[1950] EACA 430

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal, and LAW, Ag. J. (Tanganyika)

## (1) NURDIN ALI RHEMTULLA and (2) RHEMTULLA MERALI JIWANI. Appellants (Original Accused)

## REGINAM, Respondent

## Criminal Appeal No. 443 of 1955

(Appeal from the decision of H. M. High Court of Tanganyika, Abernethy, J.)

Evidence—Accomplices—Corroboration—Tanganyika Criminal Procedure Code, section 181—Eastern African Court of Appeal Rules, 1954, rule 36 (3) (d).

The appellants had been convicted of stealing on the evidence of witnesses who were all participating in the commission of the offence and were accordingly all treated by the Judge as accomplices.

*Held* (17-12-55).—(1) That the degree of corroboration of accomplices' evidence may vary.

(2) That the Court had relied on three items of corroboration but only one of the three items implicated each of them.

(3) That as far as the first appellant was concerned that corroboration was cogent but it showed only that the second appellant was a receiver of the stolen property and not that he had stolen it.

Observations on preparation of the record.

Appeal of first appellant dismissed.

Conviction of second appellant substituted by a conviction for receiving.

Cases referred to: Davies v. Director of Public Prosecutions, (1954) A. C. 378 H. L.; Faqir Singh v. The Emperor, (1939) A. I. R. 429 (Lah.); Taibali Mohamedbhai v. The<br>Queen, 10 E. A. C. A. 60; R. v. Muriu and others, 22 E. A. C. A. 7.

O'Donovan and Dastur for appellants.

Sir James Henry, Q. C., S.-G., for respondent.

LAW, Ag. J.—The two appellants, Nurdin Ali Rhemtulla and Rhemtulla Merali Jiwani, were convicted of stealing 149 bags of coffee, valued at Sh. 114,000 by the High Court of Tanganyika on 12th September, 1955. Against these convictions they now appeal.

It is not now in dispute that on or about 26th November, 1954, a railway wagon containing coffee was broken into at Bahi Station and 149 bags of Kivu coffee, originating from the Belgian Congo, were stolen. The crime could not have been committed without the complicity of the station staff, and the stationmaster has already been convicted and sentenced for the part he played in it. All the eye-witnesses called by the Crown were either members of the station staff or employees of the first appellant; all admittedly knew or must have known that they were participating in the commission of a criminal offence, and all were accordingly treated by the trial Judge as accomplices. It is not suggested that the learned trial Judge failed adequately to warn himself that although he could convict on this evidence it would be dangerous to do so unless it were corroborated in some material particular or particulars implicating the accused persons: Davis v. D. P. P., (1954) A. C. 378 H. L.

Mr. O'Donovan for the appellants has substantially confined his argument to a submission that there was not sufficient corroboration of the evidence of Ramadhani and Omari, the only two witnesses who identify the first appellant as having taken part in the stealing of the coffee; and, in the case of Ramadhani. who implicates the second appellant at a later stage in the history of this case. Ramadhani was a turnboy employed by the first appellant, and Omari a pointsman employed by the Railways Administration.

It is clear that Omari was not a completely truthful witness in that he denied taking any part in the commission of the crime, whereas there is evidence that in fact it was he who unlawfully opened the door of the wagon containing. the coffee. Ramadhani was also unsatisfactory because, although he had originally made a statement implicating both accused, he chose at the preliminary inquiry to say that he knew nothing at all about the case and refused to sign his deposition, for which behaviour he was committed to prison by the Magistrate holding the inquiry. In prison he was seen by police officers, who asked him why he had altered his story. When the inquiry was resumed he was admonished and warned by the Magistrate and then gave evidence on the lines of his original statement, as indeed he did at the trial.

Mr. O'Donovan has argued that these two men are representative of the worst type of accomplice, and that their evidence requires stronger corroboration than in the case of ordinary accomplices, and that the learned trial Judge did not specifically address his mind to the question that they were accomplices of the worst type, so that he accepted as constituting corroboration particulars which in the circumstances of this case were not sufficient. In this connexion our attention was drawn to Sakar's Commentaries on the Indian Evidence Act, 9th ed., pp. 1092-1093, and to the case of Faqir Singh v. The Emperor, (1939) A. I. R. 429 (Lahore), which authorities support the proposition that the amount of corroboration required in the case of accomplices may vary, and that an accomplice who changes his story or whose credibility is otherwise strongly suspect needs to be strongly corroborated.

It is true that Ramadhani has not been consistent but he explained his behaviour at the preliminary inquiry by saying that the first appellant, hearing he had made a statement to the police, warned him to deny all knowledge of the crime when he gave evidence. He says that he agreed to this because he was afraid of the first appellant. This explanation was accepted as true, and believed both by the Magistrate and the learned trial Judge, who had the advantage, denied to us, of being able to study his demeanour. Ramadhani was therefore not a man who gave conflicting accounts of what happened because of a natural propensity to tell lies, but because he was told what to do by his employer and complied out of fear. As for Omari, it is not surprising that an otherwise truthful accomplice should seek to disassociate himself from the actual commission of the crime and to this extent give evidence which is not altogether truthful.

We accept the proposition that the degree of corroboration required may varý, but, in our opinion, Ramadhani and Omari do not fall within any class of accomplice who may be described as so depraved or unworthy of belief as to require a higher degree of corroboration than that which is usually required in the case of accomplices. The trial Judge was satisfied that their evidence was substantially true, and, subject to the ordinary rule of caution as to corroboration being applied, it was open to him to accept and act upon their evidence.

The practice in cases of this type is conveniently summarized in the judgment of Wilson, Ag. C. J. (as he then was) in the case of Taibali Mohamedbhai v. The Queen, 10 E. A. C. A. 60, as follows:-

"What is required is that there should be independent testimony corroborative of the evidence of the accomplice in some material particular implicating the accused or tending to connect him with the crime.'

