[1950] EACA 580

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (President), Briggs, Justice of Appeal, and CONNELL, J. (Kenya)

OMARI s/o HASSANI, Appellant (Original Accused)

# REGINAM, Respondent

## Criminal Appeal No. 205 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Lowe, J.)

Evidence—Statements by deceased—Whether accused's failure to give evidence on oath can be corroboration—Disclosure by advocate of advice to accused— Indian Evidence Act, section 126.

The appellant was convicted of murder and on the evidence the case for the prosecution rested almost entirely on two statements by the deceased that the accused was the person or one of the persons who attacked him. The trial Judge, after directing himself that such statements should be accepted with caution, found that there was corroboration of the statements in, inter alia, the accused's refusal to give evidence on oath, particularly as the defending advocate informed the Court that such refusal was against his advice.

Held $(1-10-56)$ .—(1) While a Judge is entitled to take into account a refusal to give evidence on oath, such refusal cannot be used to bolster up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt.

(2) The disclosure of the defending advocate that the accused had refused to take his advice was a breach of professional confidence and the trial Judge should not have allowed this to affect his mind.

Appeal allowed.

Cases referred to: Erunasani v. R., 14 E. A. C. A. 74; Jackson, 37 C. A. R. 43.

Appellant absent, unrepresented.

### Samuels for respondent.

JUDGMENT (prepared by WORLEY, President).—The appellant was convicted by the High Court of Tanganyika sitting at Tanga of the murder of one Ali s/o Mgunya on 13th February, 1956. The appellant was not present or represented at the hearing, but after consideration of the memorandum of appeal and the record and after hearing counsel for the Crown/respondent, we allowed the appeal, quashed the conviction and sentence and directed that the appellant be set at liberty forthwith. We now give our reasons for so doing.

The facts of the case are fairly simple. Deceased, appellant and the witnesses all lived in the same village. On the day of Ali's death, a stranger was arrested in the village on suspicion of witchcraft and it appears that it was believed that the deceased had some connexion with him. The village jumbe wished to check this and went to deceased's house accompanied by the appellant and others. The deceased not being at home the *jumbe* left a message and later that evening, about 8.30 p.m. Ali set out from his father's house to go to the *jumbe's* house. Apparently, the father was uneasy as he asked Athumani, Abdallah and John (all prosecution witnesses) to accompany his son. The party was unarmed: Ali led the way, with John behind him carrying a hurricane lamp. As they went along, Ali was suddenly set upon by at least three people. Only John claimed

to have seen the attack and identified the attackers but his evidence was disbelieved and must be disregarded. When Abdallah came up Ali was lying on the ground bleeding from a head injury or injuries: he said to Abdallah, "The person who attacked me was Omari Tumbo (the appellant) but I don't know the others". He was taken along to the jumbe's house where he told the jumbe, "I have been injured by Omari". In cross-examination the jumbe said, "Ali said he was beaten by many people but that the one who started to attack him was Omari". Ali then collapsed and was later removed to his father's house; while passing Omari's house which was between the *jumbe's* house and the deceased's father's house, the *jumbe* called out "Omari", but no one, according to the *jumbe*. was there and the door of Omari's house appeared to be padlocked on the outside. Ali did not recover consciousness before he died next morning. Post-mortem examination on 15th February disclosed a circular depressed compound fracture of the skull, which must have injured the brain and would of itself have proved fatal. It could have been caused by a heavy stick used with some force. Decomposition prevented the detection of further injuries.

On this evidence the case against the appellant rested almost entirely, as the learned trial Judge realized, on the two statements made by the deceased. The learned Judge very properly directed himself that such statements must be accepted with caution and he looked for other evidence tending to point to the appellant as being one of Ali's assailants. He found this corroboration in:

- $(a)$ evidence of knowledge and opportunity; - $(b)$ the appellant's refusal to give evidence.

