[1948] EACA 38

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill, C. J. (Kenya), Sir John Gray, C. J. (Zanzibar), and BARTLEY, J. (Kenya)

## REX, Respondent (Original Prosecutor)

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## DALPATRAM HARISHANKER MEHTA, Appellant (Original Accused) Criminal Appeal No. 148 of 1948

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

Criminal Law—Unlawfully buying raw gold—(Tanganyika) Gold Trading<br>Ordinance (Cap. 104), section 5 (1)—Evidence Accomplice—Police Trap— Corroboration—Observations of the Court of Appeal—Sentence.

It was admittedly a case of police trap. A witness Gurdiar Singh, was deliberately sent by the police to the appellant for the purpose of selling raw gold to him. The appellant was convicted of unlawfully buying raw gold contrary to section 5 (1) of the Gold Trading Ordinance and sentenced to six months^\* I. H. L., to pay a fine of Sh. 3,000 or a further six months' I. H. L. in default.

On a second appeal to the Court of Appeal, the points raised on behalf of the appellant were that Gurdiar Singh and the police witnesses who arranged the "trap" were accomplices and that the evidence accepted as corroboration did not in law amount to sufficient corroboration of the evidence of an accomplice. The Court was referred to certain observations of Lord Goddard, C. J., in Brannan v. Peek (1947) 2 A. E. R. 573 and was invited to reverse its own previous decision in Habib v. R. 1 E. A. C. A. 191.

*Held* $(18-8-48)$ .—(1) Whilst sharing the view expressed in respect of police traps by the Lord Chief Justice in Brannan v. Peek, the Court has nevertheless still to consider what is the proper value to be given to evidence in a case in which the prosecution rely upon a police trap in order to obtain a conviction. If the evidence does in fact support a conviction it is the duty of the Court to uphold that conviction.

(2) That the observations of the Lord Chief Justice in Brannan v. Peek were purely obiter in a case stated to a Divisional Court of the King's Bench Division and could not be used by the Court of Appeal as a ground for holding that its earlier decision in Habib v. Rex was wrong.

Habib v. Rex. 1 E. A. C. A. 191 distinguished and approved; Parentis v. Rex. 4 T. T. L. R. 46 referred to and approved.

(3) That the question whether a witness, who has taken part in a police trap, needs corroboration depends upon (amongst other things) the character of the witness, the nature and extent of his participation in the acts of the accused and the motive so inducing him.

Indian Evidence Act, section 145, quoted; dictum of Edge, C. J., in Rex v. Ramasami Padayachi (1878), I. L. R. 1 Madras 394 quoted.

(4) That there was no misdirection in regard to the evidence corroborating Gurdiar Singh.

Appeal dismissed.

Appellant absent, unrepresented.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—This is an appeal from the judgment of the High Court of Tanganyika in its appellate jurisdiction upholding the conviction of the appellant by the Resident Magistrate, Chunya District, for unlawfully buying raw gold, not being a licensed dealer, in contravention of section 5 (1) of the Gold Trading Ordinance. As it is a second appeal, we cannot enter into questions of fact.

The Memorandum of Appeal raises the following questions:—

(1) That there is no evidence to show that the gold which is alleged to have been sold to the appellant was "raw gold" as defined in section 2 of the Gold Trading Ordinance.

(2) That the principal prosecution witness, Gurdiar Singh, and the police witnesses who arranged for this witness to sell gold to the appellant were all accomplices.

(3) That the evidence accepted by the courts below as corroboration does not amount in law to sufficient corroboration of the evidence of an accomplice.

(4) That the fact that the "trap" gold was not found in the possession or on the premises of the appellant is fatal to the conviction.

With regard to the first ground of appeal it is enough to say that the evidence of Mr. Palmer, Land and Mines Officer at Chunya, clearly shows that the gold was in fact raw gold. The witness refers to the gold as being "nuggets", a word which is defined in Webster's Dictionary as meaning "a lump; a mass, especially a native lump of precious metal; as, a nugget of gold". In addition, after testing this substance the witness issued a certificate, which was produced as an exhibit in the case. In that certificate the witness describes this substance as "alluvial gold".

In support of the second ground of appeal we have been referred to certain observations of Lord Goddard, L. C. J., in Brannan v. Peek (1947), 2 A. E. R. 572, at page 573. We have also been invited to reverse the previous decision of this Court in *Habib v. R.* (1934), I E. A. C. A. 191.

