[1952] EACA 292

## 157

# APPELLATE CRIMINAL

### Before SIR HECTOR HEARNE, C. J. and BOURKE, J.

# MAJESTIC THEATRE CO., LTD., Appellant (Original Accused)

#### ν.

#### **REGINA, Respondent (Original Prosecutrix)**

### Criminal Appeal No. 302 of 1952

(Appeal from decision of the First Class Magistrate's Court at Mombasa, R. L. Le Gallais, Esq.)

Criminal Procedure—Charge—Omission to allege act done or omitted to be done.

The appellant company was convicted under section 238 (c) of the Penal Code reading as follows: —

"Any person who, in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person—

(c) does any act with fire or any combustible matter, or omits to take precautions against any probable danger from any fire or any combustible matter in his possession."

Among his grounds of appeal it was argued that the charge did not allege specific precautions which the appellant should have taken and did not take to avoid harm to other persons nor was there proof of these allegations.

Held (21-7-52).—Where it is enacted by the legislature that the doing of any act or the omission to take precautions constitutes an offence, it is necessary that the act that was done, or the act that was omitted to be don Appeal allowed.

Bryson and O'Brien Kelly for appellant.

Le Gallais, Crown Counsel, for respondent.

JUDGMENT.—The appellant company was convicted of an offence under section 238 (c) Penal Code in that "between the 20th July, 1950, and the 25th August, 1951, at Ndia Kuu in Mombasa the company (the names of the managing director and directors were mentioned) omitted in a manner so negligent as to be likely to cause harm to any other person to take precautions against any probable danger from certain combustible matter in their possession, that is to say, cinema film and paper material".

The advocate for appellant company argued that the conviction was unsustainable for five reasons:-

- 1. The prosecution failed to prove any probable danger in the use and manner of use by the appellant company of the store in which cinema films were kept. - 2. There was no reliable or sufficient evidence that the company habitually kept posters in the store and outside the boxes or trunks in which the films were kept during the period covered by the charge.

- 3. In the absence of any allegations in the charge (and proof of such allegations) of the specific precautions the appellant company should have taken and did not take to avoid harm to other persons, the company should have been acquitted. - 4. The trial Magistrate erred in taking into consideration the manner in which the appellant company used other stores, not the subject of this charge. - 5. The use by the appellants of the store did not constitute that high degree of negligence which is requisite for a conviction under section 238 (c) Penal Code, if there was any negligence at all.

There is evidence that on the 25th August, 1951, a fire broke out in the Ndia Kuu quarter of Mombasa which involved the film store of the appellant company and in the opinion of the Chief Fire Officer, Mombasa, "the fire started from the film store which was the seat of the fire". The Magistrate found that "the fire broke out in the store in question" but that the cause of it was uncertain. He then referred to the two main possible causes of the fire suggested by "an expert witness" viz: spontaneous combustion of the films themselves or ignition by heat or by a spark from other combustible matter near by: and dealing with the first possibility he said, "it is possible that a length of film began to smoulder as a result of being out in the sun at the Railway Station or elsewhere before being placed in the store. It is in evidence that every reel was not looked at before storing. D. W.1 said he knew nothing of spontaneous combustion and yet had been storing films for many years. He clearly should have known of this danger and I find that this failure to take any precautions in this respect was a negligent omission". Elsewhere he said, "no precautions were taken to counter the danger of spontaneous combustion." In examination-inchief the Chief Fire Officer (P. W.2) said, "there are several possible causes (of the fire). It (the cinema film) can be ignited spontaneously by excessive heat. Anything nearby would cause the film to ignite by the heat. A spark touching the film would set it off." The case which the prosecution was apparently trying to establish was that the appellant company had not taken precautions against the probable danger of the films igniting as the result of excessive heat or a spark from other combustible matter in the store which had itself become ignited. "A cigarette end," the witness said, "could cause a fire in such a store if paper and other combustible matter were about." When he was cross-examined. however, he said that "spontaneous combustion of film might be started in a box left in the sun for a couple of hours", and because of that evidence and the admission of D. W.3 that "the films are brought to the theatre by handcart and that he did not look at all the canisters containing films", the appellant company was found to have been negligent in not taking precautions, not against the danger of films being ignited in the store, but against the danger of films being introduced into the store in a "smouldering condition". There is not a scintilla of evidence that the cinema films of the appellant company could have been or had ever been in the sun for a "couple of hours" at the railway station or elsewhere, and it is quite impossible to say that on the evidence the Magistrate could properly have held that the appellant company took no precautions against the probable danger of films being placed in the store which had already become ignited by reason of lying in the sun for "a couple of hours". This is an illustration of how unfair the trial of an accused person may be when he is unaware from the terms of the charge and indeed from the prosecution evidence itself of the danger against which he is alleged negligently to have failed to take some unspecified precautions. If the appellant company had been aware that prosecution case was that films had been introduced into the store which may have been in the sun for "a couple of hours", evidence may have been called that no such possibility existed and that in consequence the need of taking any precautions against a suggested but not in fact a possible source of danger did not arise

