Rex v Siprian (Criminal Appeal No. 61 of 1947) [1947] EACA 24 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda) and PEARSON. J. (Uganda)

REX, Respondent (Original Prosecutor)

SIPRIAN s/o NSHANGE. Appellant (Original Accused) Criminal Appeal No. 61 of 1947

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

Criminal Law—Arson—S. 319 (a) P. C. Tanganyika—Proof—Appeal on fact.

The appellant was convicted of arson. The evidence against him consisted of a threat which he had made about a week previously to burn the particular house and his failure to turn out when the alarm was raised.

He appealed.

Held (30-4-47).—That the evidence against the appellant constituted merely suspicious circumstances and fell short of the proof requisite to warrant a conviction in a criminal case.

Appeal allowed.

Conviction quashed.

Appellant absent, unrepresented.

Hunter, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—This is an appeal from a judgment of the High Court of Tanganyika convicting the appellant of wilfully setting fire to a house contrary to Section 319 (a) Penal Code and sentencing him to five years' imprisonment with hard labour.

The learned Judge in his judgment clearly indicated that, had it not been for the opinions of the assessors who thought that the accused was guilty, he (the Judge) would probably not have convicted. The short point for our decision is whether the evidence showed merely the existence of suspicious circumstances or whether (as learned Crown Counsel has strenuously contended) the circumstantial evidence was sufficient to make any reasonable jury conclude that the appellant and no one else was the person who had set fire to the house. The prosecution were able to rely on two matters only, namely (first) the fact that some time before the fire (how long it is not easy to say, but probably about a week) the appellant was heard to threaten to burn down the house in question because of a quarrel he had had with the owner of the house who had complained of the action of the appellant in drinking with the wife of the house owner's brother, and (second) the fact that the appellant was the only neighbour who did not turn out when the alarm was raised about the fire.

Earlier on the night of the fire, according to the house owner, the appellant was at a wedding dance about a mile from the house which was burnt out. We realize that he might well have been able to walk that mile because the fire did not take place till about midnight. The threat was clearly a suspicious circumstance pointing to the accused as being the culprit; but does the addition of another suspicious circumstance, namely the non-appearance of the appellant at the fire, clinch the matter against the accused? We do not think that it does. although we realize that the assessors who, of course, know native custom, considered that because he was the only one of the neighbours who did not turn up, the appellant must have been the guilty party. But is this clear reasoning?

Assuming that it is the custom for all the neighbours to turn up, surely the guilty one would make every effort to be present if only for the purpose of diverting suspicion from himself. But, be that as it may, it might well be that the appellant (if innocent) is one of those people, exceptions perhaps, who do not turn out on an alarm being raised. He may even have been in a deep slumber due to drink consumed at the wedding dance. In any event, we think that his failure to turn out is at the most equivocal and capable of an explanation either detrimental or favourable to the appellant. The appellant gave evidence that he was not in his house that night. He was on that point corroborated by his mother (Kyenbayu at p. 10). Neither the learned Judge nor the assessors deal with that evidence. In our view, the Crown cannot rely upon the appellant's failure to turn out in answer to the fire alarm in the absence of evidence to show that he in fact must have heard the alarm. It is not for the appellant to prove that he was in some place or in some circumstances in which he could not hear the alarm; the Crown must prove all the facts on which the prosecution relies and in this connexion the material fact is that the appellant heard the alarm but ignored it.

While this Court is always reluctant to interfere with findings of fact of a Court of first instance, we cannot but feel that the highest at which the case for the Crown can be put is that there were suspicious circumstances, but that the proof fell short of that which is requisite to warrant a conviction in a criminal case. For these reasons, the appeal is allowed and the conviction quashed. The appellant will be set at liberty unless he is held on another charge.

Ą