Rex v Saite (Cr.A. 87/1934.) [1937] EACA 171 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Befoe LUCIE-SMITH, Ag. C. J., HORNE, J., and GAMBLE, Ag. J. (all of Kenya).

## REN (Respondent) (Original Prosecutor) $\overline{v}.$

## SAITE (Appellant) (Original Accused). Cr. A. $87/1934$ .

- Nyasaland Criminal Procedure Code, section 202—Trial for Murder held before District Magistrate and Assessors-Procedure-Record to be sent before judgment to Attorney-General who forwards the record with his views to the Judge -Powers of Judge on receiving record-Power to direct the trial Magistrate to enter finding of "guilty" or "not guilty" -Whether Judge has power to direct further evidence to be called—Sections 140 and 247—Rule in case of $Rex\ v$ . Harris, 20 Criminal Appeal Reports, p. 86. - Held (11-8-34).—That the Judge has no power to direct further evidence at all; but that as, in this case, apart from any inadmissible evidence, there was sufficient evidence to support the conviction, the appeal should be dismissed.

Appellant absent, unrepresented.

Bruce (Solicitor-General, Kenya) for Crown.

JUGDMENT.-The appellant, Saite, was on 16th April, 1934, sentenced to death by the District Magistrate, at Zomba, for the murder of Akunyaika alias Akundambiche.

The memorandum of appeal states that the appellant did not kill the woman Okulado or (Akundambiche) and in view of the Magistrate's finding of fact there would appear to be no merits in the appeal. During the hearing of the appeal, however, an important point arose respecting the practise in Nyasaland under section 202 of the Criminal Procedure Code.

Section 202 provides in sub-section $(1)$ , that the trial shall be with assessors and in the manner prescribed for the trial of such offences in the High Court. An information, with notice of trial, and formal arraignment are therefore necessary. Subsection (3) supports that view because it provides that the Attorney-General may enter a nolle prosequi and a nolle prosequi can only be entered after an information is filed.

In this case there was no information, perhaps because there was no preliminary inquiry. Sub-section 1 does not specifically state that the case is to be inquired into prior to trial. Evidently

. W.

it was intended that an information should be filed in much the same manner as an indictment may sometimes be found by the grand jury in England, i.e., without a preliminary inquiry.

The second sub-section provides that, after the trial hasreached the stage of summing up and obtaining the opinion of the assessors, judgment is not to be given or sentence passed, but that the record is to be forwarded to the Attorney-General with the conclusions the trial Magistrate has arrived at and stating the sentence he considers just.

The third sub-section gives powers to the Attorney-General which are in extension of the powers of the Crown in a trial before the High Court and after providing for the entry of a nolle prosequi. already referred to, it empowers the Attorney-General to direct that further evidence be taken—although at this stage the case for the defence has been closed—and with or without such further evidence that the case may be transferred to the High Court for trial. The latter provision gives the Attorney-General the power to treat the proceedings so far, as a preliminary inquiry, although the accused has embarked upon a defence and has called his witnesses.

Under the 4th sub-section the Attorney-General after exercising, if necessary, his power to direct further evidence, and being of opinion that the case may be retained by the Subordinate Court and that the record justifies a verdict, may then transmit the record to the High Court with a memorandum setting forth his own conclusions.

The 5th sub-section is important and we state it in extenso.

"(5) The Judge of the High Court shall therefrom give such directions as he considers necessary and, if satisfied that the evidence so permits, shall direct the Magistrate to enter a finding of "not guilty" and to discharge the accused from custody, or to enter a finding of 'guilty' and pass sentence accordingly, and every such sentence shall be subject to confirmation by the Judge."

