Anupchand Meghji Rupa Shah & Another V Republic  EKLR
|Criminal Appeal 86 of 1983||26 Aug 1984|
James Onyiego Nyarangi, Alan Robin Winston Hancox, Alister Arthur Kneller
Court of Appeal at Mombasa
Anupchand Meghji Rupa Shah & Vijay Kumar Meghji v Republic
Anupchand Meghji Rupa Shah & another v Republic  eKLR
Shah v Republic
Court of Appeal, at Mombasa August 26, 1984
Kneller, Hancox JJ & Nyarangi Ag JA
Criminal Appeal No 86 of 1983
(Appeal from the High Court at Mombasa, Bhandari J)
Evidence - corroboration - meaning of corroboration - duty of trial judge to point out corroboration evidence to assessors - failure of judge to discharge duty - whether such failure fatal to conviction.
Evidence - confession - substantially truthful confession – confession containing mistakes - whether such confession may be relied on.
Criminal Practice and Procedure - trial within a trial - purpose of - assessors - presence of assessors in trial within a trial allowed at request of defence counsel - whether presence of assessors proper – whether accused prejudiced by presence of assessors - whether conviction proper.
Assessors - trial within a trial - whether assessors should be present in trial within a trial - whether presence of assessors prejudicial to accused person - opinion of assessors - when and how opinion of assessors presented to court - corroboration evidence - duty of trial judge to point out corroboration evidence to assessors.
Arrest and Detention - length of detention period - arrest and detention without warrant-interrogation and recording of statement from detainee by police - medical examination of detainee done in presence of police officer - appellants detained for three days - whether detention reasonable - circumstances under which detained person will be denied advocate - The Judges’ Rules.
Sentencing - multiple counts - how sentence passed where accused convicted of more than one count - sentence of death - failure to specify the count for which sentence is passed - whether multiple sentences of death proper - Criminal Procedure Code (cap 75) section 169(2).
The appellants were detained and thereafter charged with two counts of murder following the deaths of one Kaushik and his wife Ranjan, who had been their business rivals. The deceased had been found dead in their car with various injuries consistent with an attack by two people, one with a knife and the other with a gun. Near the deceased’s car was a car which had been hired by the appellants, the keys for which they claimed in their report made to the police the night before the discovery of the bodies of the deceased, had been stolen from the first appellant by two persons at gunpoint. A policeman who had been on duty at the place at about the time when that incident was alleged to have taken place, however, had seen and heard nothing of it. Shortly after the time that one person living near the area where the bodies of the deceased were found had heard what sounded like gunshots, one Juma took two passengers and drove them to their home, one of whom he would later identify to the police as the first appellant. A torch was found in the first appellant’s house which Juma said was similar to one that had been held by one of those passengers.
The appellants were formally arrested and detained in various but separate cells. Both were interviewed separately and interrogated by police officers without prior caution. No inquiry statement was taken from either appellant but it was claimed that as a result of something arising from his interrogation, the first appellant had led the police to the crime scene and there, it was further claimed, and the first appellant denied, he had pointed out a magazine of a pistol. The first appellant was taken to a police officer who, it was alleged, after charging him with the murders of the deceased, cautioned him and wrote his reply, but the appellant said that he was forced to write it. The second appellant also recorded a statement after being charged and cautioned and the two statements amounted to confessions. Though the appellants and their advocates alleged that they had been ill-treated by the police, their examinations by a doctor, which had been done in the presence of a policeman soon after the making of the statements, showed them to have been in good health with no visible signs of recent injury. The appellants had been denied access to their families and advocate for three days and five hours after which they were taken to court. Their confession statements were admitted in evidence after a trial within a trial which, upon the request of their advocate, was conducted in the presence of the assessors. At the end of the trial, every assessor’s opinion to the court was that the appellants were guilty of murder. The appellants were convicted of each murder and were sentenced to death. They both appealed.
1. When a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge, he should, without delay, cause that person to be charged or told that he may be prosecuted for it. It is unlawful and unwise to do otherwise because failure to comply with the Judges’ Rules provides criminals with defences.
2. As there is no statutory maximum period for which the police can detain someone taken into custody without a warrant for murder, the period can only be for what is a reasonable time depending on all the circumstances of the case. In the circumstances of this case, the detention of the appellants for 3 days and five hours was not unreasonable.
3. It is not right to detain people in isolation for too long or whirl them around in different police stations for that would disorientate them and make it difficult to know what weight to give their answers or actions - R v Reid  Crim LR 514
4. A detained person should not be denied an advocate except for good reason as, for example, in cases involving immediate risk to life, limb and property. Where it is done because the police believe the advocate would advise the detainee not to answer questions put to him by them or deliberately give them unhelpful information, that is not a good reason for it should be supposed that the advocate will act with integrity until the opposite is known or suspected. Lemsatef v R  2 All ER 835. Even if this practice is breached, however, there remains, as with other rules of practice, the discretion vested in the trial judge whether to admit or not to admit the confession - R v Reid  Crim LR 514
5. The presence of police officers at medical examinations of detainees is deprecated - Paul Nakwale Ekai v Republic Criminal Appeal No 115 of 1981
6. Corroboration is some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence- Clynes  44 Cr App R 158, 161. The trial judge had set out ten matters as being independent admissible evidence which he accepted as corroboration yet there were only three of them which could be termed as corroboration.
