[1940] EACA 12

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB, C. J. (Tanganyika)

## REX, Respondent v.

## EHSANULHAQ s/o KARIM BUX, Appellant Criminal Appeal No. 12 of 1940

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Observation on failure to disclose defence before trial—Direction. Appellant appealed from conviction and sentence on three counts for counter-

feiting coins, offering to sell counterfeit coin and for being in possession of implements for coining contrary to sections 337, $338(3)(a)$ and $338(3)(c)$ of the Penal Code.

The defence put forward for the first time at the trial was that counterfeit coins and coining implements had been "planted" on the appellant by a witness for the Crown who had himself been found in possession of counterfeit coin. The trial Judge commented on the fact that this allegation had not been made before the trial.

*Held* (22-2-40).—(1) That the cases of $R$ , $v$ . Whitehead (21 Cr. App. R. 23), $R$ . $v$ . Naylor (23 Cr. App. R. 177) and R. v. Littleboy (24 Cr. App. R. 192) decide no more than that in such circumstances as existed in each of them the fact that an accused person when before the committing magistrate reserves his defence as the law entitles him to do, does not amount to corroboration of the other evidence against him where corroboration is required.<br>(2) It must inevitably affect the mind of the tribunal by detracting from the force

of the defence, when an explanation of some fact, prima facie inculpatory of the accused, which in the circumstances must have been readily available to him, is not offered until some late stage of the proceedings.

(3) Observations upon the failure to disclose a defence at some date earlier than the trial have to be made with care and with fairness to the accused person in all the circumstances of the case.

Appeal dismissed.

Shapley for the Appellant. Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by WEBB, C. J.).—The appellant appeals against his con-<br>viction and sentence upon three counts, for counterfeiting coin, for offering to sell counterfeit coin and for being in possession of implements of coining, contrary to sections 337, 338(3)(a) and 338(3)(c) of the Penal Code. Admittedly the evidence upon which he was convicted was obtained by the agency of one Rahim Bux, who had himself been found in possession of counterfeit coin, but was told that no proceedings would be taken against him if he gave the police such information and assistance as would lead to the discovery of the coiner. Bux accordingly led the Police to the house of the appellant in Mombasa where there were found about 1,000 spurious coins, certain dies for coining, and a sum of Sh. 300 in notes, which were identified by their numbers as having been given to Bux shortly before for the purpose of buying counterfeit money from the appellant. In the circumstances the evidence of Bux, whose own liberty depends upon the conviction of the appellant, must be regarded with grave suspicion, and the Police unfortunately left him free from their observation for a period of about two hours between the time when, after having been searched, he had been seen to enter the appellant's house and the time when the Police themselves entered and found the incriminating articles.

The defence is that Bux took advantage of this opportunity to obtain the coins and dies and "plant" them in the appellant's house, and the appellant's wife and one Shah Mohamed gave evidence that he had gone out and returned with a bundle.

It is plain that the learned Judge clearly recognized the need for corroboration of the evidence of Rahim Bux, and he considered carefully the possibility of incriminating articles having been "planted" in the manner suggested by the defence.

In our opinion he seems to have attached too much importance to two pieces of evidence, that of the appellant's wife that she did not ask Rahim Bux what were the contents of the bundle which she said he carried in at about 10.30 a.m. and that of Shah Mohamed that he had never discussed the matter of his evidence with the appellant.

But these are points of only minor importance; the crucial features of the case, which were regarded by the learned Judge as supplying the necessary corroboration of the evidence of Rahim Bux, were the conduct of the appellant and, still more, his explanation of the Sh. 300 found in his house. At first he said that this was money which he was about to send to his brother in India, later he said it was money which he had received from Rahim Bux, as to Sh. 60 in repayment of a loan and as to Sh. 240 for the purpose of buying shoes for him in Mombasa. His explanation of these contradictory tales is that at first he wished to shield his guest, Rahim Bux, because he thought that the Police were after him. But even if this were so what possible harm would it have done Bux if the appellant had said at once that he had received the Sh. 300 from him? It is no crime to repay a debt, or to commission a friendly stone mason to buy one Sh. 240 worth of shoes. In the circumstances the only possible explanation of these two inconsistent stories is that at first the appellant thought that any explanation would suffice, and it was only when he discovered that the notes could be traced by their numbers to Bux that he had to think of another story that would explain why he had got them from Bux.

Mr. Shapley suggests that the appellant's second account is one that is both true and probable, because Bux would in the circumstances have been anxious to create in the appellant a feeling of confidence in himself by repaying his debt and by entrusting the appellant with Sh. 240. But, if the theory of the defence is correct, by the time the appellant came home Bux had already successfully procured the spurious coins and coining implements and planted them in the appellant's kitchen, and it only remained to give the signal to the Police and let the search commence. In such circumstances there was no need to create an atmosphere of confidence.

Then it is said that the learned Judge misdirected himself by attaching significance to the fact that the appellant did not until his trial make the case that the coins and coining implements had been planted in his house; and the cases of R. v. Whitehead (21 Cr. App. R. 23), R. v. Naylor (23 Cr. App. R. 177) and R. v. Littleboy (24 Cr. App. R. 192) have been relied upon. In our opinion these cases decide no more than that, in such circumstances as existed in each of them, the fact that an accused person when before the Committing Magistrate reserves his defence, as the law entitles him to do, does not amount to corroboration of the other evidence against him, where corroboration is required. But it must inevitably affect the mind of the tribunal by detracting from the force of the defence, when an explanation of some fact, *prima facie* inculpatory of the accused, which in the circumstances must have been readily available to him, is not offered until some late stage of the proceedings. $\triangleleft$ n R. v. Littleboy the Court said: "No doubt observations upon the failure to disclose a defence at some date earlier than the trial have to be made with care and with fairness to the accused person in all the circumstances of the case, but we do not assent to the general proposition that in no circumstances may comment be made upon the failure to disclose the defence in the Police Court. The observations of the Court in Naylor were never intended to go to that length."<br>In our opinion the evidence was amply sufficient and there was no mis-

direction on the part of the learned Judge. The sentence is not excessive. The appeal is dismissed.