Wambugu v Rex (Criminal Appeal No. 265 of 1950) [1950] EACA 91 (1 January 1950)

## APPELLATE CRIMINAL

# Before SIR BARCLAY NIHILL, C. J., and THACKER, J.

## GEORGE MIGWA WAMBUGU, Appellant (Original Accused)

# REX, Respondent (Original Prosecutor)

### Criminal Appeal No. 265 of 1950

## (Appeal from decision of Resident Magistrate's Court at Nyeri-A. C. Harrison, Esq.)

## Penal Code, section 317 (1)—Receiving stolen property—Evidence of selfconfessed thief $-$ Accomplice $-$ Corroboration necessary $-$ Statement of accused to police on arrest after due caution—Cross-examination on, improper—Judges' Rules—Rule 7.

George Migwa s/o Wambugu, accused, pleaded not guilty to a charge, under section 317 (1), Penal Code, of receiving 1,000 packets of cigarettes, knowing them to have been stolen. The only direct evidence for the prosecutor was that of one Ali Bin Mohamed, who admitted having stolen the cigarettes and sold them to the accused. There was no corroboration of this evidence but that of the police officer who recorded the statement of accused on his arrest, after due caution, on which statement he was cross-examined by the police officer, who stated that accused had admitted receiving the cigarettes. Accused was convicted, and sentenced to three years' imprisonment with hard labour.

### Accused appealed.

Held (29-8-50).—(i) That the evidence of the self-confessed thief, as an accomplice, required adequate corroboration, of which there was none in this case.

(ii) That the cross-examination of accused on his statement to the Police Officer on his arrest, after due caution, was highly improper, and evidence based on it was inadmissible.

(R. v. Fabiano 8 E. A. C. A. 99 followed.)

Judges' Rules (Archbold, 32nd Ed. pp 394-397 referred.)

Conviction quashed.

#### Appellant present, unrepresented.

Templeton, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of receiving stolen property contrary to section $317(1)$ of the Penal Code.

The main evidence against the appellant was given by the man who admitted that he himself had stolen the cigarettes which were the subject matter of the charge. The judgment of the learned Magistrate is defective in more than one particular. He does not seem to have appreciated that P. W.1 was a self-confessed accomplice and that therefore before convicting the appellant it was necessary to look for corroborative evidence. It is, of course, true that the rule as to corroboration is a rule of practice rather than a rule of law and that cases do arise where it is possible for a Court to convict on the uncorroborated evidence of an accomplice when the Court can safely come to the conclusion that the evidence of the accomplice cannot but be true, but in such cases a Court must caution

itself before it does so and must have good reasons before departing from the established practice. This case is certainly not one of those. The accomplice, quite apart from this offence, was a person of bad character and since the cigarettes were neither found on the person of the appellant or in his possession it was very necessary that the story told by the accomplice should have adequate corroboration. The Crown has conceded on the hearing of this appeal that nothing like this is present in the evidence, and we are of the same opinion. There was some support of the accomplice's story in the evidence of the third prosecution witness but that evidence establishes nothing more than that the appellant was seen talking in the street to the thief when the latter had the cigarettes in his possession. We think that the learned Magistrate probably based his conviction firstly, on the fact that the appellant in his plea admitted receiving the cigarettes, although he denied that they were stolen, and secondly, on a passage in the evidence of Inspector Bales which stated that the appellant had told the Inspector the same thing at some stage after his arrest. If this be so the conviction is based on quite improper considerations. Where the words used by an accused person on answer to a charge have been construed by the Court as a plea of not guilty the Court is not entitled to take a portion of the words spoken and use them as admissions by the accused person. If the appellant did make an admission of receiving to a police officer after arrest it was not contained in the appellant's formal statement given after the customary caution and should not therefore have been admitted by the learned Magistrate.

This now brings us to what we regard as the most unsatisfactory feature of this case, namely, the statement by the appellant put in by Inspector Bales as Ex. I. This statement consists of two parts. The first part which was given, according to Mr. Bales, after an administration of the usual caution was read over to the appellant and signed by him as correct. On this part of the appellant's statement we have no comments as on the face of it it appears to be in order, and it was an admissible statement since it did not in any sense constitute a confession. The second part of the statement consists of a series of answers to specific questions put by the Police Inspector. These questions were clearly not questions put to the appellant in order to clear up any ambiguity in his main statement but were quite literally in the nature of cross-examination. Both this Court and the Court of Appeal for Eastern Africa have from time to time expressed their disapproval of such a procedure (e.g. Rex v. Fabiano, 8 E. A. C. A. at p. 99). Speaking generally, this Court expects police officers to observe the substance of the Judges' Rules (Archbold, 32 Ed. pp. 394-397). In this case the procedure adopted by Inspector Bales was a direct violation of Rule 7 of those Rules. It was also, we have been informed by learned Crown Counsel, a violation of Police Standing Orders. We therefore direct that a copy of this judgment shall be sent to the Commissioner of Police for his information and for any action he may wish to take. We have also said enough to indicate that this conviction cannot be allowed to stand. It is accordingly quashed, and the sentence passed on the appellant is set aside. He will be liberated forthwith.