[1955] EACA 243

### ORIGINAL CRIMINAL

# Before SIR KENNETH O'CONNOR, C. J.

### THE OUEEN. Prosecutrix $\mathbf{v}$ .

# HAROLD WHIPP AND CHAUDHARY MOHAMED SHARIFF, Accused

#### Criminal Case No. 138 of 1955

Criminal law—Conspiracy—Fraudulent false accounting—Evidence—Indian Evidence Act, 1872, sections 14 and 15—Admissibility of evidence of other transaction not charged—Whether other transaction must amount to criminal act—Whether evidence admissible until *prima facie* case made out—Whether admissible to rebut possible defence of innocent mistake or accident.

Both accused were charged with counts of conspiracy to defraud and the first accused was also charged with counts of fraudulent false accounting. All five charges related to episodes which took place in 1953. The prosecution sought to adduce evidence of a similar offence by the first accused in 1955. To this evidence the defence objected.

Held (15-11-55).—(1) It is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered<br>by the information for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being charged.

(2) On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged were designed or accidental or to rebut a defence which would otherwise be open to the accused. The words "or to rebut a defence<br>which would otherwise be open to the accused" include a defence of innocent intention and absence of *mens rea*.

(3) The prosecution may adduce all proper evidence which tends to prove the charge and need not wait and withhold evidence until after the accused has set up a specific defence which calls for rebuttal.

(4) The defence of the first accused foreshadowed in the instant case was innocent intention and mistake. Accordingly, evidence regarding the similar transaction in 1955 was admissible to rebut that defence.

$\mathcal{L}_{\mathcal{L}}$

(5) In addition, where the gist of the offence charged is fraud, intention, is material, and evidence of other similar offences may be given to prove the intent. The similar acts to be proved may have been committed before or after the offence charged; but they must be similar transactions and so connected with the offence charged as to form part of the evidence on which it is proved; they must not merely tend to show a general fraudulent disposition.

(6) If and when there was evidence to go to the jury of conspiracies and fraudulent false accounting in 1953, then evidence of the similar transaction in 1955 would be admissible.

Cases cited: R. v. Baird, (1915) 11 Cr. App. R. 186; Makin v. Attórney-General for<br>New. South Wales, (1894) A. C. 57 P. C.; Maxwell v. Director of Public Prosecutions,<br>(1935) A. C. 399 H. L.; Noor Mohamed v. R., (1949) A. C. 18

Havers, Crown Council, for the Crown.

Stephen for first accused.

Mangat, Q. C., with Akram, for second accused.

RULING.—Accused No. 1 was at all material times the Water Engineer or Acting Water Engineer to the City Council of Nairobi. Accused No. 2 is a member of a firm who had contracts from the City Council for excavation for pipe lines.

Both accused are charged with two counts of conspiracy to defraud the City Council, and accused No. 1 is charged with three further counts of fraudulent false accounting. The case for the prosecution is, in brief, that in pursuance of an agreement between the two accused, the first accused certified payments as due to the second accused's firm for the excavation of hard rock, which he knew to be greatly in excess of the amount which had really been excavated, and thereby procured excessive payments to be made by the City Council to the contractors. The prosecution allege that this was done fraudulently and not as a result of an honest mistake in estimation by accused No. 1.

All five charges relate to episodes which took place in 1953 in respect of twopipe-laying projects then in course of construction.

The prosecution now seek to adduce evidence that a payment certificate (No. 2 of 1955) in favour of the second accused's firm for excavation in 1955 of rock in other projects (of which one was situated at Mtoni) was signed and submitted by the first accused in 1955: that this was suspected and a check was ordered, that the result of that check showed such a discrepancy between the figure of excavation certified by accused No. 1 and the figure found after checking, that past transactions also came under scrutiny, and that, in this way, the 1953 transactions became the subject of charges. The prosecution seek to adduce detailed evidence of the 1955 payment certificate and the exaggerated quantities it is said to have contained.

