Rex v Kipalata (Criminal Appeal No. 195 of 1946) [1946] EACA 44 (1 January 1946)

#### COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and SIR JOHN GRAY, C. J. (Zanzibar)

# REX, Respondent (Original Prosecutor)

## KIPALATA s/o MPANGWA, Appellant (Original Appellant)

#### Criminal Appeal No. 195 of 1946

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

Criminal procedure—Accused committed for trial on charge of attempted murder -Information filed for murder-Offence of murder not disclosed by depositions—S. 240 C. P. C. (Tanganyika Territory)—Irregularity—Correct procedure -Ss. 237, 238 C. P. C. (Tanganyika Territory)-No failure of justice.

The appellant was committed for trial on a charge of attempting to murder his wife whom he had stabbed in the abdomen. About a month after appellant's committal his wife died from her injury and an information was filed charging him with the murder of his wife. In good time before the trial the appellant was served with notice of additional evidence to the effect that his wife had died of the injury he had inflicted upon her. The appellant was convicted of murder and appealed.

Held (30-10-46).—(1) That S. 240 (2) C. P. C. only empowers the Attorney General to file an information charging an accused with an offence which in the Attorney General's opinion is disclosed by the depositions and consequently the filing of an information for the<br>offence of murder which the depositions did not disclose was an irregularity in the proceedings.

(2) That the correct procedure should have been under S. 237 or 238 C. P. C. to remit the case back to the subordinate Court for the taking of the additional evidence in the presence of the accused.

(3) That since in the particular circumstances of this case the irregular procedure adopted had neither prejudiced the accused in any way nor occasioned a failure of justice it was not fatal to the conviction.

Appeal dismissed.

Cases referred to: Rex v. Thakar Singh 1 E. A. C. A. 110; Rex v. Gee (1936) 2 K. B. 442; Rex v. Phillips (1939) 1 K. B. 33.

Appellant absent, unrepresented.

Anjaria, Advocate (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—Certain facts in this case are not in dispute. Sometimes during the first week of April, 1946, the accused stabbed his wife with a knife in the abdomen and almost immediately afterwards also stabbed himself in the abdomen. Both he and his wife were subsequently taken to Njombe Hospital. On April 10th a preliminary inquiry was commenced in the Njombe District Court. The appellant was brought before that Court on a charge of attempted murder and the depositions were taken in his presence of his wife and of certain other witnesses. On April 17th he was committed for trial on a charge of attempted murder, the wife and other prosecution witnesses being bound over to give evidence at his trial.

On May 15th, 1946—nearly one month after the appellant's committal for trial—the appellant's wife died in hospital at Mbeya. The medical evidence shows that the cause of death was toxaemia from an abdominal abscess combined with advanced emaciation incident upon the unwillingess of the deceased to undergo full treatment. The abscess was caused by the wound in the abdomen and the toxaemia was the result of the abscess. The medical witness says the deceased would not eat or take nourishment because she wanted to return to her home and the toxaemia could have been overcome if she had taken food. Although the deceased's refusal to take food contributed to her death, the appellant must by reason of section 203 (e) of the Penal Code be deemed to have caused her death.

On July 1st, 1946, an information was filed in the High Court charging the appellant with the murder of his wife. On July 26th and 29th the prosecution served upon the appellant notice of intention to call two additional witnesses. These witnesses were an African nurse and a medical officer. This latter had attended the deceased in hospital and had held a post mortem examination upon her after her death. Without the evidence of these two witnesses a conviction for murder or manslaughter clearly could not have been obtained. The two notices purported to be given under section 273 of the Criminal Procedure Code and complied in form with the provisions of that section.

The trial took place on July 30th, 1946. Evidence was given by four witnesses, who had given evidence at the preliminary inquiry, and by the two additional witnesses just mentioned. The doctor had returned from leave only after the commencement of the sessions and the learned trial Judge held that, though short, there was in the circumstances "reasonable notice" within the meaning to be ascribed to those words in section 273 of the Criminal Procedure Code and we see no reason to differ from his ruling. The appellant, who was not legally<br>represented, gave evidence upon affirmation. He admitted to stabbing his wife in the abdomen but alleged certain matters in extenuation of his act. The learned trial Judge on July 31st delivered a judgment, in which he carefully reviewed the evidence and considered every defence which might conceivably be open to the appellant. He found that there was no evidence of provocation or of intoxication sufficient to reduce the charge to one of manslaughter. He accordingly convicted the appellant of murder and sentenced him to death.

This trial was a most careful one and the only doubt which has occurred to our minds is as to what is the legal effect of a trial upon an information charging an offence which is not disclosed by the depositions.

