[1940] EACA 37

## CRIMINAL APPEAL

## BEFORE THACKER AND BARTLEY, J. J.

## A. J. SIMPSON, Appellant

## v DISTRICT COUNCIL OF NAKURU, Respondent Criminal Appeal No. 31 of 1939

Criminal Law—Appeal—Impossibility of deciphering record of trial.

Appellant was tried and acquitted by a subordinate court of an offence contra section 40 (e) of the Traffic Ordinance, 1928. As the result of a case stated the acquittal was altered to a conviction. The appellant appealed from this conviction and various proceedings were taken in the Supreme Court and in the Court of Appeal for Eastern Africa before appellant's right of appeal was established. In the result the appeal was heard some two and a half years after the hearing in the court of the first instance. In the meantime the trial magistrate had retired and left the Colony. At the hearing of the appeal it was found that the original record was so indecipherable that it was impossible to discover from it the effect of the evidence and the true facts of the case.

Held (7-2-40).—That in the circumstance that it was impossible for the Supreme Court to discover the facts of the case from the record of the trial the appeal should be allowed, and the conviction and sentence set aside with liberty to the respondent to take further proceedings on the original complaint.

Allen for the appellant.

Figgis, K. C., for the respondent.

Judgment.—The appellant in this case was acquitted by the Resident Magistrate. Nakuru, on the 30th August, 1937, on two charges of offences against the Traffic Ordinance, 1928.

At the request of the Respondent the trial magistrate's successor stated a case on a point of law and as a result of this proceeding a conviction was entered against the appellant on one of the two charges viz., the offence of allowing sludge to flow from land in his occupation on to a public road.

It is unnecessary to deal with the subsequent history of the case. It suffices to say that in the appeal now before this Court the appellant has appealed against this conviction and that he bases his appeal both on points of fact and law. It should be noted that up to this appeal none of the courts which has dealt with this case ever had to consider the facts of the case except the trial magistrate's court. Questions of law alone have been considered by the various courts which have dealt with this case to date.

We find ourselves in what can safely be described as the unique position of being unable to consider the facts owing to calligraphy of the trial magistrate and the unfortunate manner in which the evidence was recorded.

On reading through the typescript copy of the proceedings we were left in a complete haze as to what it all meant. Many important words had been left out of the typed copy and a reference to the original record disclosed the reason for this. We were amazed that the typist had succeeded in deciphering so much of the record. On a comparison of the original record with the typed copy we found words which we believed, but could not be certain, the typist had misread and we were able in some cases to supply a missing word by the context. In some important instances, however, we were unable, even with the assistance of learned counsel for the parties, to decipher missing words. As learned counsel for the appellant pointed out the danger of the record was that its value must largely depend on the interpretation of the writing by the clerk who typed it.

We came to the conclusion that we could not deal with the facts of the case at all. Both counsel agreed with this view.

The trial magistrate has unfortunately retired and is now living in England. We have duly considered the advisability of having the record photographed and sent to this magistrate for his reading of the record. As the record was written two and a half years ago there could be no question of memory playing any part in such reading and as the context does not assist in most important places we have come to the conclusion that such a reading would only amount to an interpretation. We have decided that such an action would not be proper. Mr. Figgis for the respondent contends that as the record cannot be read the Court can make no Order. Mr. Allen for the appellant contends that as the record could not be read the magistrate's successor who stated the case as a result of which the conviction was entered, could not have stated it correctly and that therefore the appeal should be allowed.

We do not agree with either contention. The case stated was on points of law alone the facts being taken as proved. As regards our power to make an order we look upon the record before us as useless from the point of view of giving a decision on the facts as if the record had been lost.

On page 846 of Sohoni's Code of Criminal Procedure, 12th Edition, there is a note reading "Where on an appeal before the High Court from a conviction and sentence for murder, it appeared that the entire record had been lost and that no trace of it could be discovered the High Court directed that the conviction and sentence and all other proceedings in the case be set aside and a new trial held".

We have also in mind that it would be a great injustice were a convicted person to be deprived of his right of appeal through no fault of his own.

We accordingly set aside the conviction and sentence and the proceedings in the magistrate's court and leave it open for the respondent to take further proceedings on the original complaint if he so desires.

It is hardly necessary to remark that this result can be regarded only as a most unsatisfactory termination to the appeal, and one which, if any other reasonable and practical course were possible, the Court would have avoided.