The learned trial Judge correctly directed himself as to this requirement and proceeded to point out the particulars which in his opinion provided the necessary corroboration. These were: (1) the finding of coffee beans at a point at Bahi Station, where one would expect to find them if Ramadhani's story was true; (2) the fact that remnants of burnt sacks, string and coffee beans were found at a place pointed out by Ramadhani as being the scene of the re-bagging of the coffee by the two appellants and of the destruction by burning of the original containers; and (3) the discovery of three coffee beans identified as of Kivu origin in the first appellant's lorry within a few days of the commission of the crime.

Mr. O'Donovan has pointed out, rightly in our opinion, that items (1) and (2) do not implicate the first appellant personally, but are merely confirmatory of the general truth of the accomplices' evidence. He concedes that item (3) may amount to corroboration but claims that it is insufficient, especially as the search of the first appellant's lorry was carried out in his absence. Similarly, items (1) and (3) cannot be said to provide corroboration implicating the second appellant, although item (2) could amount to corroboration as the place where the coffee was re-bagged and the original containers destroyed was a store in a remote country district occupied at that time by the second appellant, and of which he kept the key.

Mr. O'Donovan also complains that the learned trial Judge considered the question of corroboration with reference to the two appellants jointly instead of considering the question with reference to them separately. He says that had he considered the question with reference to the two appellants separately he might have come to the conclusion that in respect of neither of them was the corroboration sufficient. The passage upon which this argument is founded is a summary of findings at the conclusion of a long judgment and we do not think that it necessarily imports the inference that the Judge did not in his mind separately consider the case of each appellant.

There was corroborative evidence of the kind and degree required as against each appellant in the circumstances of this case and we do not consider that any case has been made out for either appellant which would justify our reversing the learned trial Judge's findings in that behalf.

So far as the first appellant is concerned, this is sufficient to dispose of his appeal.

The position of the second appellant, however, is complicated by the fact that he was not present when the coffee was actually removed from the wagon. At the highest the case against him is that the stolen coffee was taken immediately to his premises, at which he himself was present, and there transferred from its original containers to different containers. There is evidence that the second appellant took part in the re-bagging process and in the destruction of the old containers.

Mr. O'Donovan argues that at the most the evidence establishes that the second appellant was an accessory after the fact to the stealing and he has referred to the recent judgment of this Court in $R$ . $v$ . Muriu and others, 22 E. A. C. A. 417, to the effect that, on a charge of murder, a conviction for being an accessory after the fact cannot be substituted under section 181 of the Criminal Procedure Code of Tanganyika. Mr. O'Donovan argued that, in the absence of any evidence of a preconcerted plan between the two appellants, the second appellant's conviction for stealing could not be sustained, that he was not an aider and abettor within the meaning of section 22 of the Penal Code as his connexion with the theft of the coffee did not commence until after the offence had been completed and that a substitution of the offence of receiving

could not be justified as the evidence indicates that the first appellant at all times retained possession of the stolen coffee, and that the second appellant at no time became joint possessor of it or assumed control over it.

The learned trial Judge does not indicate in his judgment precisely how he considered that the second appellant participated in the theft of the coffee. He merely says that this appellant's conduct showed that he was a participant. With respect, we are unable to agree: so far as the evidence goes the theft was complete before the second appellant came upon the scene and, although it is a fair inference from the facts that there was a prior arrangement to take the stolen coffee to the second appellant's store, we do not think that this arrangement would make the second appellant an aider and abettor of the theft. We think, however, that the facts proved show that he was a receiver. The coffee was taken straight to his store and left there while the first appellant returned to Dodoma to get the new bags into which the coffee was to be put. During this period the second appellant had sole control of the store and of the coffee, which he must have known had been recently stolen. On the return of the first appellant the second appellant actively assisted in disposing of the stolen property by transferring the coffee from the original bags to the new ones, and also helped to destroy the old bags. It is not necessary to show that a receiver has had exclusive possession of the stolen goods: it is sufficient that he has had joint possession or exercised joint control with the thief. We consider that the second appellant should have been convicted of receiving and we substitute a conviction for that offence. The sentence passed on the second appellant is appropriate to the substituted conviction and will stand.

Subject to this amendment of the conviction of the second appellant, these appeals are dismissed.

Before concluding this judgment we desire to draw attention to the waste of public time and money involved in the preparation of the bulky record in this appeal. The record contains, in addition to the notes of evidence of the trial Judge, his judgment and summing-up to the assessors, a transcription of the full verbatim shorthand note of the evidence running to 171 pages of the typescript and of the advocates' addresses running to 31 pages. We think that the inclusion of these last two transcripts was almost wholly unnecessary. It can only rarely occur that an appellate Court is referred to counsel's addresses and no reference at all was made to them during the argument on this appeal. As to the evidence, the only issue raised by the memorandum of appeal was that of corroboration of the accomplice witnesses, so that a great deal of the evidence led at the trial on other issues became irrelevant to the appeal. On the issue of corroboration, only two or three pages of the transcript of the evidence were referred to. We understood that the complete transcript was included in the record at the request of the advocates who were instructed to file the appeal, and it would seem that both they and the Registry overlooked the provisions of rule 36 (3) (d) of the Eastern African Court of Appeal Rules, 1954, which provides that the record shall include "the Judge's note of the hearing; provided that if a shorthand note of the hearing has been taken a copy of the transcript thereof may be included, either in addition to, or in substitution for the Judge's note, as he may direct". It does not appear that any application was made to the trial Judge in that behalf. Had such application been made, it is more than probable that the trial Judge would have directed the inclusion of only such part of the transcript as was relevant to the grounds of appeal.