[1950] EACA 597

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

Before SIR RONALD SINCLAIR (Acting President), BACON (Acting Vice-President) and Lowe, J. (Tanganyika)

# JOGINDER SINGH, Appellant (Original Accused) ν

### **REGINAM, Respondent**

#### Criminal Appeal No. 271 of 1956

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

Evidence—When uncorroborated accomplice's evidence may be accepted—Tanganyika Penal Code, sections 91 (1) and 376 (1).

The appellant was a police inspector and had been convicted in the Resident Magistrate's Court on two charges of official corruption. His appeal to the High Court was dismissed. He had obtained money from a transport contractor, threatening that if he did not pay, his vehicles would be inspected by the police. The principal witness was the transport contractor and it was submitted that as his evidence was not corroborated the conviction should be quashed.

Held (22-11-56).—The learned magistrate, having carefully directed himself as to the danger of convicting on the uncorroborated evidence of an accomplice, had correctly applied the true rule of law in that respect.

Appeal dismissed.

Cases referred to: Canisio s/o Walwa v. R., E. A. C. A. Cr. App. No. 364 of 1955 (supra p. 453); R. v. Mangalal and Motilal, (1889) I. L. R. (Bombay), Vol. 14, pp. 119 and 120; Sriniwas Mall v. Emperor, A. I. R. (1947) P. C.

Master, Murray and Atwar Singh for appellant.

### Samuels for respondent.

JUDGMENT (prepared by Bacon, Acting Vice-President).—The appellant was convicted by the Court of the Resident Magistrate at Dodoma of two offences of official corruption contrary to section 91 (1) of the Penal Code of Tanganyika and of two offences of corruptly obtaining money as an agent contrary to section 376 (1) of the Penal Code. Each of the alleged offences against section 91 (1) was said to consist of having corruptly obtained Sh. 200 "on account of something to be afterwards omitted to be done... in the discharge of the duties of his office, namely not to prosecute..." One of such payments of Sh. 200 was said to relate to the month of April, 1955, the other to the month of May, 1955. Each of the alleged offences under section 376 (1) was said to consist of having "corruptly obtained ... the sum of Sh. 200 as an inducement for forbearing to do an act in relation to his (the appellant's) principal affairs, namely forbearing to prosecute. ... " One such payment was said to relate to April, 1955, the second payment to relate to May, 1955.

The appellant appealed to the High Court of Tanganyika which upheld the convictions and sentence. He then appealed by way of second appeal to this Court against the decision of the High Court to the extent that it upheld the convictions. We dismissed the appeal and now give our reasons for so doing.

Throughout the material time the appellant was an inspector of police working under the Assistant Superintendent of Police at Singida. The principal witness for the Crown (to whom we shall refer as "Mr. Singh") was the person who, on his own admission in the witness-box, had paid to the appellant a sum of Sh. 200 in respect of the month of April, 1955, and another sum of Sh. 200 in respect of the month of May, 1955. This witness was thus on his own showing an accomplice as regards all the offences which the appellant was alleged to have committed. There was no corroboration of his evidence in any material particular as regards any of the alleged offences.

The material parts of section 91 (1) of the Penal Code are as follows: $-$

"Any person who, being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly ... obtains ... any property ... for himself or any other person on account of anything... to be afterwards... ommitted to be done by him in the discharge of the duties of his office... is guilty of a misdemeanour....

The material parts of section $376(1)$ are these:—

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"If any agent corruptly ... obtains ... from any person, for himself or for any other person, any gift or consideration as an inducement ... for ... forbearing to do... any act in relation to his principal's affairs or business, or for showing ... favour... to any person in relation to his principal's affairs or business... he shall be guilty of a misdemeanour."

The Memorandum of Appeal on the second appeal to this Court originally contained four grounds; the advocates for the appellant abandoned the third and fourth grounds, leaving these grounds to be argued: first, that the "learned Judge" erred in not holding that the resident magistrate had wrongly accepted the evidence of the prosecution witness (Mr. Singh)"; secondly, that "the learned Judge erred in upholding the conviction of the appellant by the resident magistrate on the uncorroborated testimony of the witness (Mr. Singh) who was an accomplice".

At the hearing before us application was made to add a fresh ground of appeal, notice of which had been given to the Crown. That further ground was: "The first appellate Court should have held that the facts found by the learned magistrate did not constitute all the ingredients required to be proved for convicting the appellant of the offences charged". We gave leave to argue that ground also. $\cdot$

It will first be convenient to recall in outline the judgment of the learned resident magistrate. For the purpose of finding the facts he adopted the system of quoting verbatim a number of the Crown witnesses and then recording his decision as regards the extent to which he accepted their evidence.

