not require corroboration.

R. v. Habib Kara Vesta and others, 1 E. A. C. A. 191 cited and followed.

Id. Dictum of Lord Goddard (L. C. J.) cited.

Brannan v. Peek (1947), 2 A. E. R. 572 discussed and distinguished.

(2) That whilst the obiter dictum of the Lord Chief Justice in Brannan v. Peek was enturied to the greatest respect, the Court was unable to hold that it was sufficient ground for overruling the decision in $R$ . $\nu$ . Habib Kara Vesta, and was of opinion that it would be a mistake to consider this *dictum* except with reference to the particular facts of the case in which it occurred.

(3) That whilst there was ground for saying that it was originally the intention of witness Njeroge to carry through the transaction for his own profit, that intention completely disappeared when he heard the price the appellant proposed, and from that moment he ceased to be an accomplice, and that he became a genuine police spy before any offence had been committed by the appellant.

R. v. Mullins (1848), 3 Cox Cr. Cases 526 cited and discussed.

(4) That expediency is not a proper basis for judicial decision, but to refuse to apply the rule of practice as to corroboration of accomplices to the case of police spies is a decision on principle and not on expediency.

(Principle on which the rule of practice is based cited from Woodroffe's "Law of Evidence", 9th Ed., p. 952.)

Appeal dismissed.

Slade and Stephen for the appellant.

Todd. Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—This is an appeal from the judgment of the Supreme Court of Kenya in its appellate jurisdiction. That judgment dealt with an appeal from the Resident Magistrate, Nyeri, who had convicted the appellant. By its judgment on appeal the Supreme Court quashed the conviction and sentence on one of the four counts and dismissed the appeal as regards the other three counts. It is from that dismissal of the appeal that the appellant now appeals to this Court.

The three counts with which this Court is now concerned are:—

Count 1.—Unlawfully selling intoxicating liquor to a native contrary to section 39 of the Liquor Ordinance, No. 62 of 1934.

Count 3.—Selling rationed foodstuffs without accepting coupons contrary to section 16 (1), Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, 1944.

*Count* 5.—Failing to supply an invoice of goods sold at the time of sale contrary to regulation 17 (2), Defence (Control of Prices) Regulations, 1945, G. N. $109/45$ .

The first ground of appeal is: $-$

"The learned Judge of Appeal erred in law in holding that the witnesses Cumber (P. W. 1), Fernandes (P. W. 4) and Ambrose (P. W. 5) were not accomplices of the witnesses Simon Nieroge (P. W. 2) and the appellant (which concern all three charges).

This ground of appeal was the main subject of the able and exhaustive argument of the appellant's counsel before us, and it is convenient to deal with it first.

// The facts relevant to this ground may be shortly stated. The appellant asked the witness Njeroge if he could "get a man to buy some sugar and European liquor", and Njeroge replied that he could buy them himself. On the following morning Njeroge asked the appellant the price of one bag of sugar of 224 lb. The appellant said he would want Sh. 175. Njeroge considered this price too high and instead of going further with the transaction reported the matter to the District Officer's clerk Fernandes. As a result of this the District Officer was consulted and it was decided to set a trap for the appellant using Njeroge as the agent for the trap. This trap was carried out, Njeroge being supplied with marked currency notes for the purpose. The appellant sold and delivered sugar and a bottle of brandy to Njeroge in exchange for the marked currency notes and so the trap was sprung.

The question which has to be decided is whether in these circumstances all the parties taking part in the trap, including the District Officer, Fernandes, the two askaris who acted as witnesses and Njeroge were accomplices of the appellant in the offences charged under counts 1, 3 and 5 within the rule of practice requiring corroboration of the evidence of accomplices.

In our view it cannot be disputed on the evidence that all these parties were in regard to the respective parts they played in the transaction the subject of counts 1, 3 and 5, genuine police spies. It has been argued that Njeroge is not a police spy for the reason that at the outset he had the intention of carrying through the transaction for his own profit and without reporting it to the District Officer or the police. There is ground for saying that such was originally his intention completely disappeared when he heard the price that the appellant proposed. From that moment he ceased to be an accomplice in the ordinary sense of a man jointly committing a crime or assisting in it with the guilty intention of profit for himself, and he became a police spy. Up to that moment also be it noted the offences charged had not been committed. In our views, therefore, at all material time Njeroge was a genuine police spy.