In our opinion the first part of this section gives the Judge no other power than to direct which of the two verdicts shall be entered. In this case the Attorney-General under sub-section (4) closed the case by transmitting the record and his memorandum to the Judge. Thereupon the Judge gave directions to the Subordinate Court to call further evidence. We are informed by the learned Solicitor-General (Kenya) appearing for the Attorney-General, Nyasaland, that the 5th sub-section has hitherto been interpreted as permitting the Judge to give such a direction. But in the face of the express provisions viz:—that the trial shall be in the manner prescribed for such trials by the High Court and that the Attorney-General may direct further evidence, we

are of opinion that such an extensive interpretation is not warranted by the words of the sub-section, is undesirable and may work injustice to the accused.

We are not disregarding section 140, Cr. P. Code, which gives a Court power to examine a person present in Court not summoned as a witness and to recall witnesses already examined. "at any stage of the proceeding" "if his evidence appears to it essential to the just decision of the case". But where the trial of a person for murder or manslaughter is provided to be in the manner prescribed for trial of like offences by the High Court. then section 247 must be applied, and even were it possible for this Court to accept the interpretation of sub-section 5 suggested by the Crown, such an interpretation would not prevent the application of the English rule of practice laid down in $\text{Re}x$ v. Harris, 20 Cr. Appeal Reports, 86.

That rule is that neither the prosecution nor the trial Judgeshall call evidence after the close of the case for the defence except in reply or rebuttal to matter raised by the defence $ex$ improviso, which matter raised unexpectedly by the defence nohuman ingenuity could foresee.

A part of that rule has been abrogated by the 3rd sub-section giving the Attorney-General power to direct further evidence. The matter having been specifically provided for in this way, we are of opinion that the Judge, under the 5th sub-section, has no power to direct further evidence at all.

In the present case not only has the Judge directed further evidence but we have to point out that if such evidence had been directed by the Attorney-General, it appears nevertheless to have been taken in a manner contrary to the provisions of the first subsection. Because so far as the record shows, neither were the assessors asked their opinion upon it, nor was the accused given any opportunity to call evidence in reply to it. These points are not of importance in the present case as the evidence, being called by the Judge, was entirely inadmissible. His functions under the 5th sub-section were to direct a verdict and after sentence (if any) exercise his powers in confirmation.

It now remains to consider whether, if the inadmissible evidence is expunged from the record, there is sufficient evidence to support the conviction. (The Court then proceeded to deal with the evidence and found that there was sufficient evidence. apart from the inadmissible evidence, and dismissed the appeal.)

The second witness states that he attended an inquest on. the woman Akundambiche.

Beaton, the third witness, stated he knew the woman Akunyaika (another name for her).

Jackson, the fifth witness, states he saw the dead woman Akundambiche and that she'had a deep wound in the forehead and he brought her to hospital; and that the accused called upon him to arrest Beaton whom he accused of wounding the woman.

Singano, the seventh witness, Akundambiche's husband, desscribes how the accused threw the axe at Beaton "and struck my wife Akundambiche on the forehead". In cross-examination this witness was asked by the accused "When I threw the axe and struck your wife what did I say" Answer you said, "Beaton you are the cheater of wives" or words like that.

The eighth witness, Asekeni, states "I knew Abundambiche." She was my grandchild. Since her death Saiti (accused) has not been back to our village."

Store, the ninth witness, after describing the quarrel and the throwing of the axe by the accused at Beaton who ducked says: "It went past him and struck Akundambiche above the eye" I helped to bring her to hospital. I left here there alive and was at the hospital when she died.

The accused, in giving evidence, admitted in cross-examination that he had made two previous statements accusing (a) Beaton and $(b)$ Singano of injuring the woman and that he went with others to help to take the woman to the hospital.

The evidence of Dr. Blackaby, Singano and Store is linked together by the description of the wound. Singano is the brother of the accused and the deceased was Singano's wife. And when the relationship, the description of the wound, the carrying to hospital, the death in hospital and the inquest as stated by the various witnesses are all taken into consideration the cumulative effect is such as to leave no reasonable doubt that the woman, Akunvaika alias Akundambiche, died on the 20th September, 1931, as a result of the accused's actions.

Accordingly, we are of opinion that there is ample evidence to support the conviction and the appeal is dismissed.