[1941] EACA 81

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor) $\mathbf{v}$

## SAIDI NSUBUGA s/o JUMA AND JOSWA NANJIBWA s/o SEMEO. Appellants (Original Accused Nos. 3 and 4) Criminal Appeals Nos. 112 and 113 of 1941

Appeals from decision of H. M. High Court of Uganda

Criminal Law-Murder-Parties to offences-Principal and accessories-Accessories after the fact—Joint trial of alleged principal and accessories after the fact—Acquittal of alleged principal and conviction of accessories—Information of being an accessory after the fact to contain particulars—Trial—Joint trial-Uganda Criminal Procedure Code, section 135 A.

Appellants were charged with being accessories after the fact to murder. The information did not disclose any particulars of the manner in which these made themselves accessories after the fact but appellants must have known from the preliminary inquiry that they were alleged to have aided one Juma who was charged with the murder by helping him in the disposal of the body of the man. alleged to have been murdered. Appellants and Juma were tried jointly and Juma was acquitted of the murder.

*Held* (30-8-41),—(1) That an information for being an accessory after the fact to a felony should contain particulars of the manner in which the accused made themselves such: Failure to do so is not a vital defect if no embarrassment is thereby caused to the accused, e.g. where: the proceedings at the preliminary inquiry make clear what is alleged against him...

(2) That section 135_A of the Criminal Procedure Code (Uganda) permits the joint trial. of an alleged principal and accessories after the fact: If there appears to be any possibility of injustice or embarrassment to any of the accused the court should order separate trials.

(3) An accessory after the fact to murder may be convicted as such even though noone has been convicted of the murder.

(4) Persons who help to hide the body of a person knowing that person to have been murdered are accessories after the fact to the murder where as a natural and probable consequence of their acts it must be less likely that the authorities would trace the murderer and the result of that might be that he would escape punishment.

$\cdot$ A. B. Patel for the appellants.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The information upon which the appellants together with others were charged was as follows:—

"Statement of offences—Juma Kaigwa's/o Budala, murder contra section 193, Penal Code. . . . . Saidi Nsubuga s/o Juma, Joswa Nanjibwa s/o Semeo, accessory after the fact to murder, contrary to section 210 of the Penal Code. Particulars of offence—Juma Kaigwa s/o Budala on or about the night of 10th/11th April, 1941, at Nakawa . . . murdered one:<br>Sabani Kakwezi. . . . Saidi Nsubuga s/o Juma, Joswa Nanjibwa s/o Semeo on or about the night of 10th/11th April, 1941, at Nakawa were accessories after the fact to the murder of one Sabani Kakwezi."

The first observation that we have to make is that the information is imperfect in that it fails to give any particulars of the manner in which the appellants made themselves accessories after the fact to the murder of Sabani. The appellants were undefended and were not capable of taking any objection to the form of the information. The evidence revealed that they were alleged to have assisted Juma, who was charged with the murder, by helping him to dispose of the body of the murdered man. This defect in the information cannot however have in any way caused embarrassment to the appellants inasmuch as the proceedings at the preliminary inquiry made it perfectly clear what was alleged against them.

The learned trial judge was not satisfied with the evidence of the alleged stabbing by Juma who was accordingly acquitted but the evidence that the appellants Saidi and Joswa helped to hide the body was held to be sufficient and they were convicted as accessories after the fact to the murder of Sabani though the actual killer had not been ascertained. Interesting questions of law are involved.

Firstly was it proper to try alleged principal and accessories together? In England such a joint trial has been legal at least since the Accessories and Abettors Act, 1861. Here of course the question depends on the provisions of our Criminal Procedure Code.

Section 135 A permits the joint trial of persons accused of different offences committed in the course of the same transaction. This section is taken from the Indian Code and the courts there have held that if a series of acts are so connected together by proximity of time, community of criminal intent, continuity of action and purpose or by the relation of cause and effect as to constitute, in the opinion of the court one transaction persons accused of different offences committed in such series of acts may be tried together and that this would include such subsidiary acts as would make the co-accused particeps criminis or an accessory after the fact. See cases reviewed in Sohoni, 11th Edition, page 577. We accept that as a reasonable construction of the phrase "same transaction". The court has of course a discretion and will order a separate trial if there appears to be any possibility of embarrassment or injustice to the accused or any of them. There was no such possibility in this case and we consider that the joint trial was proper.

The second point raised is whether a conviction of accessories after the fact can be had when no person has been convicted of the murder. Such a conviction can clearly be had in England in view of section 3 of the Accessories and Abettors Act, 1861. There is nothing in our Code to the contrary and we can see no reason to hold that the position here is different from that in England. If it is sufficiently established that a murder has been committed by some one, even though that person has not been convicted or even found, then another person can be convicted as accessory after the fact to that murder provided the evidence supports such a conviction.

We accordingly are satisfied that the learned Judge decided both these points of law rightly.

The question remains whether the evidence supports the convictions. It is first necessary that the evidence should establish murder or manslaughter by someone. We think that it does. The medical evidence is that the deceased died from a stab wound twelve inches deep penetrating the diaphragm, stomach, liver and ribs. It is abundantly clear that that constituted unlawful killing and whoever inflicted such a wound must have intended at least grievous harm so that there was malice aforethought and the offence would be murder in the absence of any defence such as provocation or self-defence. There is no suggestion in the evidence of any circumstances capable of supporting any such defence.

The last question to be considered is whether the appellants' acts fall within the definition of accessories after the fact in section 381 of the Penal Code, which reads as follows: -

"A person who receives or assists another who is, to his knowledge," guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence."

The appellants were, on the evidence, present at the stabbing so that they knew the killer, whoever he was, was guilty of murder. The evidence shows that they helped to hide the body. They must be taken to have intended the natural and probable consequences of their act and to have realized that one such consequence of concealing the body must be to cause it to be less likely that the authorities would trace the offender and the result of that might be that he would escape punishment. We accordingly are of opinion that they were rightly convicted.

On the question of sentence we observe that the learned trial Judge considered the appellants to be peasants of a respectable type who no doubt failed to appreciate the gravity of their offence. They may also have been actuated to some extent by a desire to remove from the vicinity where they lived something which might get them into trouble with the police. Whilst that is not a complete excuse for what they did we feel that a sentence of two months would meet the case. We accordingly dismiss the appeals and reduce the sentences to two months' imprisonment with hard labour, the sentences to run from the date of conviction.