[1951] EACA 259

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY, Ag. President, LOCKHART-SMITH, Ag. Vice-President, SINCLAIR, Ag. C. J. (Tanganyika).

## ABDULLAH GULAMHUSSEIN ABDULLAH, Appellant (Original Accused No. 1)

## REX, Respondent (Original Prosecutor)

### Criminal Appeal No. 167 of 1951

(Appeal from decision of H. M. High Court of Tanganyika—Abernethy, Ag. J.) Intervention by Advocate holding watching brief for complainant-Whether prejudicial to accused.

At the trial of appellant and another for theft, the complainants who were also witnesses were represented by an advocate holding a watching brief. At the conclusion of the case but before judgment the complainants' advocate accused accused's advocate of unprofessional conduct. The trial Magistrate referred to the accusation in his judgment in convicting the appellant. The appellant before the High Court raised the question of the unprofessional conduct of the complainants' advocate in addressing the Court. The High Court dismissing the appeal held that though the conduct of the complainants' advocate was highly irregular the trial Magistrate was not prejudiced. The appellant appealed to the Court of Appeal for Eastern Africa.

Held (21-9-51). That the attack by complainants' advocate upon appellant's advocate was ill-advised and ill-timed and that the Magistrate had done better to stop him-there was no prejudice.

Appeal dismissed.

Masters with O'Donovan, for appellant.

Summerfield, Crown Counsel, Tanganyika, for Crown.

JUDGMENT.—This is an appeal from a decision of the High Court of Tanganyika in appellate jurisdiction dismissing the appellant's appeal from a conviction for theft.

The only ground of appeal argued before us is that the learned Judge of the High Court "should have held that the separate representation of the complainants by their advocates during the trial before the Resident Magistrate and the charge of unprofessional conduct made by them against the appellant's advocate before the pronouncement of judgment was such a breach of legal procedure as to vitiate the whole trial, and that the learned Judge should have held that the conduct of the complainant's advocate may have prejudiced the Resident Magistrate against the appellant".

We set out first the rather peculiar circumstances upon which this ground of appeal is based.

The appellant was charged before the Resident Magistrate at Mwanza (together with another person who was subsequently acquitted) with stealing the sum of Sh. 120,000 from Ahmed Janmohamed Dhirani and Nanji Mohamed Adha. These two last-named persons had laid the complaint and were two of the principal witnesses for the prosecution. Suggestions were made by the appellant's advocate in the course of the trial that the money in question was not the property, or was not the sole property, of the complainants and that it was either the proceeds of an illicit transaction in diamonds or was intended to be used in such a transaction. Perhaps because they foresaw the possibility of such suggestions, the two complainants had instructed advocates to hold watching briefs for them at the trial. There was nothing unusual in this and there is no substance at all in the allegation made in the memorandum of appeal that this was such a breach of legal procedure as to vitiate the trial.

It is, however, beyond question that an advocate holding a "watching brief" for a witness or for some person who is not a party to the record has no right to take any part in the trial, though we know of no objection to his making suggestions to the advocate who is conducting the prosecution or defence, as the case may be. Whether it is ever permissible for him if he thinks the interests of his client so require, to crave the indulgence of the Court to draw attention to any rule of law or practice which he fears is being overlooked to his client's prejudice, for instance, if his client were being asked a question the answer to which might tend to incriminate him, is a question which may fall to be considered some day, but does not arise here.

In the present case Mr. Chopra who was holding a watching brief for one of the two complainants did intervene at one point during the examination by the Court of one of the principal witnesses for the prosecution. The purpose of the intervention is not clear; it may be that Mr. Chopra was endeavouring to assist the Court. Mr. Masters, for the appellant, does not rely upon this intervention, and we only refer to it because the witness who was under examination at the time was not one of Mr. Chopra's clients and we think the learned Magistrate would have been better advised to ignore his intervention.

The intervention which is said to have vitiated the trial or alternatively to have prejudiced the Resident Magistrate took place after the close of the hearing but before judgment was delivered. On the 11th December, 1950, the Magistrate announced that he would deliver judgment on the 20th. Mr. Yates, advocate for the appellant, had already said that he would not be in Mwanza at the time judgment was given and when the learned Magistrate announced the date for judgment Mr. Chopra then accused Mr. Yates of unprofessional conduct in terms which the Magistrate has recorded as follows: -

"Chopra.

Scurrilous imputation by Yates on characters of Dhirani and other witnesses. He made these imputations and then did not call upon either of the two accused to make any defence.

(Yates bows to the Court and leaves.)

Accuses Dhirani of engaging in diamond dealing. Persons insulted without any cause.

My address nothing to do with the case—but I object to Yates' conduct as unprofessional. I have made my remarks now because I wished to address you while Yates was here—he would be absent at the time judgment was delivered."

The learned Magistrate in a careful considered judgment found the appellant guilty of the offence charged and convicted him, and then in the concluding portion of his judgment referred to Mr. Chopra's accusations against Mr. Yates in the following passage:-

"There is one matter upon which I must touch and to which attention was drawn at the conclusion of the hearing by Mr. I. C. Chopra. He referred to the conduct of the case by Mr. Yates, in particular to the attack upon the credit of some of the prosecution witnesses, and his subsequent failure to call either of the accused in support of what he had been instructed to say. It is as well here to quote from a recent judgment of the Lord Chief Justice in the matter of an application by one Ackers for leave to appeal against conviction, reported at page 108, Criminal Appeal Cases, Part 3 (1950). The Lord Chief Justice said that, 'it is one thing to cross-examine properly and temperately with regard to credit, though it is very dangerous to do so unless you have material on which to cross-examine, and with which you can confront the witness. It is, however, entirely wrong to make such suggestions as were made in this case, namely that the police beat the prisoners until they made confessions, and then, when there is the chance of the prisoner to substantiate what has been said by going into the box, for Counsel not to call them. The Court hopes that notice will be taken of this, and that counsel will refrain, if they do not intend to call their clients, from making charges which, if true, form a defence but which, if there is nothing to support them, ought not to be pursued'.