Having quoted the evidence of a witness who had held the office of assistant superintendent of police at Singida at the material time, the learned magistrate said: "I am quite satisfied that his testimony is absolutely truthful and reliable and I accept the whole of his evidence". That was tantamount to a finding that the appellant, while holding the rank of inspector of police at the material time, had the power to charge any person with any offence and also the power to decide not to bring any particular charge. The learned magistrate also accepted the evidence of another assistant superintendent of police, a Mr. Young, to the effect that the appellant was at the material time under a duty to prefer or to cause to be preferred charges against alleged offenders and, after investigation, not to prefer them if he thought fit.

The next witness to whom the learned resident magistrate referred was Assistant Superintendent of Police N. A. Dar, who was, and since October, 1955, had been in charge of Dodoma Police District. That witness had said: "I interviewed (Mr. Singh). Before I interviewed him I told him he would not be prosecuted for official corruption. I gave him an absolute assurance that he would not be prosecuted". In cross-examination the witness had added: "On the instructions of the Attorney-General which came to me from my superior officer I gave (Mr. Singh) the absolute assurance that he would not be prosecuted". The learned magistrate accepted that witness's evidence in toto.

The next witness quoted in the judgment was Mr. Singh, the accomplice. We shall repeat such parts of his evidence as are most material for present purposes. He said this: $-$

"I am in partnership with my father, ... My firm owns vehicles. I know the accused. He was a police officer ... in 1954 and 1955. I also knew the superintendent of police there. At the end of 1954 I had a conversation with the accused.... The accused told me that (the superintendent) wanted Sh. 200 from me every month. Before that the police were bothering us. Our lorries were not in good order. The police would catch the vehicles and once I was prosecuted. The accused told me that my firm's lorries were old lorries and that if the firm paid to the police Sh. 200 per month we would no longer be bothered and we could run our lorries as we liked. I said to the accused 'We cannot pay'. The next day I told Atwar Singh Grewal of the conversation I had had with the accused. Atwar Singh Grewal said to me: 'This sort of business is no good. You must not pay'. After this our vehicles were tested with increasing frequency and we were ordered by the police to carry out repairs and we complied with their orders. After this our business was affected because the lorries were laid up. At that time we had six or seven vehicles in use in the business. For about three months afterwards the accused kept on seeing me and he told me that it would be in the interests of my firm if it came to an arrangement. In the month of February, 1955, I came to an arrangement with the accused... I made the first payment of Sh. 200 to the accused in January or February, 1955. The accused told me that other vehicle owners were paying similar amounts. I paid the Sh. 200 only because the accused pressed be to pay it. I was afraid of the police. What I got in return was this, that the vehicles which the police formerly said were unroadworthy were allowed to run. Before I came to this arrangement I had once been fined by the resident magistrate for permitting a defective vehicle to be used on the road. After the arrangement the vehicles were in the same condition, no better nor no worse. Since I came to the arrangement I have never been prosecuted... For about six or seven<br>months altogether from January or February, 1955, onwards, I paid the accused Sh. 200 per month. I realized what I was doing was wrong. I did this because I was being continuously pressed by the accused and because he said that his boss wanted the money. I have never bribed anyone either before or since this. I have not been prosecuted for this offence of bribery and I have been told that I will not be prosecuted. $\ldots$ The accused had told me that if I did not fall in with this arrangement I should be bothered by the police. I agreed to pay these sums to avoid my vehicles being restricted by the police."

The learned magistrate's all-important comment on the accomplice's evidence was as follows:-

"I naturally approach the evidence of (Mr. Singh) with the greatest caution, realizing as I do that it is without corroboration and mindful as I am (and have indeed been throughout this trial) of the judgment of Lord Simmons, L. C., in Davies v. D. P. P. and of the judgment of Sinclair, J. (as he then was), in Mohamed $s/o$ Saidi and others v. R. No more responsible task confronts any juryman or judge of fact than that of deciding whether to accept or reject the uncorroborated evidence of an accomplice. Thus it is that Courts and juries in such cases strive to the utmost limit of their oaths to protect the prisoner whom they have in charge.

My impression of (Mr. Singh) as a witness was, however, that throughout his evidence he manifestly adhered unflinchingly to his oath. From his demeanour, manner and bearing in the witness-box I am thoroughly convinced and satisfied not only that he told me the truth throughout his evidence, but that he did so with no particle of favour towards the prosecution and with not the slightest ill-will or disfavour towards the accused.

