[1947] EACA 51

## COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and THACKER, J. (Kenya)

## REX, Respondent (Original Prosecutor) ν.

# MOHAMED ALLI, Appellant (Original Accused) Criminal Appeal No. 236 of 1947

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

Criminal procedure-Magistrate adjourning Court to go and obtain witness-Procedure not encouraged—S. 151 Criminal Procedure Code (Tanganyika)— No miscarriage of justice.

The appellant was convicted of common assault and sentenced to three months' imprisonment with hard labour. During the trial the Magistrate adjourned his Court in order to go and obtain a witness who he had reason to believe could give material evidence. The appellant appealed.

Held $(7-11-47)$ .—(1) A Magistrate has power to summon any person as a witness at any stage of a proceeding if it appears to him that the evidence is essential to a just decision of the case but that a Magistrate should himself leave the bench during the hearing of a case and himself seek out and bring to Court the witness he requires is certainly an unusual procedure and is not one that the Court of Appeal would like to see encouraged.

(2) Having regard to the unusual conditions under which the Magistrate was working and in the absence of any prejudice to the appellant the strange procedure adopted did not vitiate the proceedings.

Appeal dismissed.

Rex v. Bodmin Justices (1947) 1 A. E. R. 109 distinguished.

Morrison for the appellant.

#### Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by NIHILL, C. J.).—The sole point in this second appeal is whether the proceedings before the Magistrate should be declared a nullity because during the hearing he adjourned his Court in order to go and obtain a witness who he had reason to believe could give material evidence. The appellant in his memorandum of appeal has cited the maxim that justice must not only be done, but must manifestly be seen to be done, and the learned Counsel who argued this appeal has relied on the case of Rex v. Bodmin Justices (1947), 1 A. E. R. 109. The facts as to the action taken by the Magistrate are not in dispute and are fully set out in the judgment of the Court below. In addition, we have before us a report from Mr. R. S. Lloyd, the Magistrate in question, which was called for by the learned Chief Justice of Tanganyika, who dealt with the case in confirmation proceedings. As we have been told that the appellant's legal advisers have seen this report we are of the opinion that this Court can properly consider it. Mr. Lloyd's explanation of his action is as follows:-

"(a) On the conclusion of the evidence of P. W. 4 (on recall), I understood that there were no more witnesses for the prosecution.

(b) In my opinion at that stage a major issue to be decided was whether the evidence of the fourth witness was credible or not. If it was found to be credible it would support an alibi if made later by the accused. If it was not credible, I would then accept the evidence of the other P. W.s as credible, subject to any evidence the accused or his witnesses might give.

(c) The evidence of trolley-boy Saidi (fourth witness) consisted largely of details concerning the opening of a section of railway line and the movement of trains. It was obvious that 'best evidence' was obtainable on this matter (viz., from the station-master at the railway station), and should therefore be made available to the Court.

(d) I did not know the names of the various forms and registers kept at a railway station, and I realized that the station-master would wish to refer to such forms or registers before giving evidence in Court. In view of this and that there were no other Court officers with me at the time. I considered it most expeditious that I should proceed to the station myself to explain to the station-master that he was required to give evidence concerning the movement of trains and trolleys during the period that had been mentioned in the evidence by the fourth witness. Accordingly I did so, and waited in the station till the station-master had gathered his papers; after which he accompanied me back to the Court and gave evidence. The registers, etc., were not put into Court as exhibits as they were merely written records to which the witness was entitled to refer to whilst giving evidence.

(e) The station is situated about half a mile from where the Court was sitting."

The learned Judge who heard the appeal in the Court below has dealt very fully with the point now before us and we agree generally with his conclusions. A Magistrate has, of course, the power to summon any person as a witness at any stage of a proceeding if it appears to him that the evidence is essential to a just decision of the case (section 151 Tanganyika Criminal Procedure Code). That the Magistrate should himself leave the Bench during the hearing of a case and himself seek out and bring to Court the witness he requires is certainly an unusual procedure and is not one that this Court would like to see encouraged. We must, however, take into account the conditions under which the Magistrate was working. There was no prosecutor and no police officers were present to assist him. He was a Third-class Magistrate, and as a District Officer he was no doubt charged with multifarious duties which may even have included the marshalling of witnesses and the sifting of statements prior to prosecution. That this is by no means an ideal state of things this Court is fully aware, but in a territory so large as Tanganyika where some areas are quite unpoliced it is impossible to expect that sharp and rigid demarcation between administrative and judicial functions that one would like to see. Nevertheless, if we thought that in the present case the appellant was prejudiced by the Magistrate's action or could have thought that he was so prejudiced we should not hesitate to intervene. We agree with the observation of the learned Judge in the Court below that in the absence of any evidence or suggestion that the Magistrate told the station-master what to say it is impossible to believe that either the appellant or anyone else in the Court was under the impression that the Magistrate had improperly influenced the witness so that a miscarriage of justice had been brought about by the Magistrate's action in going himself to fetch the stationmaster. This case is distinguishable from Rex v. Bodmin Justices (supra) because the evidence of the station-master was given in open Court in the presence of the accused who had a full opportunity to cross-examine. The accused did cross-examine, but he never suggested to the witness that the evidence given was the outcome of instruction or suggestion made to him by the Magistrate. In. Rex v. Bodmin Justices the essence of the failure of apparent justice was that the Magistrates who were considering sentence at the time listened in their chambers to something about the accused's character, either good or bad, on which the accused, because he was not there, could make no reply. We uphold the judgment of the Court below and dismiss this appeal.

$\overline{a}$