Addressing ourselves to the question raised in the first ground on that basis we find that the question has already been decided by this Court. We refer to the case of Habib Kara Vesta and others v. Rex decided as long ago as 1934 (1 E. A. C. A., 191). The main part of the decision in that case, which was a trap case under the Dangerous Drugs Ordinance (Kenya), 1932, is clearly expressed in the headnote of the case in the following terms:-

"Held.—That, although there was no corroboration of the evidence of one Lees who, on taking it upon himself to try to suppress the drug traffic in Mombasa, induced the accused to supply a drug, yet corroboration was not necessary because his activities were those of an agent of justice and not of an accomplice, and that his motive in instigating the appellants to the commission of an offence was the capture of offenders and not the perpetration of offences. Held, therefore, on the authority of cases decided in England, India and East Africa, that a witness found to be a genuine police spy is not an accomplice, and therefore does not require corroboration. The cases establishing that principle fall into three categories which are discussed in this judgment. A spy, since his complicity extends only to the *actus reus* and not to the *mens rea*, is not truly an accomplice." $\boldsymbol{x}$

In our opinion that decision is still binding on this Court and correctly embodies the law of England on the point. We have carefully considered all the decisions put before us by the appellant's counsel but not one of them in our view overrules that 1934 decision of this Court.

The case of *Brannan v. Peek* (1947) 2 A. E. R., 572, has been much canvassed in argument before us, but the decision of the Court in that case has obviously nothing to do with the question now under consideration. The decision in that case was that a public-house was not a "public place" within the meaning of the Street Betting Act, 1906, section 14. It was a decision of the King's Bench Division on a case stated by Justices and the leading judgment was given by Lord Goddard (L. C. J.). After giving judgment as we have indicated His Lordship made the following observations: —

"There is another point of much greater public importance. The court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public-house to commit an offence. It cannot be too strongly emphasized that unless an Act of Parliament provides for such a course of conduct—and I do not think any Act of Parliament does so provide—it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow or permit detective officers or plainclothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence

for the police constable in the present case to make the bet in the publichouse as it would have been for the bookmaker to take the bet if in doing so he had committed an offence. I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone; if they do commit offences they ought also to be convicted and punished, for the order of their superior would afford no defence."

It is to be noted that the other two members of the Court concurred in the judgment of the learned Lord Chief Justice but made no comment whatever on the *obiter dictum* which we have quoted. We agree with the Supreme Court that this obiter dictum is entitled to the greatest respect, but we are unable to hold that it is sufficient ground for overruling the 1934 decision of this Court which is in our view in accordance with the English decisions.

It would, in our opinion, be a mistake to consider this dictum except with reference to the particular facts of the case in which it occurred. The facts in that case were that police constables in plain clothes visited the publichouse of the appellant and with some difficulty persuaded him to accept the bet which formed the subject of the charge. That is quite a different position from the facts of this case where in regard to the transaction charged Nieroge simply pretended to concur in the proposal of the appellant. Where a police spy himself *persuades* someone to commit an offence he may lay himself open to adverse comments from the Bench as did the police constable in *Brannan* $v$ . Peek, but there was nothing of that kind in this case.

We must also refer to the English leading case on this point Rex v. Mullins, 1848, 3 Cox's Cr. Cases, 526; the relevant part of the headnote in that case is as follows: -

"A person employed by Government to mix with conspiration" and to pretend to aid their designs for the purpose of betraying them does not require corroboration as an accomplice."

That case dealt with the criminal conspirational activities of Chartists. Two classes of witnesses were considered in that case, those who-

"joined the meetings and pretended to sympathise with the views of the conspirators in order that they might communicate their designs to Government. They joined the conspiracy for the purpose of defeating it and may be called police spies";

and those who being-

"really Chartists concurring fully in the criminal designs of the rest for a certain time until getting alarmed or from some other cause they turned upon their former associates and gave information against them. These persons may be truly called accomplices".

