WALDO TRENCH FOX V. COMMISSIONER OF POLICE

Harragin. C.J. In this case the appellant, who is an educated man of years experience in this country, appeals against a conviction of larceny contrary to section 390 of the Criminal Code the particulars of which read as follows:- “The complainant complains that you Waldo Trench Fox on the 7th day of April, 1945, at Lagos in the Colony of Nigeria, stole seven £1 postal orders the property of the Postmaster-General and thereby committed an offence punishable under section 390 of the Criminal Code.”

Appellant was originally charged on 10th April, 1947, with an offence contrary to section 390 (2) of the Criminal Code to which he pleaded not guilty and consented to be tried summarily, but on 18th April, 1947, the Crown was permitted by the Court to amend the charge to the lesser offence under section 390 and to amend the date of offence originally charged, so that the charge was finally read as stated above.

Counsel for the appellant stated that he had no objection to the amendment and the case proceeded, with various adjournments until 30th May, 1947, by which time the Crown had closed its case and the appellant had given evidence in his own defence.

On 30th May, 1947, Crown Counsel pointed out to the Magistrate that, as the appellant had not pleaded to the amended charge of 18th April, 1947, the whole of the subsequent proceedings were a nullity and suggested that the trial should start de novo from that point. Sections 162 and 163 of the Criminal Procedure Ordinance permit the Court to amend an imperfect charge but section 164 states categorically that, where an alteration is made to a charge, the “Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge” , and section 354(3) of the Criminal Procedure Ordinance reads as follows:- “If the Magistrate shall not inform the accused of his right to be tried by a judge of the Supreme Court or with a jury, as the case may be, the trial shall be null and void ab initio unless the accused consents at any time before being called upon to make his defence to be tried summarily by a Magistrate in which case the trial shall proceed as if the accused had consented to being tried summarily by a Magistrate before the Magistrate proceeded to hear evidence in the case.”

Counsel for the appellant objected to the application of the Crown, arguing that “only the Supreme Court or a higher Court can declare proceedings a nullity” .

The Court then proceeded to make the following ruling:- “After the accused had given his evidence in this case, it was discovered that on the amendment of the charges, his plea was not taken afresh.

“I have tried to find authorities on the point whether or not fresh pleas are absolutely necessary. I have not been able to lay my hands on any. I should think that, if an amendment is slight and the accused and his Counsel are well aware of the import of the amendment, it makes no difference whether or not his plea is taken afresh.

“However, I think it is essential in the interest of both sides to start the proceedings afresh, especially as in this case the amendment is not of a slight , nature” and the amended charge was read to the appellant, who pleaded not guilty and elected to be tried summarily.

The case was heard de novo and on 6th August, 1947, the appellant was convicted of the offence charged. He appealed to the Supreme Court who on 27th September, 1947, dismissed the appeal and confirmed the sentence. It is against this judgment that he comes before this Court having obtained the leave of the Court to argue his case on the facts as well as on the legal points raised. The appellant’s grounds of appeal are as follows:- “1. That the case of Police v. Waldo Trench Fox had already been heard or tried by His Worship Adetokunboh Ademola, Esq., Magistrate, on the following dates: “10th April, 1947 18th April, 1947 5th May, 1947 19th May, 1947 30th May, 1947. “As a result of which the defendant was entitled to be acquitted of the charge on which he was subsequently tried and convicted but that owing to the improper and incorrect conduct of such first trial the defendant was not so acquitted as he was entitled to be, complaint whereof is made more specifically in paragraph 4 of these Grounds of Appeal contained hereunder. “2. That the decision was altogether unwarranted, unreasonable and cannot be supported having regard to the weight of the evidence. “3. That the learned Magistrate was in error in point of law in that he  failed to exercise against the complainant the presumption set forth in the I Evidence Ordinance No. 27 of 1943, section 148 (d) with regard to the failure of one Parkinson to give evidence when in the circumstances it was right and reasonable so to presume and the learned Magistrate misdirected himself on this point. “4. That an illegality substantially affecting the merits of the case was committed by the learned Magistrate in the course of the trial as specified hereunder: “That the learned Magistrate on the 30th day of May, 1947, failed to acquit the defendant of the charge on which he was subsequently convicted in breach of the Criminal Procedure Ordinance No. 42 of 1945, section 75 (1) (b) (ii). “Alternatively, the learned Magistrate was wrong in point of law on this point. “5. That the trial judge at the Appeal Court was therefore wrong in law to uphold the decision of the trial Magistrate.”

The case for the Crown rested on the following facts which the trial Court found to be proved and which the appellant does not deny but seeks to explain away.

The appellant at one time was the Chief Censor and as such there came into his hands after various vicissitudes seven twenty-shilling postal orders which had been sent to Nigeria by persons stationed in the Far East. It was subsequently found that the postal orders had never reached their proper destination and many months later, after the appellant had retired from the office of Chief Censor, were found to have been cashed by him in England.

The appellant admits that the postal orders were handed to him in the course of his duties but alleges that he passed them on via his messenger to one of his junior officers by the name of Parkinson, for necessary action.

Later, Parkinson and the appellant returned to England and he says that Parkinson sent him these postal orders together with some others in payment of a debt that he Parkinson owed the appellant. He is quite satisfied that these were the postal orders in question as they were out of date, and he was obliged to obtain the written explanation of Parkinson as to the cause of the delay before the Postmaster would cash them. The appellant further states that he has Parkinson’s letters of explanation in his safe at home.

It is on record that the prosecution made every effort to get Parkinson to come out and give evidence, as soon as they heard the appellant’s line of defence but he was unwilling to come and Counsel for the Crown argues that no inference can be drawn from his absence for or against the prosecution or the accused.

