[1943] EACA 39

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR HENRY WEBB, C. J. (Tanganyika), SIR NORMAN WHITLEY, C. J. (Ugandà) and McRoBERTS, J. (Tanganyika)

#### **REX, Respondent (Original Prosecutor)** v.

# (MRS.) MARIA ALINE ATKINSON, Appellant (Original Accused) Criminal Appeal No. 180 of 1943

#### Appeal from decision of H. M. Supreme Court of Kenya

Criminal Law-Perjury-Evidence-Evidence as to falsity of statement-Ouantum of evidence—Record of Proceedings, in which alleged False Statement made—Judge's note—Judgment 'should not be included—Res inter alios acta-Penal Code (Kenya), Section 107-Criminal Procedure Code (Kenya), Section 199—Criminal Procedure Rules, 1930 (Kenya)— $R$ . v. Nunes 16 K. L. R. 126 applied.

The appellant was charged with having committed perjury in that in a civil action she swore that she had seen L sign two documents. At her trial L swore that he had not signed these two documents, and an expert on handwriting gave evidence that the signatures upon them were not, in his opinion, in the handwriting of L. The whole of the record of the proceedings in the civil action was put in evidence.

#### Held (9-11-43).-(1) That Section 107 of the Penal Code (Kenya), which provides that "a

person cannot be convicted of committing perjury ... solely upon the evidence of one<br>witness as to the falsity of any statement alleged to be false", is satisfied if one witness swears to the falsity of the statement and there is, in addition, other evidence which corroborates that witness: see $R$ . $\nu$ . *Threlfall* 10 Cr. App. R. 112.

(2) That, having regard to Section 199 of the Criminal Procedure Code (Kenya) and the Criminal Procedure Rules, 1930 (Kenya), the terms of the alleged false statement were<br>properly proved by the production of the Judge's note of the evidence of the accused,<br>which formed part of the record of the civil a not to have been put in evidence— $R$ . v. Nunes 16 K. L. R. 126 applied. Appeal dismissed.

#### Appellant absent, unrepresented.

## Smith, Acting Solicitor General (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).—The appellant appeals $\mathcal{L}^{\mathcal{L}}$ against her conviction and sentence upon two charges of perjury alleged to have been committed by her in her evidence in a civil case (No. 180/1941) in the Resident Magistrate's Court, Kisumu, between Francis Paul de Lima and the<br>Londiani Hotel. The memorandum of appeal raises only two points specifically, (1) that the evidence of Superintendent Poppy was not sufficient as the evidence of a second witness on which to base a conviction for perjury, and (2) that the whole of the file of the Civil Case was wrongly admitted in evidence and inspected by the jury, to the prejudice of the appellant, but we have, particularly in view of the second ground of appeal, carefully considered the whole of the evidence. We have found ourselves somewhat embarrassed by the fact that the record contains no note of the arguments of counsel on either side, the only reference to the defence being the single sentence in the summing-up: "Mr. Burke has discussed the evidence very fully and you may think that there is a good deal in some of his arguments": we confess that it would have made our task easier if we had known what those arguments were. The importance of the summing-up containing an adequate presentation of the defence has been frequently emphasized by the Court ^aof Criminal Appeal, as, for example, in the cases of *Cohen v. Bateman*, 2 C. A. R. 208, Mills, 25 C. A. R. 138, and Cobbett, 28 C. A. R. 11. It may well be, however, that the summing-up was much more detailed than the note appearing in the

record would suggest, and it is to be observed that no objection has been taken to it as having been in any way inaccurate or inadequate.

In our opinion the first ground of appeal is based on a misconception of the meaning of section 107 of the Kenya Penal Code. That section says that the accused "cannot be convicted . . . solely upon the evidence of one witness as to the falsity of any statement alleged to be false", not that there must be two witnesses, each of whom swears specifically that the statement charged to have been made by the accused was false. In our opinion the requirements of the section are satisfied if one witness swears to the falsity of the statement and there is, in addition, other evidence which corroborates that witness; as it was put by the Court of Criminal Appeal in the case of *Threlfall* (10 C. A. R. 112), "there must be one witness and something else in addition". In the present case de Lima gave evidence that he had not signed the documents which, in the Civil Case, the appellant had sworn that she actually saw him sign, and de Lima's evidence was sufficiently corroborated by the evidence of Mr. Poppy (if the jury accepted it) that in his opinion, for the reasons that he gave in great detail, the signatures on the two documents were not in the handwriting of de Lima. In our opinion the learned Judge was perfectly correct when he directed the jury: "If you accept the evidence of de Lima and the expert opinion of Mr. Poppy that is sufficient to comply with the provisions of section 107".

With regard to the second ground of appeal we are of opinion that it was incorrect for the whole of the file of the Civil Case to have been made an exhibit. In England the "record" of the trial, which is put in to prove that the periury was committed in the course of a judicial proceeding, is somewhat different from what constitutes the record here; it does not contain, for example, the note of the evidence, nor the judgment, because the Judge, unlike a Judge here, is not bound to make any note of the evidence, nor to write out his judgment. For this reason the actual evidence given by the accused, which constitutes the alleged perjury, cannot be proved in England by the production of the trial Judge's notes, which are only admissible to refresh the Judge's memory if he is himself called as a witness. (R. v. Child, 5 Cox 197: R. v. Morgan, 6 Cox 107.) But here the situation is different; the effect of section 199 of the Kenya Criminal Procedure Code and the Criminal Procedure Rules, 1930 (which are preserved by section 394 $(1)$ is that the evidence of each witness is required to be taken down in writing and "forms part of the record". Similarly, since sections 168 and 169 of the Criminal Procedure Code require the judgment to be in writing, it must also be taken to form part of the "record" of the case. But though this is so the judgment in a Civil Case is, so far as regards criminal proceedings against a person charged with having committed perjury in that case, res inter alios acta, and inadmissible; see Woodroffe 9th Ed. 429, Taylor 11th Ed. §1693, and R. v. Nunes 16 K. L. R. 126. In such proceedings all that should be put in of the record of the Civil Case is the pleadings, the decree, any exhibits that are material to the criminal charge and the record of the evidence given by the accused, but not the record of the evidence of other witnesses, nor the Judgment. In the present case, however, no objection was taken by reason of the fact that the whole file of the Civil Case, including the judgment, was put in, and we are of opinion that even if the jury read the judgment, that could not have affected the result.

Looking at the evidence as a whole, and considering the startling difference between all the admitted signatures and specimens of the handwriting of de Lima, on the one hand, and the disputed signatures, on the other, it is impossible to say that the verdict of the jury was unreasonable or not such as was justified by the evidence. The sentence was not excessive in the circumstances. The appeal must therefore be dismissed.

\* Case reported by Sir Henry Webb, C. J.