Wakilii

Kara and Others v Rex (Criminal Appeals Nos. 88, 89 and 90 of 1934.)

East African Court of Appeal · [1937] EACA 191 · 1937 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from conviction in the Supreme Court at Mombasa for offences under the Dangerous Drugs Ordinance
Decision
Convictions and sentences upheld; appellants to serve concurrent terms of imprisonment with hard labour

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a witness who instigates an offence for the purpose of detecting crime and capturing offenders is an agent of justice, not an accomplice, and his evidence does not require corroboration. A spy's complicity extends only to the actus reus and not to the mens rea, and therefore he is not truly an accomplice. The trial judge has absolute power under section 304 of the Criminal Procedure Code to give effect to his own views notwithstanding the unanimous opinion of assessors. The appeals against conviction and sentence were dismissed.

Outcome

Convictions and sentences upheld; appellants to serve concurrent terms of imprisonment with hard labour

Facts

The three appellants were convicted of offences under the Dangerous Drugs Ordinance. The first appellant (father) received four years imprisonment with hard labour; the second and third appellants (sons) received three years each. The conviction rested largely on the evidence of Mr. Lees, an ex-police officer and taxi-cab proprietor. Lees testified that after suspecting his friend Captain Francis was affected by drugs, he decided to suppress the drug traffic in Mombasa. On 8 February, Lees approached the appellants and arranged to purchase 500 grains of morphine salt. On Saturday, the appellants supplied the drugs for Sh. 637/50, paid by cheque. Lees immediately informed the police and handed over the drugs. During a subsequent visit by the third appellant, a police inspector was hidden under a table. The first appellant was arrested at the bank when attempting to cash the cheque. The defence claimed Lees visited only once to settle a promissory note debt of Sh. 750 owed by Captain Francis, which was reduced to Sh. 637/50. The assessors unanimously favoured acquittal, but the trial judge convicted all three appellants.

Issues

  1. Whether a witness who instigates an accused to commit an offence for the purpose of detecting crime is an accomplice requiring corroboration of his evidence.
  2. Whether the trial judge was entitled to differ from the unanimous opinion of the assessors under section 304 of the Criminal Procedure Code.
  3. Whether the sentences imposed were so severe as to warrant interference by an appellate court.
  4. Whether exceptional circumstances existed to justify release on bail pending appeal.

Orders

  • Appeals against conviction dismissed.
  • Appeals against sentence dismissed.
  • Application for release on bail pending appeal dismissed.

Rules and key headnotes

Evidence — Accomplice Evidence — Police Spy or Agent Provocateur — Whether Corroboration Required
A witness who instigates an accused to commit an offence for the purpose of detecting crime and capturing offenders is an agent of justice, not an accomplice, and his evidence does not require corroboration. The motive of the witness in instigating the commission of an offence is determinative: if the object is the detection of the offence and the enforcement of public justice rather than the perpetration of the offence, the witness is not an accomplice.
Evidence — Accomplice — Police Spy — Distinction Based on Mens Rea
A spy, since his complicity extends only to the actus reus and not to the mens rea, is not truly an accomplice and therefore does not require corroboration of his evidence.
Criminal Procedure — Assessors' Opinion — Judge's Power to Differ
Section 304 of the Criminal Procedure Code confers an absolute power on the judge to give effect to his own views notwithstanding the opinion of assessors. Assessors are not judges of fact so as to bind the judge; the judge must decide the case on the facts as well as the law, though he will have regard to the assessors' opinions.
Criminal Procedure — Sentence — Appellate Interference
An appellate court will not interfere with a sentence merely because it is severe, unless the sentence is so severe as to be manifestly excessive having regard to the nature and gravity of the offence and the circumstances of the case.
Criminal Procedure — Bail Pending Appeal — Exceptional Circumstances
Bail pending appeal should not be granted unless there are exceptional circumstances. A convicted person is presumed guilty and it is for him to show that the decision was wrong. The fact that assessors gave a reasoned opinion in favour of acquittal does not constitute an exceptional circumstance justifying release on bail pending appeal.

Legislation cited (3)

  • Dangerous Drugs Ordinance (Kenya) 1932
  • Criminal Procedure Code (Kenya) s.304
  • Penal Code s.34

Cases cited (16)

  • Cr. Appeal 2 of 1934 (E.A.C.A.)
  • No. 62 of 1933, Tanganyika Territory Civil Appeal
  • Cr. Revision 105/33 Tanganyika Territory
  • Uganda, L.R. (Vol. II) p. 76
  • Emperor v. Muthra Prasad
  • Rex v. Mullins (1848) 3 Cox 509
  • Reg v. Dowling (1848) 3 Cox 526
  • Rex v. Despard (1803) 28 How. State Trials
  • Rex v. Bickley (1909) 2 Cr. App. Rep. 53
  • Emp. v. Chaturbhuj Saha (1910) 28 Cal. 96
  • Waxman, 22 Cr. A.R. 81
  • Newbury v. Elman, 23 Cr. A.R. 66
  • Steward 23 Cr. A.R. 68
  • Harding, Turner & King, 23 Cr. A.R. 143
  • Starkie 24 Cr. App. Rep. 1
  • Sankar 14 Bom. L.R. 710

Full judgment

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Kara and Others v Rex (Criminal Appeals Nos. 88, 89 and 90 of 1934.) [1937] EACA 191 (1 January 1937)
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.