In his final speech for the defence Mr. Fraser Murray submitted that there are in this case 'no exceptional circumstances' which would justify a departure from the general rule that the uncorroborated evidence of an accomplice should not be acted upon.

With the greatest respect to Mr. Murray I say categorically that I have no hesitation in holding that such 'exceptional circumstances' do exist here."

The learned magistrate also quoted the testimony of Mr. Atwar Singh Grewal, an employee in the Revenue Office in Singida, to whom Mr. Singh had gone for advice. Mr. Atwar Singh Grewal had said this: -

"I told (Mr. Singh) that he should not give any such money as it was against the law. I did not give (Mr. Singh) any other advice. I just told (Mr. Singh) not to give money to (the appellant)."

His evidence was entirely accepted as being that of "a respectable, trustworthy, truthful and reliable witness".

The appellant himself testified to the effect that Mr. Singh's story was completely false and that he had had no financial dealings with him. In answer to the learned magistrate the appellant said, however: "Up to when I left Singida in October, 1955, I regarded (Mr. Singh) as a good man". The learned magistrate completely rejected the appellant's allegation that Mr. Singh had given false evidence against him. The learned magistrate held that this was a case in which exceptional circumstances existed inasmuch as the appellant, a police officer, was "the prime mover", he had obviously indicated that on payment of the protection money (Mr. Singh's) firm would neither be restricted nor be prosecuted in relation to their use of their vehicles, he had pestered Mr. Singh despite his earlier refusal to pay, and Mr. Singh had only given in under continuous pressure.

The learned magistrate recorded the kernel of his decision in the following terms:-

"Convinced as I am, for the reasons I have already given, that (Mr. Singh's) evidence is truthful and reliable, it follows that I completely reject the suggestion that (Mr. Singh's) evidence has been falsely given against the accused.

Clearly, in my view, the facts, circumstances and evidence in this case, coupled with the relationship of the accomplice to the offences committed, justify me in acting upon his evidence."

We here mention what was a surprising and somewhat unsatisfactory feature of the trial, namely that counsel on both sides omitted to bring to the notice of

the learned magistrate a recent decision of this Court which bore very closely upon the main question which he had to decide. We refer to the judgment in Criminal Appeal No. 364 of 1955, Canisio s/o Walwa v. R., delivered on 25th January, 1956. We there reviewed a number of decisions and dicta in this and other Courts in years gone by and concluded our judgment with a compendious statement of what we regard as the true rule of law as to convicting on the uncorroborated evidence of an accomplice and the proper manner of applying that rule to any given case. The result of the absence of any reference to that decision was that, no doubt, the learned magistrate's judgment was couched in terms which he would not have used in that precise form had he been aware of the judgment in Canisio's case, but that is not by any means necessarily to say that he adopted any wrong principle or applied any correct principle wrongly. In searching, as he did, for "exceptional circumstances" he was, in our view, in reality only asking himself whether the case before him was of that exceptional category to which belong those comparatively rare cases in which it is safe to rely solely on the testimony of an accomplice. Mr. Murray, for the appellant, in the instant case argued before us that the culminating passage in the judgment in Canisio's case had not been followed by the learned magistrate and that he had departed from the true criterion which we there laid down as applicable to all such cases as the present one. The passage in question was this: -

"Generally speaking it is the practice, founded upon prudence when applying the rule as to the onus of proof, not to convict without any evidence corroborating that of accomplices. But there are exceptional cases in which a departure from that general practice is justified. The criterion as to whether such an exceptional case has arisen is the credibility of the accomplice or accomplices combined with the weight to be attributed to the facts to whch they testify. The principal factors to be considered when assessing their credibility are not only their demeanour and quality as witnesses but also their relation to the offence charged and the parts which they played in connexion therewith, that is to say, the degree of their criminal complicity in law and in fact. A departure from the general rule of practice is only justifiable where, on applying that criterion in that manner, it clearly appears that the accomplice evidence is so exceptionally cogent as to satisfy the Court beyond reasonable doubt, and where accordingly the judge or judges of fact, while fully conscious of the general inherent danger of any such departure, is or are convinced that in the particular instance concerned the danger has disappeared."

Mr. Murray's point, if we understood him correctly, was that the error in the learned magistrate's approach to the question of the weight to be given to Mr. Singh's testimony consisted of his saying to himself in effect: "I believe his evidence, though mindful of the danger of convicting on that alone; there must be exceptional circumstances to warrant my so doing". It was submitted that the learned magistrate ought to have applied a different test, following a phrase to be found in our judgment in *Canisio's case*, namely: Was Mr. Singh's evidence to be treated as exceptionally cogent?. The learned magistrate did not, Mr. Murray submitted, apply the proper and full criterion; he only applied that part of it which related to the "demeanour and quality" of Mr. Singh as a witness.