Appellant's counsel has argued that Njeroge, because of his original criminal intent, comes within the second category of witness specified in Mullins' case. We disagree, for the reason that Nieroge became a genuine police spy before any offence had been committed by the appellant, whereas the Chartists in Mullins' case had actually taken an active part in the criminal conspiracy before becoming police spies.

Maule, J., in the course of his summing-up in the case of Mullins said: "The Government are, no doubt, justified in employing spies, and I do not see that a person so employed deserves to be blamed if he instigates offences no further than by pretending to concur with the perpetrators. Under such circumstances they are entirely distinguished in fact and in principle from accomplices, and although their evidence is entirely for the jury to judge of, I am bound to say that they are not such persons as it is the practice to say require corroboration".

We believe that statement of the law of England to be as sound to-day as it was in 1848 and that it governs this case on the point.

It has been strongly urged by appellant's counsel that the Crown argument in this appeal is based not on principles of law but on expediency, and that expediency is a wrong basis for a judicial decision. We agree that expediency is not a proper basis for judicial decision, but to refuse to apply the rule of practice as to corroboration of accomplices to the case of police spies is a decision on principle and not on expediency. This rule is a rule of practice evolved in the Courts over a long period. It is not an arbitrary rule, but one based on principle and good reasons. In the argument in support of the appellant's case it seems to us that the principle and reasons on which the rule is based have been altogether overlooked, and that we shouldat the risk of descending to the elementary—enunciate the principle and the reasons. A very clear and accurate statement of the principle and reasons appears in Woodroffe's Law of Evidence, 9th Edition, at page 952, and we content ourselves with quoting it with approval as follows:-

"Principle.—The testimony of accomplices, who are usually interested, and nearly always infamous witnesses, is admitted from necessity, it being often impossible, without having recourse to such evidence to bring the principal offenders to justice. But the practice is to regard the statements of such persons as tainted because, from the position occupied by them their statements are not entitled to the same weight as the evidence of an independent witness. Accomplice evidence is held untrustworthy for three reasons-

- (a) because an accomplice is likely to swear falsely in order to shift the guilt from himself; - (b) because an accomplice as a participator in crime, and consequently an $(b)$ immoral person, is likely to disregard the sanction of an oath; and - (c) because he gives his evidence under promise of a pardon, or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally; and this hope would lead him to favour the prosecution."

It is clear that a genuine police spy does not come within any of the categories (a), (b) or (c) of that passage from Woodroffe and therefore a decision to exclude police spies from the operation of the rule is a decision—and we think a correct decision—on a matter of fact and principle, although it may well be that the decision may also be found expedient in dealing with the numerous classes of persons who unscrupulously and cunningly attempt to defeat the enactments which the Legislature has considered necessary to protect the public from the anti-social and nefarious activities which have given to the English language such sinister expressions as "profiteering" and "black market".

As to the other grounds of appeal we find it unnecessary to say much. Our decision on the question of accomplices cuts at the root of the second, third and fifth grounds of appeal. As regards the contents of the bottle being brandy and the contents of the bags being sugar, these were questions of fact. We are unable to hold that there was no evidence upon which the trial Magistrate could properly conclude that the bottle contained brandy and the sacks sugar, and this being a second appeal we see no reason to interfere with the concurrent findings of fact by the two Courts below.

As regards the fourth ground we agree with the Courts below that proof of the weight of the sugar alleged in charges 3 and 5 was not necessary for conviction as in these charges—the exact amount was immaterial in our view.

We find no substance in the fifth ground of appeal. In our opinion the conclusions of the Courts below as to the fifth count were quite sound having regard to $(a)$ the evidence of Njeroge, $(b)$ the large amount of sugar involved, (c) the decision in Rex v. Putland and Sorrell (1946) 1 A. E. R. 85, and (d) section 105 of the Indian Evidence Act.

In conformity with the view we have expressed the appeal is dismissed.