[1950] EACA 509

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President) and BRIGGS, Justice of Appeal

### WILLY JOHN, Appellant (Original Accused)

# REGINAM, Respondent

### Criminal Appeal No. 536 of 1955

(Appeal from the decision of H. M. Supreme Court of Seychelles, Lyon, C. J.)

Procedure—Record insufficient to consider an appeal—Retrial—Seychelles Penal Code, section 291 (1)—Seychelles Criminal Procedure Code, sections 64, 148 (1) and 149 (1)—Eastern African Court of Appeal Rules, 1954, rule 39 (1)—Uganda Criminal Procedure Code, section 169 (1).

The appellant had been convicted by the Supreme Court of an offence<br>contrary to section 291 (1) of the Penal Code. There was no written judgment and there was insufficient material on the record to enable the Court to consider the appeal on its merits.

Held (16-4-56).—There had been no proper trial.

Conviction and sentence set aside. Case remitted to Supreme Court for retrial.

Cases referred to: Desiderio Kawunya v. R., 20 E. A. C. A. 281; Chacha s/o Wamburu $v. R., 20 E. A. C. A. 339.$

Appellant absent unrepresented.

Havers for respondent.

JUDGMENT (prepared by Sinclair, Vice-President).—The appellant was convicted by the Supreme Court of Seychelles of breaking into a building and committing a felony therein contrary section 291 (1) of the Penal Code and was sentenced to two years' simple imprisonment. He appealed to this Court. After reading the written statement of the appellant's case lodged under the provisions of rule 39 (1) of the rules of this Court and hearing counsel for the Crown, we allowed the appeal, set aside the conviction and sentence and ordered that the case be remitted to the Supreme Court for the information to be tried according to law. We now give our reasons.

There are five grounds of appeal. The first two are that the trial was not conducted in accordance with section 64 of the Criminal Procedure Code and that the requirements of section 148 (1) of the Code were not complied with. Section 64 provides that the place in which any Criminal Court is held for the purpose of trying an offence shall be deemed to be an open Court to which the public generally may have access and section 148 (1) provides, so far as it is material to the appeal, that the judgment in every trial in any Criminal Court shall be pronounced in open Court. In support of these grounds the appellant filed an affidavit in which he deposed that the trial took place, not in the usual courtroom, but in the trial Judge's Chambers and that no member of the public was present. There may have been good reasons why the courtroom was not used and there was nothing wrong in holding the trial in the Judge's Chambers provided they were treated as an open Court to which the public had access.

The actual presence of the public was not, of course, necessary. The test is not whether there were any members of the public in the room but whether the Court was open to anyone who presented himself for admission. There is no suggestion that there was any denial of the right of the public to be present at the trial and the presumption is that the trial Judge declared his Chambers to be an open Court.

The third and fifth grounds of appeal can conveniently be taken together. They are: $-$

3. The requirements of section 149 (1) of the Seychelles Code of Criminal Procedure were not complied with.

5. On the face of the record there was no evidence to convict.

The record of the proceedings is as follows: $-$

"31.10.—Butler—Accused—Charge read and explained.

Plea: (1) Not guilty (2) Not guilty.

Trial 23 November. (sd.) M. D. Lyon, C. J., 31/10/55.

23.11.55.—Butler—Accused.

P. W. 1 Leslie Westergreen (sworn): On $1/10$ at 2.30 a.m. I heard shouts from direction of Nariman's house. It was the voice of the guardian. I got up and said 'I'm coming'. I saw Gabriel Pool coming down with a torch. Someone called out 'here is the thief'. I saw Gilbert Pool pulling something out of a bush. It was a man—accused said 'why do you hit me. Don't you know I am the thief?'. I recognized this accused. Face wrapped up in a gunny. Khaki suit.

XXd. You did not say 'I am helping to look for the thief'.

(Sd.) M. D. Lyon. $($

Accused: I opened the padlock and got in the kitchen and moved the stove near the door and I hid in a bush when the guardian came. R. O. C.

(Sd.) M. D. Lyon.

Convicted section 291 (1) P. C.—Admits P. convictions.

Allocutus: Age 63.—'I've been in prison for most of the last 30 years.'

Sentence: 2 years' simple imprisonment.

Told right of appeal."

The appellant's statement to the police which is included in the record of the appeal does not form part of the evidence at the trial. We accept the explanation given in the letter from the Registrar of the Supreme Court dated 1st March, 1956, that the statement was handed in by the prosecutor after conviction and before sentence and was included in the record because it was taken into consideration by the learned trial Judge when assessing sentence.

There is no doubt that the judgment does not comply with the requirements of section 149 (1) of the Criminal Procedure Code, namely: -

"Every such judgment shall, except as otherwise expressly provided by this Code, be written 'by the presiding officer of the Court in the language. of the Court, and shall contain the point or points for determination, the

decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it'."

The failure to date and sign the judgment is a mere irregularity which can be cured by the application of section 304 of the Criminal Procedure Code since the whole of the record of the proceedings is in the hand of the trial Judge and there was no prejudice to the appellant. But the failure to comply with the other requirements of the section is fatal to the conviction. In Desiderio Kawunya v. Reg., 20 E. A. C. A., 281, this Court held that failure to comply with the provisions of section 169 (1) of the Uganda Criminal Procedure Code which is in similar terms to section 149 (1) of the Seychelles Criminal Procedure Code will not necessarily invalidate a conviction if there is sufficient material on the record to enable the Appeal Court to consider the appeal on the merits. In this case there is clearly insufficient material on the record to enable us to consider the appeal on the merits.

But Mr. Havers who appeared for the Crown sought to support the conviction on the ground that the appellant's statement must have been accepted by the learned Judge as a plea of guilty and there was, therefore, no need to write a judgment. He argued that at the close of the evidence of the first witness for the prosecution the appellant must have interrupted the proceedings to plead guilty; otherwise the Crown could not have been so lax as to call no further evidence as none of the elements of the offence which the Crown was required to establish had then been proved. There is, however, nothing in the record to indicate that the learned Judge accepted the appellant's statement as a plea of guilty. He did not enter any change of plea nor did he record that the appellant was convicted on his plea. He did not follow the usual practice of recharging the appellant before accepting an amended plea, a practice which this Court said was desirable in Chacha s/o Wamburu v. Reg., 20 E. A. C. A. 339. If the appellant's statement was accepted as a plea of guilty, it was wrongly accepted. The particulars of the offence with which the appellant was charged were that he "broke and entered into a kitchen adjacent to a dwelling-house occupied with it but not part of it, and committed a felony therein namely: stole a Dutch stove, the property of Nariman Padivalla". An essential element of the offence was the felony of theft and the mere admission by the appellant that he moved the stove cannot be construed as an unequivocal admission that he stole the stove or moved it with intent to steal. He might have moved the stove for some other purpose such as to facilitate the opening of the door.

For these reasons we came to the conclusion that the appellant did not have a proper trial and that there must be a retrial. It is unnecessary to consider the remaining ground of appeal.