Rex v Mohamed (Cr. App. 108/1933.) [1933] EACJ 7 (1 January 1933)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Tanganyika), JOHNSON, Ag. C. J. (Zanzibar), and KNIGHT-BRUCE, Ag. J. (Zanzibar).

## REX (Respondent) 3).

## HAJI MOHAMED SALEH MOHAMED (Appellant). Cr. App. 108/1933.

Evidence Act. section 114, Illustration $(b)$ —Accomplice evidence $-Corroboration.$

Held (11-9-33).—There should be material corroboration of the evidence of an accomplice to justify a conviction. Rex v. Ali bin Fazal, 2 E. A. L. R. 55, followed.

Doorly, Attorney General, Zanzibar, for Crown.

Appellant absent, unrepresented.

Doorly.—It is not good law to say a conviction cannot in any circumstances be had on accomplice evidence (section 133, Evidence Act).

The trial Magistrate relied on the evidence of the children, one of whom was very intelligent. He carefully warned himself as a jury of the danger of accepting uncorroborated evidence of accomplices. There is nothing on the record of the trial to show that the accomplices had been convicted and punished.

The Court referred to Reg. v. Robinson and Another, 176 E. R. 459.

Agreed that there were no exceptional circumstances in this case to justify a departure from the general rules as to accomplice's evidence. Rex v. Beebe, 19 Cr. App. R. 22. It is not a general rule of law, however, that an accomplice must be confirmed.

JUDGMENT.—The learned Resident Magistrate at Mombasa convicted the appellant of receiving a motor car inner tube knowing it to have been stolen, under section 295 (1), Penal Code; he convicted on uncorroborated accomplice evidence, but not before he had warned himself of the danger of doing so. An appeal was lodged against the conviction, and the Supreme Court (Sir Jacob Barth, C. J., and Lucie-Smith, J.) affirmed the conviction. The ground of appeal before the Lower Appellate Court and this Court is contained in the second paragraph of the memorandum of appeal reading: "The learned Judges of the Lower Appellate Court erred in law in holding the conviction of the appellant in utter disregard of the admitted rule of practice, almost amounting to a rule of law, that it is unsafe to convict a person on the uncorroborated testimony of accomplices." That there is such a rule of practice where cases are tried by Judges and Magistrates sitting without a jury in East Africa is within the personal knowledge of the Members of this Court, and this rule is to be found in reported cases in Kenya which, had they been known by or brought to the knowledge of the learned Magistrate, should have resulted in the acquittal of the appellant, being bound as he is by those decisions of a superior Court.

In the case of Rex v. Ali bin Fazal, 2 E. A. L. R. p. 85, it was held by Hamilton, J., at p. 56, referring to the danger of acting on accomplice evidence: "A conviction on this evidence is not illegal, but the danger in such cases of convicting an accused person has always been recognized as so great that as a general rule a conviction is not held in the absence of overwhelming corroboration." While we do not subscribe to the dictum that the corroboration must be overwhelming to sustain a conviction. our opinion is that in the absence of special or exceptional circumstances a conviction before a Judge or a Magistrate sitting alone, resting on uncorroborated accomplice evidence, is so dangerous that it should not be held.

In Jasha bin Bwana and Others v. Rex, 3 E. A. L. R. p. 92, it was held by Hamilton and Barth, J. J., at p. 94, that the evidence of accomplices needed corroboration before a conviction could be had, and the appeal was allowed. In Abdulla Mohamed and Another v. Rex, 3 E. A. L. R. p. 99 at pages 100 and 101, it was decided: "I do not say that the facts may not have been as the Magistrate believed them to be, but it is a sound rule of law not to convict on tainted evidence of this nature without some solid corroboration." The case was heard before Hamilton, and Barth, J. J.

The above quoted cases establish that the learned Magistrate should have acquitted the appellant. The case, however, was taken on appeal to the Supreme Court and the decision affirmed. It is apparent, however, from the record that the cases to which we have referred were not cited.

The question arises whether we should follow those cases or disapprove of them by affirming the decision under appeal.

We find that the point came before this Court in Kichingeri and Others v. Rex, 3 E. A. L. R. p. 1, in which it was held: "That certain natives having publicly assisted in putting a suspected witch-doctor to death according to tribal custom, thinking they were concerned in a legal and meritorious action, that evidence was not tainted in the same manner as that of an ordinary accomplice in a crime, whose evidence must be considered of little weight from the circumstances in which it is given, and therefore in the particular case a conviction could stund in such case without corroboration, its character and the absence of corroborative evidence having been duly considered by the trying Judge." In the course of the judgment of the Court of Appeal at page 5, the learned Judges expressed themselves: "But we desire to state that we have arrived at this decision entirely on account of the exceptional circumstances of this particular case." In the case before us, it has been fairly and rightly conceded by the learned Attorney General that there are no exceptional circumstances which would justify a departure from the rule acted upon for a considerable time by different Courts in East Africa, and approved by this Court in the case to which we have referred, and for this reason the appeal will be allowed, and the appellant directed to be set at liberty.