Mr. Yates principal attack was upon the two complainants, Dhirani and Adha, I am unable to find anything improper in his cross-examination. Before examining them as to previous convictions, he very fairly warned them and they could decline to answer any question the answer to which might tend to incriminate them. The witnesses, however, chose to answer the questions. In attacking them with an allegation of previous illicit association with diamonds, I find he was acting properly in view of the fact that both witnesses admitted to having been warned and searched by the police in this connexion. The warning and searching provided material upon which Mr. Yates could properly base his allegations. Where, however, he went too far was to suggest in his address to the Court that the complainants had obtained their money (the Sh. 120,000) by illicitly trafficking in diamonds. There was no evidence to support this suggestion. Indeed, neither of the witnesses was asked, in so many words, if he had obtained the money as a result of illicit dealing in diamonds. Had either witness been asked this question, it would have been improper, if Mr. Yates did not intend to call any evidence to support the accusation. In the absence of any evidence to give foundation to the suggestion which Mr. Yates made in his address, it should not, in my opinion, have been made."

It will be observed that no objection to Mr. Chopra's intervention was made at the time by Mr. Yates, unless indeed his leaving the Court during these remarks was intended as a protest.

The matter now complained of was raised in the course of the appeal to the High Court and is dealt with in the following passage in the judgment of the learned Judge of that Court:-

"As an afterthought apparently—for it is not mentioned in the grounds of appeal-learned counsel for the appellant have argued that this appeal should succeed because of the unprofessional conduct of Mr. Chopra, who held a watching brief for Dhirani and Adha, in addressing the Court before the learned Magistrate had delivered judgment and because the learned Magistrate allowed them to do so and was influenced in his decision by what Mr. Chopra said.

I must agree that it was highly irregular for Mr. Chopra to address the Court as he did but I believe as Mr. Chopra said, his remarks had nothing to do with the case but were a protest against Mr. Yates' conduct of the case for the appellant.

From his judgment it does not appear to me that the learned Magistrate was in any way influenced by anything said by Mr. Chopra.

His judgment indicates that he did not consider Mr. Chopra's remarks until after he had found the appellant guilty.

Learned counsel for the appellant have argued that the learned Magistrate erred in holding that Mr. Yates 'went too far in suggesting in his address to the Court that the complainants had obtained their money by illicitly trafficking in diamonds' and have referred to paragraph 240 of Current Law for November, 1950. But this only deals with questions put in cross-examination and the learned Magistrate did not hold that any questions put by Mr. Yates in cross-examination were irregular. In his reference to Mr. Yates' address to the Court the learned Magistrate did not err. There was no evidence to support such allegations. Where the learned Magistrate did err was in stating that it would be improper for Mr. Yates to ask witnesses questions suggesting they had obtained the money by illicit trafficking in diamonds if he did not intend to call evidence to support such suggestion. This is not necessarily so. 'It is not improper' I quote from paragraph 240 of Current Law for November, 1950, 'for counsel to put questions suggesting fraud, misconduct or the commission of any criminal offence (even though he is not able or does not intend to exercise the right of calling affirmative evidence to support or justify the imputation they conveyed) if he is satisfied that the matters suggested are part of his client's case and has no reason to believe that they are only put forward for the purpose of impugning the witnesses's character'.

Learned counsel for the appellant (Masters) has mentioned the fact that not only must 'justice be done but it must seem to be done' suggesting that in this case it does not appear to have been done.

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I am satisfied, however, that justice was quite manifestly done and I must dismiss this appeal against conviction. The sentence is not excessive and I also dismiss the appeal so far as sentence is concerned."

The reference to paragraph 240 of Current Law for November, 1950, is a reference to a ruling of the General Council of the Bar in England dated November 6th, 1950, on professional etiquette with regard to cross-examination. This ruling supersedes that of the Annual Statement, 1917, at page 7, which appears in the Annual Practice, 1949, at page 3685 under the heading: "Cross-examination to credit".

Mr. Masters, before us, referred to the fact that his client offered no defence to the charge at the trial either by way of evidence or by unsworn statement but rested on the weakness of the prosecution case. It was necessary for the Crown to show that the money in question was the property of the complainants and the defence sought to disprove this, or at least to throw doubt upon it, by the suggestions referred to above, and he contended that this course might possibly have succeeded but for the attack made on Mr. Yates, which, he said, having been made before judgment must or may have prejudiced the Magistrate against the appellant. In support of his argument Mr. Masters referred to reported cases in which it has been held that the trial was vitiated because of attacks upon the character of the convicted person; but these cases, if relevant at all, are only so as demonstrating the principle that if there is any real likelihood of the appellant having been prejudiced and thereby not having had a fair trial the Court will quash the conviction.

We agree that the Court will always be jealous to see that the trial has been fairly conducted. We agree also that Mr. Chopra's intervention and attack upon Mr. Yates was ill-advised and ill-timed and that it would have been better had the learned Magistrate stopped him on the ground that it was not a matter for a Court to consider at that stage. We agree, however, with the learned Judge on first appeal that the Magistrate's judgment indicates that he did not consider Mr. Chopra's remarks until after he had found the appellant guilty and we agree with his conclusion that justice was quite manifestly done. Although the learned Magistrate in his remarks did misdirect himself on the effect of the ruling of the General Council of the Bar this was, as the High Court pointed out, merely obiter. In our view there is no substance in the suggestion that the trial Magistrate was prejudiced against the appellant and this appeal is dismissed.