As a preface to our observations regarding this ground of appeal we should state that this is admittedly a case of a police trap in which the witness Gurdiar Singh was sent by the police to the appellant for the deliberate purpose of selling raw gold to him in contravention of the law. With regard to this we would respectifully agree in the expression of the hope that "the day is far distant when it will become a common practice in this country for police officers to commit offences for the purposes of getting evidence against someone", but, whilst sharing the view of the Lord Chief Justice in this respect, we have nevertheless still to consider what is the proper value to be given to evidence in a case in which the prosecution rely upon a police trap in order to obtain a conviction. However much individual members of this Court may disapprove of the methods employed to obtain a conviction in a particular case, if the evidence does in fact support a conviction, it is the duty of the Court to uphold that conviction.

In this connexion we would further point out that the observations of the Lord Chief Justice in Brannan v. Peek were purely obiter in a case stated to a Divisional Court of the King's Bench Division and cannot be used by us as a ground for holding that the earlier decision of this Court in Habib $v$ . Rex is wrong. In that case it was held on the evidence that the agent provocateur did not stand in need of corroboration. On the other hand, in the Tanganyika case of Parentis v. Rex (1937), 4 T. T. L. R. 46, Dalton, C. J., held that in view of the character of the two police decoys their evidence stood in need of corroboration. With both those decisions we respectfully agree. Each case of this description has to be judged upon its own facts. It is quite impossible to lay down any hard and fast rule on the subject. The question whether a witness, who has taken part in a police trap, needs corroboration depends upon (amongst other things) the character of the witness, the nature and extent of his participation in the acts of the accused, and the motive which induces the witness to participate in those acts.

Whilst there are certainly a large number of cases in which it would be very unsafe to convict upon the uncorroborated evidence of a police decoy, we are certainly not prepared to subscribe to the view that every witness who takes part in a police trap is a witness standing in need of corroboration. In this connexion it is not out of place to recall that, as section 145 of the Indian Evidence Act says, a conviction is not unlawful merely because it proceeds upon the uncorroborated testimony of an accomplice. As said by Edge, C. J., in Rex v. Ramasami Padayachi (1878), I. L. R. 1, Madras 394:-

"although as a general rule it would be most unsafe to convict on the uncorroborated evidence of an accomplice, such evidence must, like that of any other witness, be considered and weighed by the Judge who in doing so should not overlook the position in which the accomplice at the time of giving his evidence may stand and the motives he may have for stating what is false. If the Judge, after making due allowance for these considerations and the probabilities of the story comes to the conclusion that the evidence of the accomplice, although uncorroborated, is true and the , evidence, if believed, establishes the guilt of the prisoner, it is his duty to convict".

Similar remarks apply to the evidence of a person, who takes part in a police trap and who, it is to be observed, not infrequently stands on a higher plane than the ordinary accomplice.

Here, the learned Magistrate and the learned Judge of the High Court held that the only person standing in need of corroboration was the witness Gurdiar Singh and they were both certainly entitled so to hold.

With regard to the third ground of appeal, we are unable to find that either the learned Magistrate or the learned Judge misdirected himself in regard to the evidence corroborating Gurdiar Singh. By themselves the evidence that this witness said "Hodi" before entering the appellant's house and the evidence that, after he had entered, the appellant's wife came out and had a look to the right and left might be deemed to be purely equivocal and therefore of no great value as corroboration. But, as the appellant's advocate has had perforce to admit in in his written argument, the most important evidence in corroboration of Gurdiar Singh's story is the evidence that this witness had notes to the value of Sh. 265 on him after leaving the house, whereas he had only Sh. 5 on him prior to entering the house. We have been invited by the appellant's advocate to examine the evidence regarding these matters in detail and to hold that both Lower Courts reached a wrong conclusion in regard to this matter. Were we to entertain this invitation; we would be disturbing a finding of fact and that we are not empowered to do on a second appeal. This particular evidence was examined carefully and critically in the courts below and we are unable to say that either Court has based its finding of fact upon premises which are fallacious. It is enough for us to say that both the Courts below were entitled to hold on the evidence before them that Gurdiar Singh received sufficient corroboration.

The fourth ground of appeal raises a question of fact into which we cannot go. The failure of the police to discover the gold on the appellant's premises may possibly weaken the prosecution case, but it certainly does not destroy it. There was other evidence, which both courts below believed and were entitled to believe, which proved that Gurdiar Singh sold raw gold to the appellant.

Finally, we note that the Memorandum of Appeal alleges that "in all the circumstances of the case the sentence is too severe". That is a matter into which we cannot enter on a second appeal.

For the foregoing reasons this appeal is dismissed.