[1950] EACA 562

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and Rudd, J. (Kenya)

## (1) WACHIRA s/o MURAGE, (2) NGUGI s/o GATHURU, (3) MWENDWA s/o MULI, (4) MUKOMA s/o KAMBOI, (5) JAMES MURAGURI s/o ISSAC KAGA, (6) WANJOHI s/o WAMBOGO, (7) MWAURA s/o NJEROGE, Appellants (Original Accused)

#### ν

### REGINAM, Respondent

### Criminal Appeal No. 168 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, Hooper, J.)

Procedure—Accused preventing trial from proceeding.

The accused had all been charged with and convicted of murder. The third accused 'when arraigned had refused to plead and his conduct in Court was such as to raise doubts as to his sanity. He was examined by a psychiatrist who said that he was simulating disease of the mind. The accused made such a disturbance in Court that it would not have been possible to conduct the trial if he were present. Accordingly, the trial Judge entered a plea of not guilty on his behalf and ordered his removal from Court. He was brought in to be identified, to be given the opportunity to make his defence, to be informed of the judgment and to be sentenced. Apart from these occasions the trial took place in his absence.

Held (18-8-56).—In the unusual situation which arose, the procedure adopted by the trial Judge was correct.

Appeals dismissed.

No cases.

Appellants in person.

Webber for respondent.

JUDGMENT (prepared by Briggs, Acting Vice-President).—These seven appellants were jointly tried and convicted of murder. They were all convicts imprisoned on Megeta Island and serving long terms, most of them having originally been sentenced to death and obtained commutation. They escaped together from the island by seizing a large canoe and in the course of doing so murdered one of the fishermen who owned it. We dismissed their appeals.

As regards the first, fifth, sixth and seventh appellants, no comment is necessary. The second and fourth appellants both claimed to have been under 18 years of age at the time of the murder, and that consequently the sentences of death passed on them were unlawful. Although this appeared unlikely, we thought it possible that they might have been under 18 at the time when the first death sentences, since commuted, had been passed on them. We investigated the records of their earlier trials and took additional expert evidence as to their ages. We were satisfied that not only the present sentences, but also the earlier capital sentences passed, were perfectly regular. Both had been medically examined at earlier dates and we were impressed by the general consistency of the evidence of the various expert witnesses, whose reports, made independently of one another, showed a close correspondence in their results which must give confidence in their accuracy.

The appeal of the third appellant raised a somewhat unusual point. When arraigned he refused to plead and created an uproar in Court which raised doubts as to his sanity. He was examined by a psychiatrist who gave evidence that he was mentally normal and merely simulating disease of the mind. presumably with the object of avoiding trial. The appellant continued to make such a disturbance that it would not have been possible to conduct the trial if he was present. The learned Judge accordingly entered a plea of not guilty on his behalf and ordered his removal. Most of the trial then took place in his absence. He was brought in when necessary in order to be identified, and was, in particular, brought in to be given the opportunity of making his defence. which he refused to do, to be informed of the effect of the judgment, and to be sentenced. From our own observation of this appellant on the hearing of the appeal we are in no doubt whatever that he was completely same and fit to stand trial.

In this unusual situation a trial Judge may well be in doubt as to the correct procedure. We desire to say that in our opinion the course adopted by the learned trial Judge in this case, the details of which are carefully set out in his notes and judgment, together with the relevant authorities, was not only strictly correct, but may well serve as a model for other Judges who may be faced with the same problem.

*Note.*—The following is an extract from the judgment of the Supreme Court.

"Before dealing with the evidence for the Crown and for the defence it may perhaps be appropriate for me to refer to the conduct and demeanour of the third accused, Mwendwa s/o Muli, when the pleas of the accused were taken, and whenever he appeared in Court. Upon being brought into Court to plead with the other accused, the third accused (and, indeed, I am told while in the cells below), started to shout abuse and to struggle, accompanied by alternate fits of laughter and joking, with his guards. The noise created by this person was so great that I was unable to make myself heard or to hear what learned counsel for the Crown and the defence had to say. I, therefore, ordered the third accused to be removed from the Court, and when the hubbub had subsided, I was informed by learned counsel for the Crown (who, I understand, is well acquainted with the Kikuyu tongue), that this accused had told the Court interpreter that he refused to plead in this or in any other Court in Kenya. The accused was, therefore, brought back and told that if he would not plead, a pleaof not guilty would be entered. The statement of learned counsel for the Crown was confirmed by the Court Interpretor, who is himself a Kikuyu, and I, therefore, entered a plea of not guilty under section 276 of the Criminal Procedure Code. Whenever the accused has been brought into Court, he has indulged in these tactics of shouting the Court down, which were effective, so far as I was concerned, in making it impossible for me to hear, or to make myself heard. It was quite clear to me that his continued presence in Court would make it impossible for the trial to be held. I came to the conclusion from this man's behaviour and appearance that he was feigning madness. I, therefore, determined to send him to the Psychiatrist-Specialist at the Mathari Mental Hospital, Nairobi. for examination (vide my letter No. S. C. CR. C. 103/56 of 5th June, 1956). Dr. Margetts replied by letter of 13th June stating that while the accused's behaviour was grossly abnormal, it was his firm opinion, 'that he was malingering, i.e. he was simulating disease of the mind in order to avoid trial'. The doctor found that he was quite capable of understanding what was being said to him, and if he felt inclined, he could answer questions directly and in a sensible way. Finally. Dr. Margetts said that he had no doubt that this accused would continue his abnormal talk and behaviour and would not be likely to co-operate in Court. But he thought he would be capable of understanding the Court proceedings and could make his defence, though it was not likely that he would choose to do so.