7. A trial judge has a duty to assist the assessors by indicating the evidence which they are entitled to treat as corroboration and while failure to do so could be fatal to a conviction in a trial by jury where such matters are admissible, where the case against the accused had been so overwhelming that there was no miscarriage of justice, it would be right to dismiss the accused’s appeal.
8. When, in a case tried with assessors, the case for both sides is closed and the judge has summed up the evidence for the two sides, he has to ask each of the assessors to state his opinion orally and the judge must record it.
9. The purpose of a trial within a trial is to determine the voluntariness of the statement tendered for the prosecution, because a statement by an accused person is not admissible in evidence against him unless it is proved to have been voluntary.
10. It may happen that an accused person who has originally denied all knowledge of a crime later admits he committed it. The person best able to get the feeling and effect of the circumstances in which a confession was made is the trial judge, and his findings of fact and reasoning are entitled to respect.
11. A substantially truthful confession may contain mistakes but in an appropriate case a trial judge may rely on it despite its mistakes and if a material element in it is demonstrably untrue and it must have been known to its author, it cannot be relied on - Aneriko v Uganda  EA 193
12. As a general rule, the assessors should be absent during the whole of the determination as to the admissibility of an extra-judicial statement because where the evidence relating to a challenged statement is heard in the presence of assessors, whether the assessors are there as spectators or not, the accused person will be prejudiced because should the judge rule against admissibility, the assessors will have heard a great deal of inadmissible evidence, or, if not inadmissible, evidence going to the issue of something which has become inadmissible. In this case, there was no prejudice occasioned to the appellants by the course taken in the trial within a trial.
13. The decision in Ajodha v The Queen  2 All ER 193, on which the court had relied in acceding to the defence’s request that the assessors be present during the trial within a trial was given in relation to different conditions and circumstances. It was not of binding authority and appears to have been doubted by the Court of Appeal in R v Airey The Times 19th June, 1984.
14. The trial judge, in sentencing the appellants to death, had failed to specify for which count the sentence was passed in accordance with section 169(2) of the Criminal Procedure Code (cap 75) and the appellants should have been sentenced to death on each count.
15. (Obiter) It is undesirable, because inhuman, that double or multiple sentences of death be passed and they can and should be avoided where the charges allege murder. It is not improper to file an information containing two or more counts of murder and it is within the discretion of the court to allow or disallow this. Generally, however, the court should ask the Republic to choose the one with which it prefers to proceed and leave the other or others on the court file until further order.
16. (Obiter) The pre-1964 Judges’ Rules of England apply in Kenya and are rules of practice - Anyangu v Republic  EA 239.
1. Regina v Rennie The Times November 7 1981;  1 All ER 385;  1 WLR 64
2. Aneriko v Uganda  EA 193
3. Anyangu v Republic  EA 239
4. R v Reid  Crim App R (s) 280
5. Lemsatef v R  2 All ER 835
6. Paul Nakwale Ekai v R Crim App No 115 of 1981;  KLR 569
7. Boyd Mackintosh  76 Cr App R 177
8. Ibrahim v Rex  AC 559, 609
9. Tuwamoi v Uganda  EA 84
10. Patrick Joseph Clynes  44 Cr App R 158, 161
11. Leslie Martin, Henry Ansell and Thomas Ross (1934) 24 Cr App R 177, 185
12. Regina v Cullinane (Stephen) The Times March 1 1984
13. Walukau and Musete v R  Cr App R 25 1981
14. Ajodha v The State  2 All ER 193
15. R v Airey The Times 19 June 1984
16. The Queen v Thompson  2 QB 12
17. Mwangi s/o Njoroge v R (1954) 21 EACA 377
18. Kinyori s/o Karuditu v Reginam (1956) 23 EACA 480
19. Gatheru s/o Njagwara v Reginam (1954) 21 EACA 384
20. Turon v Republic  EA 789
21. Okwaro Wanjala v Republic  KLR 114
22. Alaka v Republic  KLR 114
23. Jackson Ndambuki Mutuse v R Mombasa Cr App 66 of 1982 (unreported)
24. Gerald Kamau Kihara v Republic Nairobi Criminal Appeal 10 of 1983 (unreported)
25. Gachuga s/o Thiongo v Rex (1950) 17 EACA 145
26. Mongella s/o Ngui v Rex (1934) 1 EACA 152
1. Criminal Procedure Code (cap 75) sections 36, 169(2), 322(1)
2. Evidence Act (cap 80) section 26
Mr Prinja for Appellant
Mr Metho for Republic