[1956] EACA 36

#### APPELLATE CRIMINAL

### Before SIR KENNETH O'CONNOR, C. J., and RUDD, J.

#### CHAI MUNGA DAGAMRA, Appellant

# THE QUEEN, Respondent

## Criminal Appeal No. 116 of 1956

## Recall of witnesses by magistrate after close of case for defence-Criminal Procedure Code, section 150.

The appellant was convicted of conspiring with one Karisa to defeat justice. The case for the prosecution depended upon the evidence of a witness Joshua. The magistrate, being doubtful whether Joshua was an accomplice or not, called him at the end of the case for the defence and heard him further. No opportunity was given to the accused or the prosecutor to cross-examine on this additional evidence.

Held (27-6-56).—(1) Having regard to the statutory obligation placed upon the Court by section 150 of the Criminal Procedure Code to call or recall a witness at any stage of a trial if his evidence appears to be essential to the just decision of the case, it is open to question whether the rule laid down in England in R. v. Harris, 20 Cr. App. R. 86, 89, and R. v. Day, 27 Cr. App. R. 168, 171, that the calling of fresh evidence by the Court<br>after the close of the Defence should be limited to matters arising *ex improviso* which<br>no human ingenuity could foresee on the part of the pri Kenva.

(2) In any event, it was not proper or regular for the Magistrate to hear and record the additional evidence without giving the accused and the prosecutor an opportunity of<br>cross-examining upon it: the proviso to section 150 of the Criminal Procedure Code is mandatory on that point.

#### Appeal followed.

Cases referred to: R. v. Harris, 20 Cr. App. R. 86; R. v. Liddle, 21 Cr. App. R. 3; R. v. Day, 27 Cr. App. R. 168; R. v. Browne, 29 Cr. App. R. 106; R. v. Owen, 36 Cr. App. R. 16, 20; R. v. Mangatinda ole Dusiat, (1953) 15 K. L. R. 112; Newmark v. Rex, (1934) 1 E. A. C. A. 162; Aw Deria Husse

[Editor's Note.—See now R. v. Wallwork, 42 Cr. App. R. 153, 158, 159; and Manyaki d/o Nyaganya v. R., Cr. App. 98 of 1958 E. A. C. A. (unreported).]

O'Brien Kelly for the appellant.

Webber for the Crown.

The judgment of the court (which is reported only on the point of the recall of a witness after the close of the defence case) was delivered by O'Connor, C. J.

JUDGMENT.—The magistrate, being doubtful whether Joshua was an accomplice or not, recalled him at the end of the case for the defence and heard his further evidence on this point. Presumably, the magistrate acted under section 150 of the Criminal Procedure Code. It has been held in England that after the close of the case for the defence, fresh evidence should be limited to something arising ex improviso. This applies whether the fresh evidence is called by the prosecution or by the Judge and, apparently, whether it is a new witness or a recall of a witness who has already testified (R. v. Harris, 20 Cr. App. R. 86; R. v. Liddle, 21 Cr. App. R. 3; R. v. Day, (1940) 27 Cr. App. R. 168; R. v. Browne, 29 Cr. App. $R.$ 106).

$\nu$ .

Hilbery, **J.,** in *R. v. Day (supra)* said that the law was then (1940) well settled.

"The court is of opin,ion that the law is now well settled. The rule was laid down by Chief Justice Tindal in *Frost,* (1839) 4 St. Tr. **(N. S.)** 86 at page 386; 9 C. & **P.** 129, at page 159, where the Chief Justice said: 'There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling· fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises *ex improviso,* which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose *ex improviso* may not be answered by contrary evidence on the part of the Crown.' This rule thus stated was expressly adopted by this court in *Harris,* 20 Cr. Ap. **R.** 86 at page 89; (1927) **K. B.** 587, at page 594, where, after quoting the above passage, the present Lord Chief Justice said: 'That rule applies only to a witness called by the Crown and on behalf of the Crown, but we think that the rule should also apply to a case where a witness is called in a criminal trial by the Judge after the case for the defence is closed, and that the practice should be limited to a case where a matter arises *ex improviso,* which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue'."

On the other hand in *R. v. Owen,* 36 Cr. App, 16, 20 (which we think is the latest English authority) the Court of Criminal Appeal, referring to the dictum of Tindal, **C. J.,** in *Frost's case* said: -

"We may observe that the rule laid down by Tindal, C. J., is probably in wider language than would be applied at the present day."

In *Owen's case* a prosecution witness was recalled by the Judge, at the request of the jury, after the summing up had been concluded. The Court of Criminal Appea) quashed the conviction on this ground.

In **R.** *v. Mangatinda o/e Dusiat,* (1933) 15 **K. L. R.** 112, 113; *R. v. Harris (supra)* and the dictum of Tindal, **C. J.,** in *Frost's case* were followed and it was held by this court that two additional witnesses called by the magistrate after the defence case was closed should not have been called.

In *Newmark v. Rex,* (1934) l. E. A. C. A. 162, an appeal was allowed by the Court of Appeal for Eastern Africa on the ground that the magistrate had called additional evidence after the close of the case for the defence in a matter not arising *ex improviso* and **R.** *v. Harris (supra)* was followed. No consideration was given by the court in *R. v. Mangatinda* or in *Newmark v. Rex* to the point that in Kenya the matter is (as it is not in England) regulated by an express statutory provision (section 150 Criminal Procedure Code) which not only expressly empowers the court at any stage of a trial to call an additional witness or recall and re-examine any person already examined, but places upon the court a mandatory obligation to do this if the person's evidence appears to the court to be essential to the just decision of the case. Whether, having regard to this statutory obligation in terms applying to any stage of a trial, such English cases as *R. v. Harris* and *R. v. Day (supra)* are entirely applicable may be open to question.

In *Aw Deria Hussein v. Reg.,* (1953) 20 E. A. C. A. 181, the following passage occurs:-

"At the close of the case for the defence the Judge recalled one of the prosecution witnesses and put to him certain questions in order to elicit whether a scabbard had been found on the appellant after his arrest. It has been submitted by Mr. Holland that this action on the part of the Judge coming at such a late stage in the trial was inconsistent with English practice. Whether that be so or not, it certainly did not offend against the provisions of section 384 of the Somaliland Criminal Procedure Code which, inter alia, allows the court at any stage of the trial to recall and re-examine any person already examined. The learned Judge therefore was within his powers in doing what he did."

Whether *Mangatinda's case* must now be taken to be over-ruled by *Aw Deria* Hussein v. Reg. (supra) and what is the effect of the latter decision on Newmark's case are questions which we need not here pursue, because, whether or not it was proper and regular for the magistrate in the instant case to recall a prosecution witness after the close of the defence, it was certainly not proper or regular for him to hear and record this additional evidence without giving the accused and the prosecutor an opportunity of cross-examining upon it. The proviso to section 150 of the Criminal Procedure Code is mandatory on that point. There is nothing on the record to show that the proviso was complied with. We cannot apply section 381 of the Criminal Procedure Code, as we are not able to say that neglect to comply with this proviso may not have occasioned a failure of justice.

On this ground (apart from the fact that the evidence of Joshua may be an unsafe basis for a conviction which would be an additional reason for not applying section 381), we feel bound to allow the appeal. The conviction and sentence are quashed.