In filing an information for murder, the Solicitor General would appear to have been relying upon the decision of this Court in Rex v. Thakar Singh (1934) 1 E. A. C. A. 110, but as Mr. Anjaria, appearing on behalf of the Crown, has very fairly pointed out, since that decision the relevant sections of the Criminal Procedure Code have been altered by amending Ordinances Nos. 24 of 1939 and 5 of 1945. In view of these later amendments *Thakar Singh's* case can no longer be regarded as giving a correct statement of the existing law.

The relevant law, as it at present stands, is to be found in sections 237, 238 and 240 of the revised Criminal Procedure Code.

Section 240 (1) empowers the Attorney General to file an information after receipt of an authenticated copy of the depositions. Section 240 (2) enacts that: -

"In such information the Attorney General may charge the accused person with any offences which in his opinion are disclosed by the depositions either in addition to, or in substitution for, the offences upon which the accused person has been committed for trial."

It is to be noted that the information can only charge an offence which in the opinion of the Attorney General (or Solicitor General) or Crown Counsel duly authorized by him in that behalf under section 82 of the Code) is "disclosed by the depositions". Here, the depositions did not disclose the death of the appellant's wife and therefore it cannot be contended that in the opinion of a Crown Law Officer they disclosed the offence of murder.

In the circumstances the correct procedure to have followed was either that under section 237 or else that under section 238 of the Code. The case should have been remitted to the subordinate court for the taking of the depositions of the essential witnesses by that Court in the presence of the accused person.

As in the cases of R. v. Gee (1936) 2 K. B. 442 and R. v. Phillips (1939) 1 K. B. 33 show, the omission at the preliminary inquiry to take depositions of witnesses in the presence of the accused may render all subsequent proceedings a mis-trial and consequently be a ground for quashing a conviction. But the cases of Gee and Phillips appear to us to be clearly distinguishable from the present one. In those cases none of the depositions in regard to certain counts were taken in the presence of certain of the accused persons and this omission was held to have been so prejudicial to the accused persons concerned as to have caused a miscarriage of justice. Here, the conviction of the appellant depends partly upon the evidence of certain witnesses, who gave evidence in his presence at the preliminary inquiry, and partly upon additional evidence, of which he received notice in the manner prescribed in section 273 of the Code. The question here is whether this latter procedure is an irregularity which has in fact occasioned a failure of justice.

As section 245 of the Code shows, an information which has been drawn up in pursuance of section 240 is "as valid and effectual in all respects as an indictment in England which has been signed by the proper officer of the court in accordance with the Act entitled the Administration of Justice (Miscellaneous Provisions) Act, 1933". As section 1 (1) of that Act shows, where a bill of indictment has been signed in accordance with the provisions of the Act, it shall be proceeded with in the same manner as it would have been proceeded with before the commencement of the Act if it had been found by a grand jury. The first proviso to section 2 $(2)$ allows the preferment of an indictment against an accused person containing "any counts founded on facts or evidence disclosed in any examination or deposition taken before a justice of the peace in his presence". Section 2 $(3)$ of the same Act enacts that "if a bill of indictment preferred otherwise than in accordance with the provisions of the last foregoing section has been signed by the proper officer of the court, it shall be liable to be quashed". It is to be noted that the relevant words are "shall be liable to be quashed" and not "shall be quashed". Furthermore, the second proviso to the sub-section sets out a condition precedent to the quashing of the indictment by an appellate court. That proviso reads as follows:-

"Where a person who has been committed for trial is convicted on any indictment or any count of an indictment, that indictment or count shall not be quashed under this sub-section in any proceedings on appeal, unless application was made at the trial that it should be quashed."

Here, the information was liable to be quashed but no objection was taken thereto at the trial. Nevertheless, the omission—and in particular the omission by an accused person who was not legally represented—to take objection to an information does not exonerate an appellate court from its duty under section 346 of the Criminal Procedure Code of considering whether, notwithstanding such omission on his part, some irregularity with regard to such information was of such a nature as to have so far prejudiced the accused person that it has in fact occasioned a failure of justice,

Here, the appellant was served on July 13th, 1946—seventeen days before his trial—with notice of trial on an information charging him with the murder of his wife. Before the trial he was served in accordance with the provisions of section 273 of the Criminal Procedure Code with notice of the prosecution's intention to call additional witnesses. The substance of the evidence which each witness intended to give was contained in each notice and was to the effect that the appellant's wife had died as the result of a wound of the same nature as that which, according to the evidence given by eyewitnesses at the preliminary inquiry, had been inflicted upon her by the appellant. The defence to the charge of murder was confined to the circumstances in which the fatal blow was struck. The cause of the woman's death was not in dispute. The appellant never denied that he stabbed his wife. His only defence to the charge of murder was that there were circumstances of extenuation which ought to reduce the charge to manslaughter. It is therefore impossible to hold that the procedure adopted has in any way prejudiced him or has occasioned a failure of justice.

With regard to the facts of the case the learned trial Judge has in his judgment carefully considered every defence which might conceivably have been open to the appellant and has rightly rejected them. This appeal is therefore dismissed.