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Berger v Rex (Criminal Appeals Nos. 23 and 24 of 1941) [1940] EACA 54 (1 January 1940)
- Citation
- [1940] EACA 54
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Bartley J, Sheridan CJ
- Case number
- Criminal Appeals Nos. 23 and 24 of 1941
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Bartley J, Sheridan CJ
- Case number
- Criminal Appeals Nos. 23 and 24 of 1941
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found no good grounds to admit further evidence, as the information sought to be introduced was available to the accused at the time of trial and could have been presented then. The record did not indicate any failure by the magistrate to consider the case properly. However, since the two offences arose out of the same transaction, the court exercised its discretion to vary the sentences so that they would run concurrently rather than consecutively. This adjustment was deemed appropriate to reflect the connected nature of the offences and to ensure proportionality in sentencing.
Court disposition
sentences varied to run concurrently
Orders
- The sentences imposed in both cases shall run concurrently and not consecutively.
02
Material facts
Parties
Hans Berger
Appellant Counsel: AllenRex
Respondent Counsel: Spurling03
Procedural history
Posture
Criminal Appeal / Consolidated Appeal
04
Questions and positions
Legal issues
- 01
Whether there are grounds to admit further evidence on appeal.
- 02
Whether the sentences imposed for two offences arising out of the same transaction should run concurrently or consecutively.
Party arguments
- Applicant
- Counsel for the appellant argued that the Resident Magistrate did not give sufficient consideration to the case due to being busy, and that further evidence should be admitted as the accused possessed information relevant to mitigation at the time of trial. The appellant also contended that the sentences were excessive given the circumstances.
- Respondent
- Crown Counsel opposed the application for further evidence, arguing that such applications are rarely entertained and only for good reasons, which were not present in this case. The respondent maintained that the record did not suggest any dereliction by the magistrate and that the accused had the opportunity to present mitigating facts at trial.
05
Court’s reasoning
Legal principles
- 01
General appellate procedure principles
Applications to admit further evidence on appeal are rarely entertained and only for good reasons, such as new matter coming to light that could not have been available at trial by due diligence.
- 02
Sentencing practice under criminal law
Where two offences arise out of the same transaction, sentences may be ordered to run concurrently rather than consecutively.
06
Ratio, limits and disposition
Ratio decidendi
The court found no good grounds to admit further evidence, as the information sought to be introduced was available to the accused at the time of trial and could have been presented then. The record did not indicate any failure by the magistrate to consider the case properly. However, since the two offences arose out of the same transaction, the court exercised its discretion to vary the sentences so that they would run concurrently rather than consecutively. This adjustment was deemed appropriate to reflect the connected nature of the offences and to ensure proportionality in sentencing.
Obiter and limits
- It is open to the accused to petition His Excellency the Governor for a remission of sentence for whatsoever reason he may be advised.
- If the accused did not put forward facts which might have operated in mitigation of sentence then he alone is to blame.
Court disposition
sentences varied to run concurrently
- The sentences imposed in both cases shall run concurrently and not consecutively.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
APPELLATE CRIMINAL
Before Sir Joseph Sheridan, C. J. and Bartley, J.
HANS BERGER, Appellant
v.
REX. Respondent
Criminal Appeals Nos. 23 and 24 of 1941
Criminal Law—Criminal Procedure—Defence Regulations—Consolidated appeal from sentences in two different cases—Application for leave to admit further evidence—Offences arising out of the same transaction—Powers of petition to His Excellency the Governor.
The appellant was convicted on his own confession in the Resident Magistrate's Court, Nakuru, of two offences against Regulation 18 of the Defence Regulations. There were two separate cases against the accused. The first offence to which the appellant pleaded guilty was that of using a motor vehicle without the requisite permit *contra* clause 1 of the order of the Commissioner of Police. Government Notice No. 443/40, he being a male enemy alien to wit a German. The second offence to which he pleaded guilty was that of being out of door at 9.20 p.m. without the permission of a police officer contra clause 3 of the order of the Commissioner of Police, Government Notice No. 339/40, he being a male enemy alien to wit a German.
The appellant was sentenced to a term of imprisonment with hard labour in each case.
The appellant appealed to the Supreme Court on the grounds that in all the circumstances the sentences were excessive and applied for leave to call fresh evidence. The appeals were consolidated and become one appeal.
Held $(16-4-41)$ .—(1) That there were no good grounds for allowing further evidence to be taken.
(2) That in view of the fact that the two offences arose out of the same transaction the sentences might well be varied so as to run concurrently.
Allen for the Appellant.
Spurling, Crown Counsel, for the Crown.
JUDGMENT.—Counsel for the accused has represented to us in the first place that the learned Resident Magistrate was so busy that he did not have the time to give sufficient consideration to this case. This representation apparently has been made on instructions from his client. It does not find any favour with the Court and the record in no way suggests any dereliction on the part of the magistrate. If the accused did not put forward facts which might have operated in mitigation of sentence then he alone is to blame. With regard to the application to allow further evidence to be taken, such applications are rarely entertained and then only for good reasons, such for instance that new matter has come to light which could not have been available at the trial by the exercise of due diligence. That reason cannot apply here, for from what counsel has stated the accused was possessed of the information which is now sought to be put forward as evidence at the time of the trial. It is open to the accused for whatsoever reason he may be advised to petition His Excellency the Governor for a remission of sentence. All that this Court considers itself entitled to do is to direct that the sentences imposed shall run concurrently and not consecutively, for the reason that the two offences arose out of the same set of circumstances. This is the only variation in sentence which we order.
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