[1954] EACA 182

## APPELLATE CRIMINAL

### Before SIR KENNETH O'CONNOR, C. J., and BOURKE, J.

#### MURUATETU s/o RUGIRA, Appellant

# THE QUEEN, Respondent

#### Criminal Appeal No. 215 of 1954

Criminal Law-Penal Code-Section 116 (1) (f)-Attempting wrongfully to interfere with or influence a witness in a judicial proceeding—Right of interested person to interview potential defence witnesses-Impropriety of defence interviewing a prosecution witness—Offence committed if a person "likely to be a witness" is wrongfully influenced-Misconception as to gravity of offence—Sentence reduced.

The accused was an ex-Senior Chief of the Gaturi location in Embu district. Certain of his wives having been charged with a criminal offence were acquitted. The accused was then charged contrary to section 116 (1) $(f)$ of the Penal Code with having attempted wrongfully to influence a witness named Gachithiri in the<br>case against the accused's wives. The accused had interviewed certain witnesses who had been summoned by defence Counsel instructed by the accused, and the accused had also spoken to Gachithiri. Gachithiri had been listed as a witness for the prosecution on 11th February, 1954, but there was no evidence that when the accused spoke to him on 19th March, 1954, that he (the accused) knew that Gachithiri was a Crown witness. The accused, however, did know that Gachithiri was a person likely to be a witness in the proceedings. The accused was convicted by a magistrate and sentenced to imprisonment with hard labour for 18 months. The accused appealed.

*Held* (13-10-54).—(1) As the husband of the women charged with a criminal offence, the accused was entitled to interview potential defence witnesses and to ascertain what they knew about the case; but not to interview any witness, or to instruct any witness what to say or to attempt to influence or interfere with any witnesses' evidence. Although there was no evidence that the accused knew that the witness he was alleged to have influenced had been cited as a Crown witness, he did know that that person was likely to be a witness in the criminal proceedings.

(2) There was evidence upon which the magistrate could reasonably have come to the conclusion that the accused had wrongfully attempted to influence the evidence of a person whom he knew was likely to be called as a witness in a criminal proceeding. The accused was, therefore, properly convicted.

(3) The gravity of the offence had been greatly magnified in the mind of the magistrate by his misconception that there must necessarily have been something sinister in the interviewing by the accused of potential defence witnesses, but the evidence revealed a reasonable explanation for so doing. The sentence was out of all proportion to the<br>gravity of the offence disclosed when the evidence was assessed with a mind free from<br>this misconception. Sentence of imprisonment quashe

Cases cited: Shaw v. Shaw, (1861) 2 S. W. and Tr. 517 (164 E. R. 1097).

Salter, $Q. C.$ , with him Nene, for appellant.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted on the 3rd May, 1954, by the First Class Magistrate at Embu of an offence against section 116 (1) (f) of the Penal Code, that is of attempting wrongfully to interfere with or influence a witness in a judicial proceeding. The particulars of the count upon which the appellant was convicted are as follows: -

Muruatetu s/o Ruriga on or about the 19th day of March, 1954, at Embu in the Embu District of Central Province, attempted wrongfully to interfere with, or influence Gachithiri s/o Karetu, a witness in Criminal Case No. 75 of 1954 in the Supreme Court sitting in Emergency Assize at Thika, before he gave evidence in such case, in connection with such evidence.

There had originally been other counts against the appellant of attempted subordination of perjury, incitiment to perjury, and attempting to interfere with or influence witnesses, but on all of these the appellant was acquitted for the reasons set out in the judgment of the magistrate.

The following statement of the facts is taken from the judgment of the magistrate: —

"The accused in this case is an ex-Senior Chief of the Gaturi Location of Embu District having served in that capacity for about 30 years. His *boma* is in the location about 9 miles from Embu, his temporary residence."

1. In the second contract of the second contract of the second contract of the second contract of the second contract of the second contract of the second contract of the second contract of the second contract of the se

"The case has reference to Supreme Court Criminal Case No. 75 of 1954 in which six persons, including five wives of the accused, were charged with furthering the objects of terrorism *contra* regulation 3A of the Emergency Regulations, 1952. They were all acquitted."

. . . . . . . . . . . . . . . . . . . .