$\mathbf{1},\ldots$

On payment certificate No. 2 of 1955 being tendered, Mr. Stephen, for the first accused, objected to its admission in evidence, on four grounds:

- (1) that evidence of other transactions not charged could only be admitted if they were shown to be similar and these were not; - (2) that evidence of similar transactions could only be admitted if those transactions amounted to criminal acts, and that the prosecution were not alleging that the submission of the 1955 payment certificate was a criminal act or there would have been a charge in respect of it and that in fact it was not a criminal act. As authority, he cited $R$ . $v$ . Baird, (1915) 11 Cr. App. R. 186; - (3) that, in any event, evidence of the 1955 transaction could not be admitted until after a *prima facie* case had been made out on the 1953 transactions charged; and - (4) that even if the 1955 transactions were similar to the 1953 transactions and there was a *nexus* between them, the Court should, in the exercise of its discretion, exclude the evidence of the 1955 transactions as being highly prejudicial to the accused and of small probative force.

Mr. Mangat for the second accused also objected to evidence of the 1955 transactions being admitted on the grounds that payment certificate No. 2 of 1955 was entirely the act of the first accused and that evidence of irregularities in it was not admissible against the second accused, at least until the conspiracy between the two accused had been established or prima facie proof of its existence had been given.

Mr. Havers, for the Crown, submitted that evidence of the 1955 transaction was admissible to rebut a defence which might be open to the accused of innocent mistake or accident in the 1953 estimates of excavations. As regards Mr. Stephen's second submission, based on Baird's case, Mr. Havers argued that the 1955 transaction was a criminal act and a charge could have been framed in respect of it. As regards Mr. Mangat's submission, Mr. Havers argued that the evidence was admissible at this stage against the first accused on the last three counts and there had been no application to sever or to have a separate trial.

I am of opinion that if and when evidence has been led sufficient to go to the jury on the counts charged in the Information, all of which relate to the year 1953, then evidence of a similar transaction in 1955 will be admissible, under sections 14 and 15 of the Indian Evidence Act, to show the existence of a state of mind—the presence or absence of *mens rea* on the part of the first accused and to rebut a defence of mistake or accident.

Monir in his commentary on sections 14 and 15 of the Indian Evidence Act (3rd edn. at page 110) says "In criminal law mens rea or criminal intent being an important test of criminality, the state of mind of the accused in doing an act is almost invariably an important ingredient of the offence charged against him". At pages 116, 117 the learned author cites the well-known case of Makin v. Attorney-General for New South Wales, (1894) A. C. 57 P. C. and says that the rule in India is similar to the rule there enunciated.

In Makin's case Lord Herschell said: -

"It is undoubtedly not competent for the prosecution to adduce evidencetending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried." (Makin v. Attorney-General for New South Wales (supra) at page 65. See also Maxwell v. Director of Public Prosecutions, (1935) A. C. 309, H. L. Noor Mohamed v. R., (1949) A. C. 182, P. C.)

#### Lord Herschell continued: -

"On the other hand, the mere fact that the evidence adduced tends." to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defence which would otherwise be open to the accused."

The words "or to rebut a defence which would otherwise be open to the accused" include a defence of innocent intention and absence of mens rea. (Noor Mohamed v. R. (supra) at page 191; R. v. Sims, 31 Cr. App. R. 158, at. page 165; Harris v. Director of Public Prosecutions, (1952) 1 A. E. R. 1044, H. L. at page 1047.)

The prosecution may adduce all proper evidence which tends to prove the charge and need not wait and withhold evidence until after the accused has set upa specific defence which calls for rebuttal (Harris' case supra at page 1047).

So far as can be gathered from his statements to the police, the defence of the first accused may be that he had an innocent intention and made mistakes because (1) the estimation of rock was difficult in that it had often to be done after the trench was back-filled, perhaps with the rock on top of the filling. there was no efficient supervision and the quantities were necessarily a very rough estimate: accordingly, while he may have been negligent he was not fraudulent; and (2) that a "lenient" estimation of rock was made by him to compensate the contractors for unduly low rates.

