[1945] EACA 19

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOHN GRAY, C. J. (Zanzibar), MANNING, J. (Uganda), and PEARSON, J. $(Uganda)$

#### REX, Respondent (Original Prosecutor)

## YAKOBO ISAIRI BUSIGO s/o MAYEGO, Appellant (Original Accused)

#### Criminal Appeal No. 13 of 1945

### (Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Practice—Uganda Criminal Procedure Code, Section 268— Witness not called at Preliminary Inquiry called at trial—Omission to give statutory notice—No failure of justice—Uganda Criminal Procedure Code, Section 340.

At the trial of the appellant for murder a witness who had not previously given evidence before the committing magistrate was called. The statutory notice prescribed by Section 268 of the Uganda Criminal Procedure Code was not given to the defence before he was called as a witness, but no objection was raised at the trial to the witness giving his evidence. The evidence was of a purely formal nature. The appellant appealed.

Held $(24-4-45)$ —(1) As the evidence of the witness was of a purely formal nature the omission to give the statutory notice in no way prejudiced the appellant.

(2) Such an omission is curable under section 340, Uganda Criminal Procedure Code, when as in the present case it has not occasioned a failure of justice. Appeal dismissed.

Appellant in person.

Dreschfield, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—Additional evidence has been taken in accordance with the order made by this Court on 16th February, 1945. This evidence has elucidated the question which arose out of the evidence given at the trial as to the number of exhibits which were dispatched to and received by the Government chemist for the purposes of examination.

The grounds of appeal raise only one point of law. Mr. Mathias was called at the trial to depose that he received certain sealed exhibits from the Medical Officer and handed them to a police constable to take to the Government chemist. Mr. Mathias did not give evidence at the preliminary inquiry and the statutory notice prescribed by Section 268 of the Criminal Procedure Code was not given to the defence before he was called as a witness at the trial. It is not suggested that this is a case falling within the exception to the general rule mentioned in Section 268 and it is argued on behalf of the appellant that this evidence must, in the circumstances, be excluded from consideration.

The question to be decided is whether the omission to give the statutory notice is an omission in the proceedings which is eurable under Section 340 of the Criminal Procedure Code on the ground that it has not in fact occasioned a failure of justice. As the proviso to that section shows, in determining that

question, regard must be had to the question whether objection could and should have been raised to the omission at the trial. In actual fact no objection was taken at the trial.

Section 268 of the Criminal Procedure Code codifies the established practice and procedure of English Courts in regard to the admission of the evidence of witnesses who have not given evidence at the preliminary inquiry. As English decisions show, the object of that practice and procedure is twofold. The interests of justice require that relevant evidence should not be excluded merely because the witness, who can give it, was for some reason not called as a witness at the preliminary inquiry. At the same time, care must be taken to ensure that the admission of such evidence shall not place the accused person at an unfair disadvantage. He must not be unduly prejudiced or embarrassed in the presentation of his defence by having sprung upon him without reasonable notice evidence which, if forewarned and given time, he may be in a position to impeach or to rebut, but which, by reason of his being taken by surprise, is not at the time in in a position to impeach or to rebut.

In determining in this case whether the omission to give the statutory notice has or has not occasioned a failure of justice, it is necessary to consider what would have happened if the objection to the want of statutory notice had been taken at the proper time. The result would not have been that the prosecution would have been totally debarred from calling the witness at the trial. The proper course for the Court to have taken in such circumstances would have been to postpone the admission of the evidence until the notice prescribed by Section 268 of the Criminal Procedure Code had been given. Here the evidence of the witness was of a purely formal nature and, if the notice had been given, it is impossible to see what additional advantage the defence could have derived therefrom. It was clearly evidence which could be neither impeached nor rebutted and the only result of insistence on the strict fulfilment of the statutory condition precedent to the admission of the evidence would have been to postpone its admission until a later stage of the trial, when precisely the same evidence would have been given as was in fact actually given and it would have been impossible for the defence, by cross-examination or other evidence, to have thrown any additional light on the matter to which the witness deposed.

Every case of this description must, of course, be judged upon its own facts, but here it is perfectly clear to us that the omission to give the prescribed statutory notice regarding additional evidence of a purely formal character has not in fact occasioned a failure of justice.

The remaining grounds of appeal deal purely with questions of fact. The appellant was employed as a cook by the father of the deceased child on 20th September, 1944, his mistress made arrangements to replace him at the end of the month by the husband of her ayah. This came to the ears of the appellant, who, on the 24th September, told his master that the ayah was going to put medicine in the family's food so as to lay the blame on the appellant. His employer told him this was nonsense. In anticipation of his dismissal, the appellant went three days later to Mr. Maciel in search of new employment. He told the same story aboupt the ayah to Mr. Maciel. On the 30th September the ayah bought some meat. After eating some of it she left the remainder in a sufuria in her employer's house. In the evening she prepared the same meat and some maize to take to the house of one Ali. Before leaving the house she saw the appellant eating some of the maize but not the meat. When she asked him why he was not eating the meat, the appellant replied "I will not eat the meat. I have seen God". The ayah then took the meat and maize to Ali's house. After eating the meat she herself, her husband and Ali's wife were violently sick and recovered.

Next day the appellant handed over his duties to the ayah's husband. The previous day he had bought some soup meat for the family and put what was left over in a sufuria in the kitchen oven. The new cook made this meat into soup for the family. All the members of the household who partook thereof fell violently sick and the deceased child died the same night. Post mortem examination revealed all the indications of poisoning and subsequent chemical examination disclosed arsenic in the liver and intestines in a sufficient quantity to be a lethal dose, if taken through the mouth. Chemical examination also showed that there was a considerable quantity of arsenic in the remains of the meat and soup of which the family had partaken. On the morning of this fatality the appellant went to see Ali's wife, who was a complete stranger to him. He asked her what was the matter and she told him that she had vomited after taking food the previous night. He recommended her to take milk and eggs, which she accordingly did and recovered.

The same day the appellant went to take up his employment with Mr. Maciel. He left his things at the house and said he would begin work the next day. He did not do so and was eventually arrested at his house 26 miles away.

Evidence was given at the trial to prove that at the material time in this case a drum containing an arsenic solution for dipping hides was kept outside a store in the township and that this drum had a loose cover.

The defence to the charge was a categorical denial of the truth of the prosecution evidence.

The learned Chief Justice and the assessors believed the prosecution witnesses, and they were clearly fully justified in doing so. The learned Chief Justice considered the possibilities of accident and of the poison having been administered by some other person and rejected them. The only reasonable inference to be drawn from the evidence clearly and irresistibly was that the appellant had poisoned the soup meat of malice aforethought and with fatal consequences to the deceased.

This appeal is accordingly dismissed.