"As a result of a wire sent to the District Commissioner, Embu, by Counsel for the defence, P. W.2" (Chief Mugani of the Gaturi Location) "was handed by P. W.3" (a clerk in the office of the District Commissioner) "a letter directing him to produce witnesses in the District Commissioner's office. The names of these witnesses were specified in the letter but not on the wire. They were all dispatched in a lorry to Embu in charge of one Kabau-a headman and a son of the accused. The lorry did not proceed to the District Commissioner's office, but stopped on the way near the house of the accused, where the occupants got out and were met by the accused who engaged them in conversation."

The judgment of the magistrate then proceeds as follows:—

$\mathcal{L}_{\text{out}}$

"Prosecution witnesses 4, 5, 6, 7 and 8" (i.e. potential witnesses in Case No. 75 of 1954) "state that the conversation related to what is clearly part of the subject matter of Supreme Court Case No. 75 of 1954 then pending. Prosecution witness No. 4 says that the accused suggested that his step-son John might be one of the gang which attacked the accused's boma on the night of 2nd January, 1954, and ordered him (P. W.4) to say in Court that John and one Njeru were actually the leaders of the gang. P. W.5 says that the accused merely told those present that John was the leader of the gang. P. W.6 and 7 both say that the accused ordered them to say in Court that it was a 'matter of fitina' between himself on the one hand, and John and Nieru on the other. P. W.8 (Gachithiri) says that accused ordered him to say, if asked in Court, that the attackers had come from the direction of John's house. P. W.8 also stated that the accused had asked him (earlier on when P. W.8 was in hospital) what he had told the police. He adds that accused brought with him a clerk to record his replies. All this evidence, if true, constitutes, in the opinion of the Court, a clear attempt to tamper with potenial winesses, including one person whom the Court has already found to be a 'witness', within the meaning of section 116 $(f)$ of the Penal Code. The Court refers of course to Gachithiri.

It is not disputed that the lorry did stop near accused's house, and that a conversation with accused ensued. It is not clear how long this lasted, but the witnesses have obviously little idea of time. Counsel for the defence sees no sinister background to this meeting; the Court sees the matter in quite another light. It sees no legitimate reason why the lorry (which, suspiciously enough, was in charge of a son of the accused) should break its journey near the accused's house at all. All the late occupants of the lorry were potential witnesses in the Supreme Court case and must have been known to the accused to be so. They were persons who had been present at the alleged attack on the *boma* on 2nd January, 1954, and most of them were there in the capacity of Home Guards for its protection. Their value to the defence in the Supreme Court case was beyond question."

The magistrate then considered the defence evidence which he disbelieved, and expressed himself as favourably impressed by the demeanour of the prosecution witnesses and, as already mentioned, discharged and acquitted the appellant on the other counts and convicted on count 8.

The magistrate in his judgment appears to have overlooked the full significance of the following facts:—

Five of the persons accused in Supreme Court Criminal Case No. 75 of 1954 were wives of the appellant. Unless these women were women of means, it seems extremely probable that the advocate for the defence had been instructed by their husband, the appellant, and that he was organizing their defence. The potential witnesses whom the appellant sought to interview were, admittedly, summoned at the request of the advocate for the defence. The magistrate has found, and we agree with him, that the appellant must have known that these men were potential witnesses, valuable to the defence. The appellant (who had interviewed Gachithiri in hospital with a clerk to record his statement) had, clearly, been collecting evidence for the defence. He was entitled to interview potential defence witnesses and to ascertain what they knew about the case. He was not, of course, entitled to interview anyone whom he knew to be a prosecution witness or to instruct any witness what to say, or to attempt to influence or interfere with any witnesses evidence. There was, however, nothing which was prima facie sinister, as the magistrate seems to have considered, in a lorry full of potential witnesses for the defence stopping at the house of the appellant, even if this was done at the appellant's request. The evidence, however, does not establish that the lorry stopped at or near the appellant's house at his request. One witness does say that he was told that the appellant wanted to interview him; but this would be quite consistent with Kabau, the appellant's son, having stopped the lorry at his own house which was near where the appellant was living and having told his father that he had with him potential defence witnesses and having asked whether the appellant wished to interview them. Kabau was in charge of the lorry because the Chief had handed him, as headman, the letter summoning the witnesses. There was nothing necessarily "suspicious" about this.

