Wakilii

Berger v Rex (Criminal Appeals Nos. 23 and 24 of 1941)

East African Court of Appeal · [1940] EACA 54 · 1940 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated criminal appeals from sentences imposed in the Resident Magistrate's Court, Nakuru
Decision
Sentences varied to run concurrently; total custodial period reduced

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application to admit further evidence as the information sought to be adduced was available at trial. The Court varied the sentences to run concurrently rather than consecutively on the ground that both offences arose out of the same transaction, namely the appellant's use of a motor vehicle without a permit and being outdoors without permission as a male enemy alien.

Outcome

Sentences varied to run concurrently; total custodial period reduced

Facts

The appellant, a German male enemy alien, was convicted on his own confession in two separate cases before the Resident Magistrate's Court, Nakuru. The first offence was using a motor vehicle without the requisite permit contrary to Government Notice No. 443/40 clause 1. The second offence was being out of doors at 9:20 p.m. without permission of a police officer contrary to Government Notice No. 339/40 clause 3. Both offences were committed on the same occasion. The appellant was sentenced to imprisonment with hard labour in each case, the sentences to run consecutively. He appealed on the ground that the sentences were excessive and applied for leave to call fresh evidence.

Issues

  1. Whether the application for leave to call fresh evidence should be granted.
  2. Whether the sentences imposed were excessive.
  3. Whether sentences for offences arising out of the same transaction should run concurrently or consecutively.

Orders

  • Application for leave to call fresh evidence refused.
  • Sentences to run concurrently instead of consecutively.

Rules and key headnotes

Criminal Procedure — Fresh Evidence on Appeal — Grounds for Admission
An application to admit fresh evidence on appeal will be entertained only for good reasons, such as new matter coming to light which could not have been available at trial by the exercise of due diligence. Evidence that was available to the accused at trial will not be admitted on appeal.
Sentencing — Concurrent versus Consecutive Sentences — Offences from Same Transaction
Where two offences arise out of the same set of circumstances or transaction, sentences should run concurrently rather than consecutively.
Executive Clemency — Power of Petition to Governor
An accused person may petition the Governor for remission of sentence for whatever reason the accused may be advised, independent of the appeal court's powers.

Legislation cited (3)

  • Defence Regulations Regulation 18
  • Government Notice No. 443/40 clause 1
  • Government Notice No. 339/40 clause 3

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Berger v Rex (Criminal Appeals Nos. 23 and 24 of 1941) [1940] EACA 54 (1 January 1940)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.