[1954] EACA 156

### ORIGINAL CRIMINAL.

# Before CRAM, Ag. J.

## THE QUEEN, Prosecutrix

$\boldsymbol{\nu}.$

# M'KAIRIAMA s/o M'IGAINE AND ANOTHER, Accused

#### Criminal Case No. 120 of 1954

Criminal Law-Criminal Procedure and Practice-Criminal Procedure Code, section 229—Failure to comply with—Magistrate taking into account extrajudicial statements of accused persons as preliminary inquiry not put in evidence by recording witness—Effect of—Criminal Procedure Code, section 236-Magistrate committing after being influenced by extra-judicial statement wrongly put in-Whether proceedings a nullity-Whether information could properly be preferred—English and Kenya procedure compared.

Before the close of the prosecution case at a preliminary inquiry, the prosecution intimated to the magistrate, that a magistrate who had taken extra-judicial. statements from the two accused persons, was not available but would be called as a witness at the trial. The committing magistrate then recorded that he had read the statements which he termed "confessions" but he did not show whether or not they had been read out to the accused. The two statements were then put in and formed part of the committal proceedings and the prosecution closed its case. The magistrate then ruled that there was evidence sufficient to put the accused persons on their trial and committed both for trial to the Supreme Court. Both statements contained admission of gravely incriminating facts.

*Held* $(6-9-54)$ —(1) The reading by the committing magistrate of extra-judicial statements alleged to have been made by the accused but not properly put in evidence by the testimony of the recording magistrate was contrary to the mandatory provisions of section 229 of the Criminal Procedure Code and was an incurable irregularity which vitiated the committal proceedings so that no information could properly be preferred<br>against the accused persons. The committal proceedings were a nullity.

(2) The failure to call the magistrate who recorded the extra-judicial statements which were wrongly put in must be held prejudicial to the accused who might have lost a possible chance of acquittal by reason of being depr Code. This prejudice in itself rendered the proceedings unlawful.

(3) Since the extra-judicial statements contained admissions of gravely incriminating facts by the accused persons, it was impossible to hold that the mind of the committing magistrate had not been adversely affected by the wrongful reading of the statements<br>to such an extent that he might not otherwise have committed the accused for trial in terms of section 236 Criminal Procedure Code: they had, therefore, lost a possible chance of acquittal, so that the committal proceedings must be held unlawful and of no effect.

Cases cited: R. v. Gee and others, 25 Cr. App. R. 198; R. v. Wharmby and others, 31 Cr. App. R 174

Compared: The Magistrates' Courts Rules, 1933; The Administration of Justice (Miscellaneous Provisions) Act, 1933, section 2.

Sanguinetti, Crown Counsel for the Crown.

Nene for both accused.

RULING.—The two accused were committed for trial under the provisions of part 8 of the Criminal Procedure Code. The committing magistrate observed all the requirements of the chapter until the last witness for the prosecution was called. a magistrate who, it was alleged, had recorded an extra-judicial statement taken from each one of the two accused persons. This witness was found not to be available and to be at a long distance from the subordinate court. The committing magistrate thereupon proceeded to read the two statements put in by the prosecutor which fact he recorded. He also ordered "Confession to be included in this record". He did not record if these statements were read out in open court and translated for the benefit of the acoused. The prosecution then closed its case. The magistrate recorded, "I consider sufficient grounds exist for committing both accused for trial". The accused were accordingly put on their defence and each elected to say nothing, reserved his defence and called no witnesses. When the case came up before this Court for trial, learned Counsel for the Crown most properly made the procedure adopted by the committing magistrate known to the Court and expressed doubts as to the validity of the proceedings before the lower court.

In my view, the provisions of the section 229 of the Criminal Procedure Code are mandatory and are of vital importance to the fair trial of accused persons. The committing magistrate is peremptorily required to take down in writing the statements on oath of those who know the facts and circumstances of the case: the accused person has, as of right, a power to cross-examine the witnesses and it is mandatory on the magistrate to inquire of the accused whether he wishes to put any questions to the witnesses. It is also mandatory for the magistrate as well as the witness to sign the deposition, which first has to be read back to him.

The provisions of section 229 of the Criminal Procedure Code although fuller and more stringent are, substantially, the same as rule 5 of the Magistrates Courts Rules, 1925. It is settled law in England that it is of the utmost importance that there should be no deviation from these requirements. Leading cases are R. v. Gee and Ors. 25 Cr. App. R. 198 followed in R. v Wharmby and Ors. 31 Cr. App. R. 174. In those cases witnesses in the committing court had been examined from typed statements, copies of which were handed to the magistrate and clerk but not to the prisoners and nothing was taken down by the magistrate or clerk though each prepared statement was checked by the clerk and ultimately signed by the witness. It was held, on appeal, that these proceedings were so defective as to vitiate the committal for trial following thereupon and that no bill of indictment could properly be preferred against the prisoners by virtue of section 2 of the<br>Administration of Justice (Miscellaneous Provisions) Act, 1933, and the trial of the prisoners on an indictment was held to be a nullity.

Those cases, although not binding upon this Court, having been decided upon other statutes, are very apt to assist in interpreting the provisions of section 229 of the Criminal Procedure Code which section is in pari materia with rule 5 of the Magistrates Courts Rules, 1933.

Section 236 of the Criminal Procedure Code enacts that if the court considers that the evidence is sufficient to put the accused person on his trial the court shall commit him for trial to the Supreme Court. In the present instance it is impossible to say that the magistrate's mind has not been influenced by the production in the committal proceedings of two extra-judicial statements amounting in the opinion of the magistrate to confessions not testified by the recording witness.

In my judgment, the failure to call the magistrate who recorded the statements as a witness, the admission of the statements and their inclusion in the record (it may be without even reading them aloud to be translated), must be held prejudicial to the accused persons. They have lost their opportunity to crossexamine the witness. This failure may have lost the accused a possible chance of acquittal.

On these grounds, in my respectful view, the committal proceedings are so<br>defective as to vitiate the committal for trial following upon them and the present information cannot properly be preferred against the prisoners. The committal proceedings are a nullity. The accused are discharged. There will require to be a fresh preliminary inquiry.