Rex v Moita and Another (Con. C. 5/1933.) [1933] EACA 22 (1 January 1933)

## CRIMINAL CONFIRMATION.

## Before THOMAS, J., and GAMBLE, Ag. J.

### REX

# $\boldsymbol{v}$ . MANGATINDA OLE DUSIAT alias CHACHA S/O MOITA.

#### Con. C. $5/1933$ .

- Penal Code, section 295-Onus of proof of receiving stolen property. - *Held* (25-3-33).—That when the case for the prosecution has been closed further evidence should not be called by the Court nor by the Magistrate unless any matter arises $ex$ improviso. Rex v. Harris, 20 Cr. App. R. p. 86

A. D. A. MacGregor, K. C., Attorney General, for Crown.

MacGregor.—There was substantial misdirection in that the Magistrate expressly referred in his judgment to inadmissible hearsay evidence. Additional evidence was called by the Magistrate to strengthen what was a weak case. Witnesses were called after the defence evidence was closed, which is an irregularity, unless called in rebuttal.

THOMAS, J.—The accused was charged with receiving thirteen head of cattle, the property of Pioli s/o Mirango, knowing the same to have been stolen—section $295$ (1), Penal Code.

The complainant, Pioli s/o Mirango, stated that 13 head of cattle had been stolen from his boma less than a year ago. Subsequently, he had seen 10 of these cattle at Chief Ololdigir's boma.

Ololdigir called the accused, and the accused (whether in the presence of Ololdigir or not is not clear) stated that they had been brought by three Watende, and that the accused, knowing that they were stolen, had agreed to keep them until other Watende came and exchanged them.

Ololdigir gave a different version of the explanation of the accused, viz. that the accused said that he had seen the cattle with three Watende, who had run away, and that he (the accused) did not know the Watende.

That is the explanation given by the accused at the trial.

Now Ololdigir asserts that he found the cattle in the boma of the accused, and inquired why no report had been made to him. He says that the accused admitted to him that he had had the cattle for twenty days. Ololdigir reported the matter to the District Officer, and took the accused with him.

The accused says that as soon as Ololdigir returned he reported to him, and that Ololdigir told him to await the arrival of the District Commissioner to collect tax. When the District Commissioner came he went with Ololdigir and informed him.

The accused called his sister, Nalangu d/o Eldusiat, who supported him.

In view of this evidence there would seem to be no sufficient reason for discarding the evidence for the defence.

The Magistrate in his judgment dwells on the statement alleged to have been made to the complainant. But he does not seem to have considered what possible object the accused could have in telling one story which incriminated himself to the complainant and another which exculpated himself to Ololdigir.

Moreover, since Ololdigir had called the accused, it would seem excedingly unlikely that he would not be present when the accused was speaking with the complainant, yet he does not say anything as to a variation of the explanation of the accused.

The Magistrate seems to have had some difficulty in deciding whether to accept the case for the prosecution or that for the defence. Then he decided to call two witnesses, and the evidence given by them considerably affected his mind and his decision.

Was the Magistrate justified in calling those two witnesses?

In the case of Rex v. Harris, 20 Cr. App. Cases p. 86, Avory, J., says: "It is clear from the cases that only in a criminal case may the judge call a witness at all, but in no case is there a definite rule at what stage he may do so. But it is obvious that injustice may be done to a defendant unless some limitation is put on the power, and for this case we adopt the words of Tindal, C. J. (cited Sullivan (above) from Frost, 4 St. Tr. N. S. 86, 386; 1839)." When the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit or a prisoner in a criminal case, there seems to me no reason what that matter which so arose cx improviso may not be answered by contrary evidence on the part of the Crown. That passage only applies to the Crown, but it should also apply to the Judge who calls a witness, i.e. after the close of the case for the defence fresh evidence is limited to something arising ex improviso.

The accused speaks of going with Ololdigir to the District Commissioner.

Ololdigir says that he took the accused with him. It would seem to have been the same occasion.

The Magistrate saw fit to call two witnesses, the one to say that the accused was not present on some occasion when Ololdigir went to Narok; the other to say that the accused did not speak to Mr. Bailward, the District Commissioner, when he came to Kilgoni. This last witness may not have seen the accused, but in face of the evidence of Ololdigir and of the accused, it would seem to have little value anyhow.

Still, because witnesses give evidence of little value, that is no justification for their being called, and in this case they should not have been called.

But the Magistrate did not regard the evidence of Narget ole Morumbe as of little value; he seemed to have considered that he supported Ololdigir.

Rejecting this additional evidence, which should not have been called, I consider that the case for the prosecution has been fully met by the defence, and that therefore the accused is entitled to be acquitted.

The conviction is quashed, the accused is acquitted and is ordered to be set at liberty in respect of this conviction.

GAMBLE, Ag. J.-I concur, and would only add that, apart from the fact that Narget ole Morumbe should not have been called after the defence was closed, it would appear from the record that the evidence of this witness was hearsay and inadmissible. The Magistrate, as appears from his judgment, has clearly been influenced by this inadmissible evidence, and therefore the conviction cannot stand.