I think that the evidence regarding the 1955 payment certificate would be admissible to rebut the defence foreshadowed in (1) above—a defence of mistake and innocent intention.

There is another line of English cases (rather similar to section 15 of the Indian Evidence Act) which establish the proposition that where the gist of the offence is fraud, intent is material, and evidence of other similar offences may be given to prove the intent ( $R$ , $\nu$ , Simmonds, 2 Cr. App. R. 303). The similar acts sought to be proved may have been committed before or after the offence charged (R. v. Mason, 1914) 10 Cr. App. R. 169; R. v. Armstrong, (1922) 2 K. B. 555, C. C. A.) but they must be similar transactions and so connected with the offence charged as to form part of the evidence on which it is proved. They must not merely tend to show a general fraudulent disposition $(R. v. Mason)$ (supra)). Baird's case (supra) cited by Mr. Stephen is in this category. The reason for the rejection of the evidence in that case was that the offences were not similar. In the instant case I think, judging $b_y$ the depositions, that the transactions were similar and that there is a sufficient *nexus* to make evidence of the 1955 transaction admissible. The parties are the same, the modus operandi alleged is the same and it was the 1955 transaction which led to the discoveries and charges relating to 1953. If *Baird's case* does decide (as Mr. Stephen submits and the headnote would lead one to suppose) that similar transactions cannot be given in evidence unless they amount to criminal acts (which would be a remarkable result, since prejudice to the accused is the basic reason for rejection of this sort of evidence) then I agree with Mr. Havers that the 1955 transactions might have been the subject of criminal charges. "Criminal offences" in the headnote and "other crimes" in the passage from Makin's case (supra) to Baird's case quoted above cannot mean more than actions which might have been the subject of criminal charges. I think that R. v. Boothby. (1933) 24 Cr. App. R. 112 is distinguishable. In that case the parties to the offence charged and to the subsequent similar act were not the same. Moreover, it is doubtful whether the attempt in *Boothby's case* to differentiate between prior and subsequent similar acts would now be considered good law, in view of the apparent approval by the House of Lords in Harris v. Director of Public Prosecutions (supra), of the cases of R. v. Smith, (1915) 84 L. J. K. B. 2153, and R. v. Armstrong (supra).

Evidence of the 1955 transactions would, I think, be admissible under this line of cases specifically dealing with fraud but I prefer to rest my decision on the principle that the evidence would be admissible to show intention and system and to rebut a defence open to the accused of innocent intention and accident.

If and when there is evidence to go to the jury of conspiracies and fraudulent false accounting, in 1953, then evidence of the similar transaction in 1955 will be admissible. I do not think that this is a case in which the interests of justice. make it desirable that, in exercise of my discretion, I should exclude that evidence: (see Harris v. Deputy Public Prosecutor (supra) at page 1048, citing Noor Mohamed's case (supra).

I agree, however, with Mr. Stephen that detailed evidence of the 1955 transactions (except evidence to the effect that as a result of a payment certificate submitted in 1955 a check was directed on the 1953 transactions) cannot be admitted as against the first accused until evidence has been led as to the 1953 transactions charged.

I also agree with Mr. Mangat that evidence relating to possible irregularities committed by the first accused in payment certificate No. 2 of 1955 cannot be given as against the second accused until there is some evidence of the conspiracies -charged. This would not, however, prevent the evidence being given against the first accused.

The ruling, therefore is, that detailed evidence of the similar 1955 transactions will be admissible if and when evidence to go to the jury has been adduced of the 1953 offences charged.

It remains only to say that I do not know (I assume that there was some reason) why if it was desired to lead evidence as to the 1955 transaction a count was not framed in respect of it, instead of leaving the matter obviously open to objection and to be decided on a difficult point of law after the expenditure of a great deal of time on argument.