Afumu and Another v Regina (Criminal Appeal No. 625 of 1953; Criminal Appeal No. 626 of 1953) [1953] EACA 1 (1 January 1953)

APPELLATE CRIMINAL

Before HEARNE, C. J.

ALEXIUS AFUMU AND ANOTHER. Appellants

REGINA. Respondent

Criminal Appeals Nos. 625 and 626 of 1953

Criminal Law and Procedure—Criminal Procedure Code, section 193—Absence of accused during his trial—Accused's advocate present—Section 99, Criminal. Procedure Code—Whether magistrate could have dispensed with presence of accused—Whether trial illegal—Effect of section 381 Criminal Procedure Code—Whether applicable—Propriety of magistrate importing own experience in absence of evidence to assess sentence.

The accused, who were, respectively, the drive/owner and conductor of an African omnibus, were jointly tried and convicted of an assault causing actual bodily harm *contra* section 246 Penal Code. When the principal witness for the prosecution was about to give evidence, the second accused was absent. His advocate asked for an adjournment, which was refused. The witness then gave his evidence in the absence of the second accused, but in the presence of his advocate. After conviction, the magistrate elected to record his own experience in the district of misconduct generally of African omnibus owners which he used as a ground for imposing an enchanced sentence on the accused. The accused appealed.

Held (5-10-53).—(1) The magistrate allowed a witness for the prosecution to give evidence in the absence of, and dispensed with the presence of, the second appellant contrary to the provisions of section 193. Criminal Procedure Code as read with section 99, Criminal Procedure Code and the trial was consequently illegal.

(2) The "other proceedings" referred to in section 381, Criminal Procedure Code cannot be extended to include the trial of an accused person in his absence and the section therefore could not be invoked to cure the error.

(3) When a magistrate acts, not on evidence, but upon his personal "experience" and<br>so seeks "to make an example" of offenders, he is apt to go astray in the sentence passed. There being no proper grounds for enhancing the sentence, it was reduced.

Appeal of second appellant allowed; appeal of first appellant *quoad* conviction dismissed; sentence reduced. Dictum of Lord Hewart, L. C. J. in The King v. Phillips, (1939) 1 K. B. 63 considered.

Desai for both appellants.

$\mathcal{L}^{\prime}$

• Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—Criminal Appeals Nos. 625 and 626 have been consolidated. I shall refer to the appellant in the former, who was the first accused in the court below, as the first appellant, and to the appellant in the latter, who was the second accused in the court below as the second appellant. The appellants were convicted of the offence of assaulting one Omondi occasioning actual bodily harm. It was frankly admitted by the advocate for the appellants that the convictions depended upon the facts believed by the magistrate and in the case of the first appellant I have no reason to think that the decision of the magistrate was wrong. His appeal from conviction must, therefore, be dismissed. When magistrates: act, not on evidence but on their personal "experience" seek "to make an

example" of offenders, they are apt to go astray in the sentences they pass. If the first appellant is unable to pay the rather heavy fine passed, he will, with the substantive term of imprisonment, suffer six months' imprisonment for an assault that did not occasion serious bodily harm. I reduce the sentence to two months' imprisonment with hard labour and a fine of one hundred shillings, or one month's imprisonment with hard labour in default.

In the case of the second appellant there is an additional ground. The principal witness for the prosecution gave evidence against him in his absence. The advocate for the second appellant, who was also his advocate at the trial, stated to this Court that he had asked for an adjournment until the afternoon when the second appellant in fact arrived, but his application was not granted. Section 193, Criminal Procedure Code enacts: "Except as otherwise expressly provided, all evidence taken in any inquiry or trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any)." The magistrate could then have dispensed with the presence of the second appellant under section 99, Criminal Procedure Code, and the trial of the second appellant was illegal. Crown Counsel invited this Court to apply the provisions of section 381, Criminal Procedure Code. That section has been sufficiently overworked in seeking condonation of sins of omission and commission. It refers to errors . . . "in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings". I do not propose to extend the scope of "other proceedings" to include the trial of an accused in his absence. Crown Counsel also referred me to the case of The King v. Phillips, (1939) 1 K. B. 63, and to the

passage in which Lord Hewart, L. C. J., said: "The terms of section 17 of the Indictable Offences Act, 1848, are imperative and if they are complied with the accused person hears the witness give his evidence so that he is able to object to any question ... and to see that the oral evidence is recorded in writing with accuracy and fairness. This opportunity was denied to Phillips, .... " Crown Counsel argued that the second appellant, although absent, was represented by an advocate who had the opportunity of seeing that the evidence against the second appellant was recorded with accuracy and fairness. But the case of The King v. Phillips was concerned with the proceedings before the committing justices, and it was held for the reasons given by Lord Hewart that the committal of Phillips was a nullity. At the trial an advocate is required to safeguard the interests of his client not only by objecting to questions that, in his submission to the court, should not be asked. He is there to conduct the defence in the fullest sense of that expression and he cannot adequately discharge his duty to his client, or indeed the court, when the former is not present.

I allow the appeal of the second appellant, i.e. appellant in Criminal Appeal No. 626 of 1953, and set aside his conviction and sentence.