Alimasi & Anor. v. R. Crim. App. 501/2/-D-70; 23/8/71; Biron J.

Alimasi & Anor. v. R. Crim. App. 501/2/-D-70; 23/8/71; Biron J.

The two appellants were convicted together with a third man who has not appealed, of stealing corrugated iron sheets belonging to the Forest division of the Ministry of Agriculture, Food and Cooperatives. During the trial, as the learned judge remarked, the ‘magistrate misdirected himself in law on nearly every conceivable aspect’. In addition, the trial magistrate relied on a statement made by the second appellant to a Police Officer incriminating the other two accused. The second appellant denied having made the statement and claimed that the police Officer had written the statement which he was asked to sign. The main issues before the court were first, what approach should an appellate court take i. e. whether or not the appellants were entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon; second, whether or not the alleged statement by the second accused to the Police Officer incriminating the other accused was admissible in evidence.

            Held: (1) “I propose to examine the evidence by way of rehearing and disregard the misdirection of am not particularly concerned as to whether, if the magistrate had directed himself properly on the law, he would necessarily have come to the conclusion he did, as I consider that irrelevant if the function of this court on appeal is, as laid down by the authorities, that of a rehearing. It should perhaps be added that if the misdirection are based on, or concerned with, the credibility of the witnesses, then obviously this Court cannot substitute itself for the trial court, which had the advantage of seeing and hearing the witnesses, an advantage denied an appellate tribunal.” [Citing Gregory Odico Roser v. R., Crim. App. 495 of 1970p Coghlan v. Cumberland, (1898) 1 Ch. 704; Scott v. Musial (1959) 2 Q. B. D. 429]. (2) “In his judgment the magistrate relied on a statement made by the third accused incriminating  the other two accuseds to a Police Officer, a Detective constable Phillimon, who gave evidence, but nowhere in his evidence does this witness state or even suggest that he took any statement at all from the third accused. And in his evidence when it was put to him, the third accused denied having made any statement to a Police Officer, and alleged that a Police Officer had his self written out a statement which he asked him to sign, and he denied its contents. It was therefore inadmissible against the third accused, as it was not properly produced, particularly as the third accused denied having made it. And it was doubly inadmissible against the other accused as expressly laid down in section 33 of the Evidence act, which reads; - “33. – (1) When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court shall not take into consideration such confession as against such other person but may take it into consideration only against the person who makes such confession. (2) In this section offence includes the abetment of or attempt to commit, the offence.”

N. B. After reviewing the evidence, the judge dismissed the appeal.