Dealing with the second possibility the Magistrate found that "the store was not kept free from combustible matter apart from the films, that if standing orders were issued (to keep the store free from combustible matter apart from the films) they were not enforced and to this extent the management of the accused company was negligent". The Chief Fire Officer had "no complaint about paper inside the boxes (in which the films were kept) if they were properly closed," but he objected to posters lying exposed in the same store as the boxed cinema films. We are unable to say that there was no evidence that after the fire the charred remains of posters were not found in the store but it is unfortunate that they were not produced. It was suggested by the defence that the burnt or partially burnt posters, if they were seen, had come from the boxes containing the cinema films. The Chief Fire Officer did not say that the burnt posters could not have been blown out of the boxes but he expressed a doubt whether they could have been. But even assuming that it had been established that cinema posters were kept in the room in which boxed cinema films were also kept, does this fact alone establish that the appellant company had not taken precautions against a probable danger of fire? That indeed is the finding of the Magistrate, but it is not supported by common sense or by the evidence. "The ignition temperature of films is 120° C. or 212° F.—very much greater<br>than the heat of Mombasa." There is no probable or even possible danger of films in a box being ignited because posters were kept in the same room. The danger would only arise if the posters caught fire, for then the heat from the posters would be likely to be transmitted to the films, but it could not be found that probable danger existed unless it could be proved, and it was not proved, that in the use that was made of the store there was a danger of the posters becoming ignited. They could become ignited if, for instance, it was shown that smoking was permitted in the store but there was no evidence at all that in the use that was made of the store, by smoking being allowed or otherwise, there was a danger of the posters being ignited. If the appellant company could be convicted for the reason given by the Magistrate, the Company would in effect be found guilty of a criminal offence merely because they possessed cinema films and paper posters both of a combustible nature which they stored in the same room. It may be that in respect of that being done the appellant company could have been charged with a contravention of one of the Mombasa Municipal By-laws but the evidence fell far short of proving the commission of an offence under section 238 (c) Penal Code.

We have not dealt with all the arguments of the advocate for the appellant company but we have indicated sufficiently our reasons for the view we take that the appeal must be allowed.

In conclusion we would comment on the third argument advanced by the advocate for the appellant company. In our opinion where it is enacted by the legislature that the doing of any act, or the omission to do any act, or the omission to take precautions constitutes an offence, it is necessary that the act that was done, or the act that was omitted to be done, or the precautions that were not taken should be alleged in the charge and proved. The prosecution should not leave them to the conjecture of the accused and the imagination of the Court. In the instant case the Magistrate refers in the last sentence of his judgment to the negligent omission to take "certain precautions".

The appeal is allowed and the conviction and sentence are set aside.