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R. v. Herzon s/o Magori Crim. App. 905-D-69; 30/1/70. Georges, C. J.

 


R. v. Herzon s/o Magori Crim. App. 905-D-69; 30/1/70. Georges, C. J.

The respondent in this matter was charged with corrupt transaction c/s 3 (10 of the Corruption Ordinance. It was alleged that being a clerical officer in the Immigration department he had corruptly obtained from Daya Lakshman for himself the sum of Shs. 150/- as a reward for doing a favour to said Lakshaman in relation to his principal’s affairs, namely the preparation of a passport for Lakshman. In the alternative he was charged with attempting to obtain money by false pretences. The particulars to that charge alleged that with intent to defraud he had obtained Shs. 150/-from Daya Lakshman by falsely pretending that the standard fees for a book passport for a Zanzibar citizen was Shs. 150/- which was not in fact  the case. Plans were laid for a trap. Sub-Inspector Adam Limu was in charge. He received Shs. 150/- all in notes. He recorded their numbers. He also had anthrecene put on them. He gave these notes to Lakshman and instructed him to go to the Immigration Office and see whether or not the respondent would accept the money. The respondent did accept the money.

The respondent was not a gazetted Immigration Officer. He was a clerk and was not authorized in any way to sign passports. In cross-examination Lakshman stated that he did not know whether the respondent wanted the 150/- as a bribe, but that Mr. Kubaga had told him that this was what it was. The prosecution witness stated that Lakshman said that the clerk wanted the money to expedite the process of the passport. The trial magistrate held that there was no case to answer on the count of obtaining money by false pretences. From this decision there has been no appeal. He called on the respondent to answer the charge of corruption. The respondent gave evidence on oath admitting having received Shs. 150/- from Lakshman. He agreed that Lakshman had come to him that day and had shown him a receipt for a passport and asked him whether it was ready. Before he could begin looking for the passport Lakshman had told him that the taxi driver wanted Shs. 5/- for the taxi and asked him to help him with change. He asked him to find change for 100/- so that he could pay his fare. He had gone to the cashier to get the change. He had 100/- in his right hand and 50/- in his left. He gave the 100/- to the cashier who asked him to wait and in about a minute the police men came and took him away. He denied having received the money as a bribe or having asked for the money in the first place. The trial magistrate acquitted the respondent.

            Held: (1) “I must say at the outset that the judgment of the trial magistrate is unsatisfactory. One cannot stress too strongly the importance of subjecting evidence to analysis before arriving at any conclusion upon it. It is not enough merely to set out conclusions without setting out the process of reasoning which has led to them. There was no analysis of the evidence in this case. The trial magistrate set out the following principles of law: - ‘Corruption cases are some of the cases where police traps are allowed in order to obtain evidence. The reasons for this I suppose is that such offences are easy to commit but difficult to detect. Normally no corroboration is required of the police agent because the agents’ complicity goes only to the actus reus and his only part is to secure evidence ….” With this statement I entirely agree. Shortly afterwards, however, the magistrate went on to say:- “It can reasonably be believed as I hold that Lakshman was the instigator and used the trap to secure the commission of the offence. His evidence as the defence submitted needed to be corroborated by cogent evidence. In the circumstances it will be unsafe for me to act on the evidence before me. I cannot do otherwise but to acquit the accused and I accordingly do so.” Had the magistrate analysed the evidence before setting out this conclusion he would have realized that there was no evidence at all that Lakshman had instigated the offence. (2) “It is my view also that even in case where it could be said that a police agent has instigated an offence by being responsible for the suggestion that it be committed this agent could not be described as an accomplice, in the ordinary sense of the term, whose evidence needs corroboration. This is so because, as the trial magistrate quite rightly pointed out, the complicity goes only to the actus reus. There is never any intention on the part of the agent to commit an offence…… the agent may be a person who has a direct interest in the success of the prosecution especially in the case in which the suggestion came originally from him. Such a case was Parentis v. R. (1937) 1 Tanganyika L.R. p. 208 in which the two police decoys were paid by results, obtaining only half the wages where there was no conviction. Up to the time they gave evidence in that particular case they had not been paid for their services on that occasion ….. It is clear therefore that corroboration was required in that not because the evidence

Given for the prosecution was obtained by a trap but because of the character of the decoys and their methods of payment. None of these considerations are applicable in this case and I am satisfied that the trial magistrate misdirected himself when he said that there was need for corroboration.” (3) “It is perfectly proper for the police in a case like this where a report has been made by an independent person to plan a trap in order to catch a potential offender. It is also perfectly proper in the case where the police have good reason to think that a certain person habitually commits an offence proof of which is difficult to obtain to send a decoy to him with the view of discovering whether or not he would respond to an offer and if facts commit an offence. What the police ought not to do is to persuade someone who is clearly reluctant to do so into setting off on a course of criminal conduct. Quite obviously in the process of obtaining evidence it will be necessary for them to participate in the offence. In a case of this nature for example money has to be handed over as a bribe. They should, however, refrain from doing anything more that is absolutely necessary for the purpose of obtaining the evidence required for conviction …..” (4) Appeal allowed retrial ordered.

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