[1951] EACA 319

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and SIR HECTOR HEARNE, C. J.

# RÉX, Respondent

## KILDARE ROBERT ERIC DOBBS, Appellant

### Criminal Appeal No. 247 of 1951

(Appeal from decision of H. M. High Court of Tanganyika—Clifford Knight, J.)

The appellant, an Administrative Officer in the Tanganyika Government Service, was convicted by the Resident Magistrate at Iringa of (1) stealing by a person employed in the Public Service; (2) unlawful possession of Government trophies contra sections 45 (1) and 46 of the Game Ordinance; and (3) wilfully attempting to procure registration by a false pretence contra section 309 Penal Code. He was sentenced to three months' imprisonment with hard labour on each count, the sentences to run concurrently.

On appeal to the Tanganyika High Court heard by one judge sitting alone the three convictions were affirmed but the sentence imposed by the Magistrate on the stealing count was increased to 15 months' imprisonment with hard labour.

It was argued on the appellant's behalf that as regards the third count he could not make a pretence to himself as he held the office which under the Game Ordinance is charged with the business of registration.

Held $(21-12-51)$ .—(1) When the appellant attempted to register he was acting as a private individual and not as a District Officer.

(2) Whilst it was open to the prosecution to charge him with two offences he cannot be punished twice for the same act. The Magistrate was wrong in passing sentence both on the first and second count.

Magistrate's sentence on first and third counts restored and sentence on second count set aside.

Salter for appellant.

Sir James Henry, S. G. (Tanganyika), for Crown.

JUDGMENT (Delivered by NIHILL, President).—The appellant in this case is an Administrative Officer in the service of the Government of Tanganyika. He was convicted by the Resident Magistrate at Iringa, Tanganyika, of three offences. Firstly, stealing by a person employed in the Public Service, secondly of unlawful possession of Government trophies contrary to section 45 (1) and section 46 of the Game Ordinance, and thirdly of wilfully attempting to procure registration by a false pretence contrary to section 309 of the Penal Code. The Magistrate sentenced him to three months' imprisonment with hard labour on each count, the sentences to run concurrently. On appeal to the High Court of Tanganyika which was heard by a judge sitting alone the three convictions were affirmed but the sentence imposed by the magistrate on the stealing count was increased to fifteen months' imprisonment with hard labour. The learned Judge ordered that the sentences on the second and third counts should remain unaltered. The appellant has appealed to this Court against the judgment of the Appellate Court below both in respect of the conviction and the enhancement of sentence.

As we have already indicated at the hearing so far as this appeal relates to the convictions it must be dismissed. As the second Appellate Court we are concerned with questions of law only and we are not convinced that the alleged misjoinder of charges at the trial, if indeed it was a misjoinder at all, did in fact prejudice the appellant so gravely as to vitiate the convictions. We agree with the opinion of the learned judge in the court below that it is obvious that the reason why the appellant did not enter a defence to any of the three counts was because there was no possible defence open to him. Had he been able to answer the charge of unlawful possession of the tusks to the satisfaction of the magistrate the same answer must have cleared him of the stealing charge. It has also been argued that the third count was bad in law because since the appellant himself held the office which under the Game Ordinance is charged with the business of registration he could not make a false pretence to himself. We agree with Sir James Henry's answer on this point. When the appellant tried to set in motion the procedure which if it had been completed would have resulted in the registration of the tusks as his property he was acting as a private individual and not as a District Officer.

It is as regards the sentence imposed by the learned magistrate on the second count that we think an error was committed. Taking into account the official position held by the appellant it is evident to us that the charge of being in unlawful possession of game trophies must have failed had the prosecution not been able to prove an act of conversion. Put in another way it was the appellant's act of converting the tusks to his own use that put him into unlawful possession of the tusks, which being game trophies constituted a special offence under the Game Ordinance. This indeed is what the magistrate found and he was right in doing so. Whilst it was open to the prosecution to charge him with the two offences he cannot be punished twice for the same act. That is clear statutory law. (See section 21 of the Tanganyika Penal Code and the proviso to section 3.) Cases may often arise when it may be extremely difficult to determine whether two offences flow from the same act or omission but this it not one of them. The learned magistrate then should not have passed sentence on the appellant both on the first and the second counts.

We now come to the order made by the learned judge in the court below. He increased the appellant's sentence on the first count and affirmed the sentence on the second and third counts. He therefore fell into the same error as the learned magistrate and this order cannot stand. We therefore restore the order as regards sentence made by the court of first instance in so far as the sentences on the first and third counts are concerned but we set aside the sentence imposed on the second count. In effect then, the appellant will be set at liberty when he has served a sentence of three months' imprisonment with hard labour dating from the 21st September, 1951. We would add that during the hearing of this appeal we have listened to argument as to whether on a second appeal this Court has jurisdiction to hear an appeal against an enhancement of sentence ordered by a territorial Court of Appeal. In the circumstances of this case it is not necessary for us to rule on this point, and the answer to this question must await an occasion when the issue is relevant.