In our opinion the learned Judge misdirected himself on both these matters. The inference of "knowledge" was based on the fact that the appellant knew the jumbe wished to interrogate Ali on his supposed connexion with the mysterious stranger and the "opportunity" was based on the allegation that the appellant's house was shut and locked when the jumbe passed it carrying the dying Ali back to his father's house. As to "knowledge" it seems to us most probable that this was shared by everyone in the village, which seems to have been in a state of excitement that evening, and as to opportunity it was also shared by almost everyone in the village. Mere opportunity alone does not amount to corroboration, unless the circumstances and locality of the opportunity are such as in themselves to amount to corroboration: Rex v. Erunasani 14 E. A. C. A. 74 at p. 76. Opportunity may have a complexion put upon it by statements made by an accused person which are proved to be false: ibid at p. 76. In the instant case the appellant sought to prove by his own unsworn statements and by the evidence of his wife that he was in fact in his house the whole night. That evidence was rejected but even so its falsity gave rise to nothing more than suspicion.

The more serious misdirection, however, is the inference drawn from the appellant's refusal to give evidence on oath at his trial. After reviewing the prosecution evidence, the learned Judge said: —

"All this tends to connect the accused in so far as he had an opportunity to commit this offence. The Crown at this stage had raised a fairly strong case against the accused which he could have broken down in evidence."

This passage is, to say the least, unfortunately worded: a "fairly strong" case is not in ordinary language the same as a case proved beyond reasonable doubt. In fact, there was little likelihood that the appellant could have "broken down" the Crown case by giving evidence. His statement to the committing Magistrate had been put in evidence. In that statement he set up the alibi to which he adhered at the trial and which his wife (who had been tendered by the Crown

for cross-examination) had sought to support. It seems improbable that, if the learned Judge disbelieved the wife on oath as to the alibi, he would have believed the appellant on oath: it is still more improbable that the appellant would have been believed if he had set up a different line of defence.

A Judge is, of course, entitled to take into account an accused person's refusal to give evidence on oath, but not to use such refusal to bolster up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt. Nor can such a refusal amount of itself to corroboration of evidence which requires to be corroborated: Jackson, 37 C. A. R. 43 at p. 48. It is very clear from the judgment that the learned trial Judge gave great weight to what he described as the appellant's refusal to face cross-examination. He says, for example: -

"Had he (the accused) given such evidence and given a reasonable explanation of his absence from home after Ali was attacked and also a reasonable account of his movements at the time of the attack and before, he might have succeeded in undermining or reducing the value of much of the prosecution evidence which I now feel bound to accept as reliable."

As we have already pointed out, the appellant had already give his account of his movements and adduced evidence to support it: that was disbelieved and he was not likely to gain greater credibility by giving a different account in the witness-box.

Moreover the learned Judge was undoubtedly strongly influenced by the assurance made to the Court by defending counsel that he had advised the accused to give evidence on oath. Section 126 of the Evidence Act is to the effect that no advocate shall be permitted, unless with his client's consent, to disclose any advice given by him to his client in the course of his employment. It was we think quite wrong and a breach of professional confidence for Mr. Donaldson to disclose to the Court that his client had refused to take his advice on this very difficult question, and the learned Judge should not have allowed this disclosure to affect his mind.

Lastly, we think that there is a misdirection in the following passage in the judgment: —

"I am satisfied that more than one person attacked Ali suddenly and without provocation and at least one of them was armed with a heavy stick. They acted in concert and from the nature of the injury to Ali's head... the blunt weapon used was fairly substantial. I have no doubt that the assailants intended to cause grievous harm to Ali."

With respect, the evidence fell far short of establishing that Ali's assailants, • whoever they were, all shared a common intention to cause grievous harm. Undoubtedly one of them did inflict on Ali grievous harm with a heavy weapon. It was certainly not proved that all were similarly armed, nor that all must have known that one of their number was so armed. It was certainly a fair inference that they intended to give Ali a beating with sticks but that is a long step from inferring that they intended or contemplated the causing of death or grievous harm.