When the case came on for trial on 18th June, 1956, the accused, on coming into Court again started to shout and make an uproar and I, therefore, caused the Kikuyu Interpreter to go up to him in the dock and shout in his ear that owing to his abnormal behaviour, which made it impossible for the trial to be held. I had determined to have him removed from the Court. This was done and the trial proceeded

I was naturally most reluctant to exclude from Court a man who was on trial for his life and I only did so after anxious consideration, and consultation with learned Grown counsel and learned counsel for the defence, who both agreed that the continued presence of this accused in Court would make it impossible for the trial to be held. The accused was, however, brought into Court (still shouting), whenever a point of identification arose. I discarded the alternative of holding a separate trial of this accused and a separate trial of the other six accused, for I would have been confronted by the same difficulty had I decided to try this accused separately. It would have meant hearing the evidence twice and the accused would certainly have adopted his shouting tactics. Before deciding on this course I consulted what authority I could find regarding the course I had been obliged to adopt.

In Roscoe's Criminal Evidence, 15 ed., p. 253, is the following: 'A person indicted for felony must in all cases appear in person and be arraigned.... Where, however, defendant feigned to be a lunatic, and was very violent and noisy, Wills, J., ordered him to be removed, and, although he had no counsel, the trial (for burglary), proceeded, and verdict and sentence were given in his absence: Berry, Northampton Assizes, November 17th, 1897; Stephen: Dig. Crim. Proc. Art. 302, p. 194, and another case, Law Journal, September 22nd, 1906, p. 612'.

Some further light is thrown on Berry's case (there is no report available in these Courts) by the report of *George Smellie's case* (14 Cr. App. R. p. 128). In this case the Court decided that if the Judge considered that the presence of the prisoner would intimidate a witness, there is nothing to prevent him from securing the ends of justice by removing the prisoner from the presence of the witness. During the hearing of this appeal, counsel for the appellant appears to have submitted that in ancient times at assizes some prisoners had behaved so badly that they had to be tied to the dock with chains and straps, apparently making the point that prisoners who misbehaved in Court were, in spite of this, not removed, in application of the principle that in cases of felony the prisoner must stand in the dock to be tried (these cases appear to have been referred to in Stephen's Digest of Criminal Procedure, Art. 302, not available in this Court). But learned counsel incidentally mentioned the case of Mary Browne, (70 J. P. 472, 1906) tried at the Central Criminal Court before the Recorder, where the prisoner was removed and tried and sentenced in her absence after two previous attempts to try her had all ended in her creating such an uproar in the dock that it was impossible for the trial to proceed in her presence. In the light of the cases of *Berry* and *Mary Browne* I feel I have authority for the course I adopted. It may not perhaps be improper for me to mention here that this accused, Mwendwa s/o Muli, was tried by me at Nairobi under the Emergency Regulations and sentenced to death on 17th August, 1954, for

unlawful possession of a firearm. I understand that the sentence was confirmed on appeal but was later commuted to penal servitude for life by H. E. the Governor, I cannot remember this accused manifesting any sign of insanity then. I am told that he manifested none while in prison, prior to his escape, and. as I have said, that when he returned to prison after his appearances in the Court at Kisumu his behaviour became normal.

In Halsbury's Laws of England, 3rd ed., Vol. 10, p. 399, it is stated that: 'a prisoner indicted on a charge of felony must take his place in the dock and must remain in Court throughout the trial, unless he is removed for disorderly conduct. . . . A similar statement of the position is set out in *Archbold*, 33rd ed. at p. 189, para. 341: 'No trial for felony can be had except in the presence of the prisoner, and he must, it is said, stand in the dock to be tried... If he creates a disturbance, it is said that the trial may go on without his presence. . . . The absence of one of several persons who are accused together does not affect the validity of the conviction of those who appear; ... After a conviction of felony, the sentence cannot be passed in the absence of the prisoner'."