The non-production of Parkinson's letter to the appellant, which he states is in his safe in England is, however, very much more difficult to understand nor has any serious explanation been offered of this omission by the appellant.

The trial Court for the reasons set out in the judgment accepted the evidence for the Crown which was hardly in dispute and rejected the explanation offered by the appellant.

The appellant has argued at great length in support of ground 3 of his Grounds of Appeal that it was the duty of the Crown to produce Parkinson and that under section 148 (d) of Ordinance 27/43 it must be presumed that his evidence would be unfavorable to the Crown. The section reads as follows:- “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the Court may presume: “(d) that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it; “

The operative portion of this sub-section lies in the words “evidence which could be and is not produced” and as it would appear that every effort was made to produce Parkinson without success, this section can hardly be held to apply to the facts of this case. It must also be remembered that it was never part of the Crown case that Parkinson had been in possession of the notes at any time.

So much for the law with regard to the non-appearance of this witness, even though we cannot agree with the Magistrate's statement at the top of page 30 of his judgment which says that “he” (meaning accused) “ could call Parkinson if he so desired “. It is difficult for us to imagine any method by which the appellant could succeed in producing Parkinson where the Crown failed. Had the matter rested there, there might have been some substance in the argument that the appellant should have been given the benefit of the doubt; though the accounting for the possession of stolen property by reference to an unobtainable witness must always be a matter for most careful scrutiny by the Courts; but unfortunately for the appellant his evidence goes further. As is mentioned above he states that he has a letter from Parkinson in his safe in England which has direct bearing on the subject matter of this case. Why has this not been produced? Whatever difficulty there may be in obtaining the presence of Mr. Parkinson, it can hardly be suggested that it was equally difficult for the appellant to obtain a letter from his own safe and it was quite competent for the trial Court to follow the dictates of the above-quoted section 148 (d) of the Evidence Ordinance and presume that the production of the letter (if it exists) would be unfavorable to the appellant.

The trial Court has heard the evidence of the appellant and disbelieved each and every one of his explanations including the payment in Nigeria to two Hausa men who alleged that Parkinson owed them £12 thereby creating the debt between himself and Parkinson. The appellant states that, on the strength of their assertion and without reference to Parkinson, he paid the debt as he was the head of Parkinson’s department. It is significant that no witness has been called to substantiate these facts, neither the Hausamen nor Parkinson’s small boy who appellant says he called to substantiate the alleged debt, nor is any mention made of a receipt.

While it may be open to this Court to set aside a conviction on grounds relating to findings of fact by the trial Court it will only do so in such cases as those, for instance, in which there is no evidence to support those findings, or the findings are unreasonable having regard to the evidence, or the trial Court has drawn wrong inferences from the proven facts. It will seldom, if ever, reverse such findings where they are based on the credibility of witnesses which the trial Court has had before it. In the present case it cannot be said that upon the evidence there was no good reason to reject the explanation of the facts tendered by the appellant, and if, having rejected the explanation as untrue, the learned Magistrate concluded that the appellant stole the postal orders within the meaning of section 390 of the Criminal Code as defined by section 383 thereof, we cannot say that he was wrong in this conclusion. There is evidence that the postal orders came into possession of the appellant in the course of his official duties and that he subsequently converted them to his own use. It was open to the Magistrate on the evidence to find that the appellant's explanation of this conversion was false and therefore could not reasonably be true. He did so find and we cannot say that his finding was not supported by the evidence, that it involved any inference which was not justified thereby or that it was unreasonable. Ground 2 of the Grounds of Appeal therefore fails but there remains one point of law for consideration. It is the submission of appellant that it was not competent for the Court to declare its own proceedings a nullity as it did in effect on the 30th May, and that the appellant was entitled to an acquittal on the original charge; that although there exist legal ways and means by which an error such as that made by the Magistrate can be corrected none of these were resorted to and the conviction on the second hearing was therefore bad in law. Now let it be assumed that the trial Court had not been reminded that the appellant had elected to be tried before the Magistrate on the amended charge nor pleaded thereto until Counsel for the appellant addressed at the end of the case. What could the Court have done? Clearly on the question of election the Magistrate would have been forced on reference to section 364 (3) to declare the trial “null and void ab initi”o and we are not prepared to hold that it is necessary to convict the accused in order that the Supreme Court may make the necessary declaration. But in this case the question is more involved in that the appellant had never pleaded on the amended charge and the only question for consideration is whether a Court of summary jurisdiction can, on finding that a case is improperly before it, start the case de novo.

We are of the opinion that the failure to charge the appellant rendered the whole proceedings null and void, that it would have been improper for the Magistrate to have delivered a judgment in a case that he knew was improperly before him, and that it was competent for him to commence the hearing de novo. The appellant not having been charged and not having pleaded was never in fact in jeopardy.

The appellant argues that this procedure, if legal, was most unfair to him as he disclosed his defence in the abortive trial. The case of Rex v. Marsham (1) would appear to be a sufficient authority on this point for there a Police Magistrate convicted the appellant of an assault, but later the same day his attention was drawn to the fact that one of the witnesses for the prosecution had not been sworn. The Magistrate at once retried the case and passed the same sentence as he had done on the first occasion. Held, discharging the rule nisi to quash the conviction, that the applicant had not been put in peril on the first trial and that the Magistrate was justified in taking the course he did: vide Stone’s Justices’ Manual, 1946, pages 205, 206.

A witness of truth cannot be prejudiced by being asked to repeat a simple story twice.

In any event the learned Judges saw no objection to practically identical procedure in the above quoted case.

On the question of sentence the accused has stated that, if he is guilty, he richly deserves the sentence awarded with which statement we are in agreement.

The appeal is dismissed and the sentence confirmed. Sentences to run from 27th September, 1947.

Appeal dismissed.