Wakilii

Patel and Another v Reginam (Criminal Appeal No. 44 of 1956)

East African Court of Appeal · [1950] EACA 536 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from the decision of the Supreme Court of Kenya following case stated from acquittal by Magistrate's Court
Decision
Appellants' acquittals set aside. Matter remitted to Magistrate with mandatory order to convict and sentence.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a charge of conspiracy is not a whole and indivisible transaction. Where the Crown proved an agreement between appellants to summon persons selected from a list of 50 names, the conspiracy was proved as to the 21 named persons actually summoned in furtherance of that agreement. The Supreme Court erred in remitting the case with a direction to consider corroboration after expressing its own view on sufficiency, but the facts found disclosed ample corroboration. Appeal dismissed, Supreme Court order varied to mandatory conviction order.

Outcome

Appellants' acquittals set aside. Matter remitted to Magistrate with mandatory order to convict and sentence.

Facts

The appellants were charged with conspiracy to defeat justice by causing 21 named persons to be summoned as jurors unlawfully. The first appellant was senior clerk in the Resident Magistrate's criminal department. The second appellant was a City Councillor. One Harold Whipp faced criminal trial with Shariff before a jury on 24 October 1955. The second appellant provided Whipp with a copy of the official jury list obtained from the first appellant. Whipp selected 50-51 names. The first appellant suppressed 200 juror summonses lawfully drawn and arranged for 50 further names to be drawn on 11 October. He substituted numbers corresponding to Whipp's selections for those actually drawn. Twenty-one summonses were served. The Magistrate found a conspiracy to rig the jury but acquitted on the ground that the Crown failed to prove the 21 named jurors were not lawfully chosen. The Supreme Court ordered remission with directions on corroboration.

Issues

  1. Whether a charge of conspiracy constitutes a whole and indivisible transaction such that proof of agreement to summon specific named persons was required.
  2. Whether the Supreme Court was correct in directing that the matter be remitted to the Magistrate with an order to convict subject to consideration of corroborative evidence.
  3. Whether the Magistrate correctly construed the charge as requiring proof that the 21 named jurors were not drawn by Mr. Sampson on 11th October.
  4. Whether the words 'not having been chosen by law' in the charge constituted a statement of fact to be proved or a description of the unlawful act agreed upon.
  5. Whether the Supreme Court was justified in expressing a view on the sufficiency of corroborative evidence and then remitting the matter to the Magistrate to consider corroboration.

Orders

  • Appeal dismissed.
  • Supreme Court order varied.
  • First and fifth answers of the Supreme Court on the case stated varied.
  • Order of acquittal entered by the Resident Magistrate in respect of both appellants on the fourth count set aside.
  • Matter remitted to the subordinate Court with the opinion of the Court and with an order to the Magistrate to convict both accused on count 4 and pass appropriate sentences.
  • Appellants remanded in custody in Her Majesty's Prison at Nairobi until required to appear before the Resident Magistrate for conviction and sentence.

Rules and key headnotes

Conspiracy — Nature of agreement — Whether whole and indivisible transaction
A charge of conspiracy is not a whole and indivisible transaction. An agreement as a whole may comprise agreement on a number of component factors. Where conspirators agreed to cause persons selected from a list to be summoned and the charge specified particular persons from that list who were summoned, the conspiracy is proved as laid even though the conspirators did not specifically agree which individuals from the list would be summoned.
Conspiracy — Proof of charge — Conviction of named conspirators where persons unknown alleged
Where several persons are charged with conspiring together and with persons unknown, a conviction of the named persons is good although the finding negatives the participation of any person unknown in the conspiracy.
Conspiracy — Construction of charge — Words describing unlawful act agreed upon
In a charge of conspiracy, words stating that persons were summoned 'not having been chosen by law' are part of the particulars of the plot alleged and a description of what the conspirators agreed to do in futuro, not a separate fact to be proved regarding the conspirators' knowledge.
Corroboration — Accomplice evidence — Appellate court finding on sufficiency
Where facts found by a trial court disclose ample corroboration of accomplice evidence, an appellate court on a case stated is entitled to find accordingly and remit the matter with a direction to convict. However, it is not justified in remitting with a direction merely to consider corroboration after itself expressing the view that corroborative evidence was ample, as this renders it difficult for the trial court to act independently.
Corroboration — Case stated — Necessity to consider at time of stating findings
Although it is not necessary for a Magistrate to consider corroboration for the purpose of acquitting an accused, it becomes necessary to consider it when stating a case with findings adverse or potentially adverse to the accused, as those findings may lead to a direction to convict. The Magistrate must be satisfied of the truth of adverse findings with the same precision as if personally convicting on them.
Appeal — New point of law on second appeal — Substantive versus technical objection
While the Court will not allow a formal or technical objection to be taken for the first time on a second appeal, it will not refuse to entertain an important point of substantive law even if raised for the first time on appeal.
Appeal — Case stated — Application of section 381 Criminal Procedure Code
The provisions of section 381 of the Criminal Procedure Code, relating to dismissal of appeals based on error, omission, irregularity or misdirection not occasioning a failure of justice, are applicable to an appeal to the Court of Appeal from a case stated.

Legislation cited (8)

  • Penal Code s.112(a)
  • Criminal Procedure Code s.265(1)
  • Criminal Procedure Code s.367
  • Criminal Procedure Code s.371
  • Criminal Procedure Code s.381
  • Eastern African Court of Appeal Rules, 1954, rule 41
  • Eastern African Court of Appeal Rules, 1954, rule 44
  • Eastern African Court of Appeal Rules, 1954, rule 48(g)

Cases cited (2)

  • Zaverchand Dhanji Shah v R (Criminal Appeal No. 273 of 1955)
  • R. v. Pollman, 170 E.R. 1139

Full judgment

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Patel and Another v Reginam (Criminal Appeal No. 44 of 1956) [1950] EACA 536 (1 January 1950)
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.