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Rex v Karia and Mawji (Criminal Appeals Nos. 24 and 25 of 1948, Consolidated)

East African Court of Appeal · [1949] EACA 30 · 1949 Appeal Partly Allowed — Convictions Upheld, Sentences Reduced AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions in the High Court of Tanganyika for conspiracy to export diamonds and unlawful possession of diamonds
Decision
Convictions upheld but sentences reduced. First appellant sentenced to six years imprisonment with hard labour. Second appellant sentenced to eight years imprisonment with hard labour with fine quashed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that it would not disturb a trial judge's findings on witness credibility absent clear failure to consider material circumstances or acceptance of internally inconsistent testimony. The word 'found' in possession offences is not confined to seizure by officers but includes proof of knowing and illegal possession exhibited at any time. An agreement to conspire may be deduced from acts raising a presumption of a common plan. The prosecution has discretion over which witnesses to call and need not call all named witnesses. While convictions were upheld, sentences were reduced as excessive for first offenders.

Outcome

Convictions upheld but sentences reduced. First appellant sentenced to six years imprisonment with hard labour. Second appellant sentenced to eight years imprisonment with hard labour with fine quashed.

Facts

The appellants were convicted jointly of conspiracy to export diamonds from Tanganyika and individually of unlawful possession of diamonds. On 2 June 1948 in Mwanza, witness Caetano de Souza testified that the second appellant showed him approximately 400 white stones in a cloth bag, identified them as diamonds, and asked de Souza to accompany the first appellant to Nairobi with the bag. De Souza refused. Two other witnesses testified to seeing the first appellant with stones on the same date. On 17 June 1948, diamonds were found in the first appellant's suitcase in Nairobi. The trial judge sitting with two assessors (who disagreed) convicted both appellants, finding de Souza a truthful witness and the second appellant completely unworthy of credit. The first appellant received eight years imprisonment and the second appellant ten years plus a fine of Sh. 20,000.

Issues

  1. Whether the Court of Appeal should disturb the trial judge's findings on credibility of witnesses where the judge sat without a jury.
  2. Whether the word 'found' in the Diamond Industry Protection Ordinance requires physical seizure by officers or can be satisfied by proof of possession exhibited at any time.
  3. Whether an agreement to conspire can be deduced from acts raising a presumption of a common plan.
  4. Whether the prosecution is obliged to call every witness whose name appears on the back of the information.
  5. Whether the sentences imposed were excessive in all the circumstances.

Orders

  • Appeals against conviction dismissed.
  • Sentence of appellant No. 1 (Gokaldas) reduced from eight years to six years imprisonment with hard labour.
  • Sentence of appellant No. 2 (Alibhai Mawji) reduced from ten years to eight years imprisonment with hard labour.
  • Fine of Sh. 20,000 imposed on appellant No. 2 quashed.
  • Sentences to run concurrently with the two-year sentences on the conspiracy counts.

Rules and key headnotes

Appeals on Fact — Principles Guiding Appellate Review of Trial Judge's Credibility Findings
Where a case turns essentially on fact and the trial judge has seen and heard the witnesses, an appellate court will not disturb the judge's findings on credibility unless the judge clearly failed to take account of material circumstances or probabilities, or gave credence to testimony that on careful analysis is substantially inconsistent with itself or indisputable fact.
Possession Offences — Meaning of 'Found in Possession'
The word 'found' in a statutory possession offence is not confined to a finding by officers seeking the thing for seizure, but may be supported by proof of the thing having been seen in the defendant's possession knowingly and illegally and exhibited by the defendant as his property at any time and under any circumstances.
Conspiracy — Proof of Agreement
An agreement to conspire may be deduced from any acts which raise the presumption of a common plan. Where two persons pursue the same object by the same means, one performing one part of an act and the other another part so as to complete it with a view to attaining the object they are pursuing, a court may draw the conclusion that they have been engaged in a conspiracy to effect that object.
Prosecution Discretion — Calling of Witnesses
No obligation rests upon the prosecution to call every witness whose name appears on the back of the information. Although the Crown must ensure that every such witness attends trial so that witnesses not called by the prosecution are available to the defence, it is a matter in the discretion of the prosecution to tender such witnesses for cross-examination by the defence and not a right that can be claimed by the defence.
Sentencing — Maximum Sentences for First Offenders
Maximum sentences, especially when severe, are not usually applied to a first offence. An appellate court will intervene and reduce a sentence when, after reviewing all circumstances, it concludes that the sentence imposed is excessive, even where the trial judge properly considered all relevant factors.

Legislation cited (5)

  • Tanganyika Penal Code s.385
  • Diamond Industry Protection Ordinance (Cap. 103) s.9(1)
  • Diamond Industry Protection Ordinance (Cap. 103) s.3(1)
  • Tanganyika Criminal Procedure Code s.283(2)
  • Indian Evidence Act s.10

Cases cited (9)

  • Khoo Sit Hoh v Lim Thean Tong (1912) AC 323
  • Watt v Thomas (1947) 176 LTR 498
  • Attorney General v Delano (146 ER 383)
  • R v Murphy (1837) 8 Car & P 297
  • Rex v Karioki (Criminal Appeal No. 93 of 1948)
  • Adel Muhammed el Dabbah v Attorney General for Palestine (60 TLR 456)
  • R v Harris (1927) 2 KB 587
  • R v Woodhead (1847) 2 C & K 520
  • R v Hopley (Criminal Appeal No. 229 of 1948)

Full judgment

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

Rex v Karia and Mawji (Criminal Appeals Nos. 24 and 25 of 1948, Consolidated) [1949] EACA 30 (1 January 1949)
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.