We must now consider what took place between the appellant and the potential witnesses, and whether or not there was evidence on which the magistrate could resonably find that what occurred went beyond what might legitimately be said by the husband of an accused person when interviewing potential witnesses for the accused. Mr. Salter has suggested that there was no evidence that the appellant knew that these men were potential witnesses in the case which was being launched against his wives, and that the appellant has testified that he did not know this. We think, however, that there was evidence on which the magistrate could reasonably find that the appellant did know that these men were potential witnesses in that case. He certainly knew that Gachithiri

was, because he had visited him in the hospital and taken a clerk to record his statement. There is, however, no evidence whatever that the appellant knew or thought, on the day that he interviewed them, that any of these men were potential witnesses for the prosecution in that case. In fact they were not then being called for interview by the prosecution, but by the defence advocate, and none of them, except Gachithiri, ever became a prosecution witness. The decision to list and call Gachithiri for the prosecution had been made on or before the 11th February, but there is no evidence whatever that the appellant knew this. Gachithiri does not say that he told the appellant this, if indeed Gachithiri then knew himself that he was to be a Crown witness. The most that was proved against the appellant was that he knew that these were potential defence witnesses and it is upon that basis that he must be judged.

There does not seem to be any local authority upon the question of the stage at which a person becomes a "witness" within the meaning of section 116 (1) $(f)$ of the Penal Code.

In the case of Shaw v. Shaw, 164 E. R. 1097, it was held that it was a contempt of Court to use threatening language to a person who was likely to be a witness in a suit with a view to preventing that person from giving evidence. In that case the person concerned had been informed by the lawyers for the other party that she was likely to be called as a witness. That was a case of contempt: the present case relates to a statutory offence, and the circumstances are not precisely similar. Nevertheless, Shaw's case is of some assistance. We have only to consider Gachithiri, not the other potential witnesses. Gachithiri had been listed as a witness before the 11th February and, even if the appellant did not know then that he was a witness for the Crown, he knew that Gachithiri was a person "likely to be a witness" in the proceedings. If, with that knowledge, the appellant attempted wrongfully to influence Gachithiri in connexion with the evidence he was to give, in our opinion, he committed an offence against section 166 $(1)$ $(f)$ .

Mr. Salter, for the appellant, argued that the magistrate was wrong in holding, upon the evidence, that any of these men had been "ordered" by the appellant to say anything in Court, and submitted that all the appellant did was to inquire what had happened, to express an opinion that it was John who was at the bottom of it, and to tell the men that, if they themselves thought so and were asked about it in Court, they should say so. It may be that that was what occurred and that ignorant African witnesses would afterwards relate this as an order by the appellant to give evidence in a particular way, and that a more searching inquiry into what was actually said would have revealed that it was unobiectionable.

What we have to consider, however, as an appellate court, is whether or not there was evidence before him upon which the magistrate could reasonably come to the conclusion that an attempt wrongfully to influence Gachithiri in connexion with his evidence had been made by the appellant; and, further, that what the appellant said exceeded what was legitimate, even if he only knew that Gachithiri was likely to be a witness in the proceeding and did not know that he was a witness for the Crown. We have come to the conclusion that there was such evidence.

Mr. Salter argued that, at common law, the offence of interfering with a witness means wrongfully trying to dissuade the witness either from giving evidence at all, or from giving evidence of a certain type, and does not include attempting to persuade the witness to give positive evidence. We are not, however, in this case dealing with the offence of interference at common law, but with an offence created by a statute where the wording is "interfere with or influence". We think that this would include an attempt wrongfully to influence a witness to give positive evidence.

Accordingly, the conviction must be sustained.

But, we think that the case has been greatly magnified in the mind of the magistrate by his misconception that there must necessarily have been something sinister or suspicious about the lorry being in the charge of the appellant's son and about the husband of the accused interviewing potential defence witnesses. It may be that these circumstances did have a sinister aspect, but, upon the evidence, there were reasonable explanations for both of them. The sentence is out of all proportion to the gravity of the offence disclosed when the evidence is assessed with a mind free from this misconception. The appellant has a long and, so far as the evidence goes, honourable record as a Senior Chief, and he is entitled, as his Counsel says, to throw this into the scale.

The appeal against conviction will be dismissed. The sentence of 18 months' imprisonment with hard labour will be quashed and a sentence of a fine of Sh. 500 (or, in default six months' simple imprisonment) will be substituted.