We were unable to accept the argument, for in our opinion the learned magistrate's judgment as a whole shows clearly that he was aware of, and was giving due effect to, the true criterion as a whole, including particularly the nature and extent of Mr. Singh's complicity.

Mr. Murray put the matter in this way: there are he said, three factors which must always be considered in weighing the evidence of an accomplice, namely those referred to per Scott, J., in R. v. Maganlal and Motilal, (1889) I. L. R. (Bom.) Vol. 14, p. 119/120. The learned Judge there said: —

"Accomplice evidence is held untrustworthy for three reasons: (1) because an accomplice is likely to swear falsely in order to shift the guilt from himself; (2) because an accomplice, as a participator in crime, and consequently an immoral person, is likely to disregard the sanction of an oath; and (3) because he gives his evidence under promise of a pardon, or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally: and this hope would lead him to favour the prosecution."

In the instant case the first of those reasons did not arise; and we think it clear beyond doubt that the learned magistrate was completely aware of the need to consider the second and third reasons and did in fact give them full consideration.

We were also referred to their Lordships' judgment in Sriniwas Mall v. *Emperor*, A. I. R. (1947) P. C., p. 139, where this was said: $\rightarrow$

"No doubt the evidence of accomplices ought as a rule to be regarded with suspicion. The degree of suspicion which will attach to it must, however, vary according to the extent and nature of the complicity: sometimes, as was said by Sir John Beaumont, C. J., in 59, Bom. 486, the accomplice is 'not a willing participant in the offence, but a victim of it'. There is ground for saying that the accomplices in this case acted under a form of pressure which it would have required some firmness to resist."

In our view that passage is peculiarly apt in the instant case; and the judgment clearly shows that the point was present in the learned magistrate's mind and that he rightly took it into account as being favourable to the Crown.

For those reasons we did not think that the learned magistrate's acceptance of Mr. Singh's uncorroborated testimony as sufficient to found the four convictions was open to adverse criticism. It remains to be said that on first appeal to the High Court Canisio's case was still not cited, but the learned Judge himself referred to and followed it. His reasons for dismissing that appeal were substantially the same as ours for similarly disposing of the second appeal.

Finally there was the additional ground of appeal, which was argued for the appellant by Mr. Master. As we understood it, the pith of his contention was that although this might have been a case of extortion it was not one of obtaining a bribe in consideration of refraining from prosecuting or as an inducement to forbear so to do. He argued that two matters must be proved before there could be a conviction in the instant case either under section $91(1)$ or under 376 (1) of the Penal Code: first, that at the time when the money passed there existed (presumably to the knowledge of the appellant) facts in respect of which it was the duty of the police to prosecute Mr. Singh and his partner; and, secondly, that the appellant promised not to perform that duty. Obtaining money, Mr. Master submitted, for the avoidance of some prosecution which it might become the duty of the police officer to institute in the course of the coming month is no offence under either sub-section. In the instant case, it was urged, no such duty was proved already to have arisen, and still less an undertaking not to carry it out.

In our view the first limb of that argument envisaged a surprisingly comforting prospect for venal servants of the Crown empowered and obliged to enforce the law. We were unable, however, to confirm their hopes, for there is nothing in either sub-section to indicate so happy an outcome. In our opinion neither the intention nor the effect of the provisions under which these charges were brought left any such loophole for the escape of wrongdoers. To put so narrow a construction on those provisions would be at once to defeat their plain object.

As regards proof of a promise by the appellant, all that was required was to establish his undertaking to evade his duty in favour of Mr. Singh if and when the occasion arose while, so to speak, the money still talked. That, we think, was clearly proved. We need only refer once more to a few lines of Mr. Singh's evidence, accepted by the learned magistrate as strictly true. He said this:

"What I got in return was this, that the vehicles which the police formerly said were unroadworthy were allowed to run. Before I came to this arrangement I had been once fined by the magistrate for permitting a defective vehicle to be used on the road. After the arrangement the vehicles were in the same condition, no better, no worse. Since I came to the arrangement I have never been prosecuted. . . The accused had told me that if $I$ did not fall in with this arrangement I should be bothered by the police. I agreed to pay these sums to avoid my vehicles being restricted by the police."

That, in our view, was the plainest possible evidence of an agreement reached with the appellant to the effect that he would disregard his duty in Mr. Singh's favour, and, moreover, of his having carried out what he had agreed to do.