Rex v Singh and Others (Cr. Apps. Nos. 93, 94 and 95 of 1939) [1939] EACA 145 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and SIR CHARLES LAW, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

ν.

## SUKHA SINGH s/o WAZIR SINGH DHANA SINGH s/o SUNDER SINGH SOHAN SINGH s/o MANGAL SINGH Appellants (Original Accused Nos. 1, 2 and 3)

## Cr. Apps. Nos. 93, 94 and 95 of 1939

(Appeal from decision of H. M. Supreme Court of Kenya) Criminal Law—Direction as to failure to disclose alibi before trial.

In a prosecution for wounding with intent to cause grievous harm two co-accused put forward alibi defences at their trial over six months after the date of the alleged assault. The trial Judge in directing the assessors commented on the fact that the alibis had been put forward for the first time at the trial and said: "If a person is accused of anything and his defence is an alibi he should bring forward that alibi as soon as he possibly can because firstly if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness the proceedings will be stopped", and after further directing the assessors to consider the fact that these accused persons had given evidence on oath and called witnesses in support of their alibis remarked that the fact remained that the accused had an opportunity very much earlier at the preliminary enquiry to bring forward these alibis.

Appellants were convicted and appealed.

Held (11-8-39).—That the trial Judge had not failed to observe the necessary a (1969). And the final stage had not range to cost to the necessary<br>care and fairness to the accused when summing up to the assessors<br>regarding the alibis. Rex v. Ahmed bin Abdul Hafid (1 E. A. C. A. 76), Rex v.<br>v. Patrick

Atkinson for the Appellants.

Phillips, Crown Counsel, for the Crown.

The following is an excerpt from the Judgment (delivered by SIR CHARLES LAW, C. J.).—As regards the first and second appellants they put forward alibis only at the trial, and the learned Judge, in his summing up, correctly observed that an alibi should be brought forward at the earliest possible opportunity. (Rex v. Ahmed bin Abdul Hafid, 1 E. A. C. A. 76). In another case (Rex v. Patrick Moran, 3 Cr. App. Rep. 25) it was pointed out that if the accused had not only set up an alibi before the magistrate but had gone on to say that

he had been in a certain place at the time charged the Police would have investigated the case. In a later case ( $\text{Re}x$ v. William Littleboy, 24 Cr. App. Rep. 192) it was said that observations upon the failure to disclose a defence at some date earlier than the trial have to be made with care and fairness to the accused person in all the circumstances of the case. It was pointed out that there is a great difference beween making the comment that silence on the part of the prisoner is unfortunate and a matter to be regarded with reference to the weight of the defence, when the defence of alibi is raised, and saying that the fact that the prisoner was silent may be treated as evidence against him or as corroborating the evidence of an accomplice. In the present case before us we consider that the learned trial Judge did observe that care and fairness when summing up to the assessors regarding the alibis.