Rex v Kadongo (Cr. App. No. 51/1936.) [1936] EACA 51 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika); and GAMBLE, J. (Uganda).

## REX, Respondent (Original Prosecutor)

## ABDULLAH WANEIBUGE s/o KADONGO, Appellant Cr. App. No. 51/1936. (Original Accused).

Criminal Procedure—Duty of prosecution with regard to witnesses -Not bound to call every witness who has made a deposition but only to have them in attendance.

Held (6-5-36).—That prosecuting counsel is not bound to call all the witnesses who have made depositions: he is a minister of public justice and is only called upon to lay before the Court such facts as he thinks the interests of justice demand. His duty is satisfied<br>if he has in attendance such witnesses as he does not call, so that they can be called by the defence if desired. (R. v. Edwards and others (3 Cox C. C. 82), R. v. Woodhead (2 Car. & Kir. 520) and<br>R. v. Cassidy (1 F. & F. 79) followed).

$Appellant$ in person.

Mathew, Ag. S. G., for the Crown.

JUDGMENT, (delivered by SIR JOSEPH SHERIDAN, C. J.).-The appellant was charged with and convicted of having murdered a man by name Katikiro. He said before the Magistrate that he could not tell whether he killed Katikiro or not for the reason that he was very drunk at the time. The death of Katikiro occurred in the course of or shortly after a 'beer drink' held at the house of the witness, Kelefani, at which a number of people including the appellant attended and at which beer was supplied in exchange for cotton. It would appear that the appellant made himself objectionable, demanding back his cotton on the ground that there was an insufficiency of beer. A fight broke out and immediately, as the learned Judge found, a number of people including the deceased, Katikiro left the house. The order of leaving was found to be as follows: - Masai in front followed by Kiruji who in turn was followed by Asumani with the deceased bringing up the rear. The evidence for the Crown was that shortly after their departure the appellant carrying a heavy wooden pestle left. Kelefani's and that after that Asumani heard a noise of someone falling and on looking round saw Katikiro lying on the ground with the appellant standing close by holding the pestle, that thereupon Asumani exclaimed to his companions. "our friend has been killed by Abdullah". Katikiro was found

to be dead and his body was taken to the hospital at Tororo by his nephew, Seregi, and identified by him to the doctor. The doctor gave evidence that in his opinion death was caused by a heavy rounded stick applied with violence. The case is somewhat unusual for the reason that a witness, Mariamu, who gave evidence before the Magistrate and was submitted for crossexamination at the trial, neither being examined nor re-examined by counsel for the Crown, stated that her husband Jafali not only admitted to her that "I have beaten a big man and I think he is dead" but that she herself saw Jafali strike Katikiro. As to the appearance of Mariamu as a witness called before the close of the case for the prosecution we shall have something to say later. The learned Judge carefully scrutinized the evidence given by the witness Mariamu and said "I was by no means impressed with ther demeanour in the witness-box; indeed at one stage of her evidence I found it necessary to warn her. I therefore have no hesitation in ignoring her evidence entirely". This witness said that she, Jafali and Katikiro left the party together and that on the way she saw Jafali strike Katikiro and that later Jafali told her that he did not know if Katikiro whom he had struck would die. According to the other witnesses Jafali and Mariamu left Kelefani's house before the fighting began—and they left alone, and Katikiro left after the outbreak of the fighting with those already mentioned and in the order stated. In rejecting the evidence of Mariamu and accepting the evidence of Asumani, corroborated as it was by the evidence of other witnesses as to the time and order of leaving Kelefani's, the learned trial Judge was in a better position to judge than the members of this Court. It was particularly his province to weigh the evidence and reach a decision as to who was speaking the truth. We should not be justified in disturbing this finding of fact for which adequate reasons have been given. Against any suggestion that there was a conflict in the case put forward by the Crown, based on the evidence of Mariamu, our opinion is that Mariamu was not a Crown witness. Because she gave evidence before the Magistrate it would appear that Counsel for the Crown considered that he was bound to submit her for cross-examination. In our view he was not so bound and we shall presently refer to authority on this question of practice. The duty of the Crown ended with their having Mariamu in attendance to be called by the defence, if so desired. By submitting Mariamu for cross-examination before the close of the Crown case, the defence was placed in a more favourable position than if they had called Mariamu as a witness, for they were enabled to put leading questions to her which they could not have done otherwise. The Crown being under a misapprehension as to their duty regarding Mariamu did more than they were obliged to do. They never, it is clear, relied upon her evidence, neither examined nor re-examined, and in his concluding address counsel for the Crown asked that her

evidence should not be believed. As for the authorities on this question there are the following cases (a) $R$ , $v$ . Edwards and others. (3 Cox 82) in which Mr. Justice Erle (as he then was) said "My own impresson is clear, and I believe a majority of Judges have distinctly decided, that the counsel for the prosecution is not bound to call all the witnesses at the back of the bill. He is a minister of public justice, and is called upon to lay such facts before the jury as he thinks the interests of justice demand. I recollect a remarkable case of murder $(R v. \text{ } Belaney)$ in which I was counsel for the prisoner, in prosecuting which three or four witnesses who had been before the grand jury were not called. It was most material for the prisoner that he should not be obliged to call them, but the learned Judge who tried the case resisted every effort I made to induce him to interfere with the discretion of the prosecuting counsel; and in the end I was compelled to make them my witnesses". On being pressed by Sergeant Parry the learned Judge proceeded "There are no doubt cases in which a judge might think it a matter of justice so to interfere; but generally speaking we ought to be careful not to. over-rule the discretion of counsel, who are, of course, more fully aware of the facts of the case than we can be". (b) $R. v.$ Woodhead (2 Car. and Kir. 520) in which Alderson B said "You are aware. I presume, of the rule which the Judges have lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment. The. witnesses, however, should be here because the prisoner might otherwise be misled; he might from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself. You ought therefore to have them in Court, but they are to be called by the party who wants their evidence. This is the only sensible rule". (c) $R$ . v. Cassidy (1 F and F. 79), the headnote to which reads, "Counsel for the prosecution is not bound to call all the witnesses on the back of an indictment. He may use his own discretion, but must have the witnesses in attendance. If the prisoner wishes to have a witness called, when not called for the prosecution, the witness becomes his witness, and the counsel for the prosecution will have the right to reply." This case was tried before Parke B., who followed the course pursued by Campbell C. J. and arrived at his decision after consulting Cresswell J. who said that he always allowed the prosecutor to take his own course in such circumstances, without compelling him to call the witness if he did not think fit to do so, and that he entirely agreed with what Parke B. proposed to do.

The appeal will be dismissed.