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Criminal Procedure-Criminal Procedure Ordinance ,section 165: Amendment of Charge-Accused with Counsel-Counsel not informed of right to recall witnesses.

The appellant was tried with others in the Supreme Court on two counts and convicted. He appealed, without substance, on questions of fact; but the Court raised two points for him: (a) on a point of procedure relating to count 1, and (b) another on the adequacy of the finding on count 2: (the conviction on count 2 was warranted and no more need be said here).

On point (a): The information filed did not name the appellant but only the others; at the close of the Crown case, his name was added and his plea taken. The appellant had Counsel at the trial; the trial Judge did not ask Counsel whether he wished to have the witnesses recalled. It is provided in section 165 of the Criminal Procedure Ordinance that where an alteration or addition is made in the charge, the accused person shall be allowed to recall and cross-

o examine any witness who gave evidence, if he so desires. 0

Held: This is a right of which an accused person must be informed if not legally represented; but if he has Counsel, there is no need to inform his Counsel of the right.

Appeal by convicted person: No. 3652. Appellant in person.

Adedipe, Crown Counsel, for the Crown.

The following judgment was delivered:

Verity; C.]. This is an appeal of a person convicted in the Supreme Court on two charges, one of breaking into a building and stealing a tyre therein, and the second of stealing a number of motor car tyres. The appellant who appeared in person raised questions as to the credibility of certain witnesses upon whose evidence the learned Judge had convicted. The learned Judge saw and heard those witnesses and in his judgment he expressed himself as satisfied that they were witnesses of truth and that he disbelieved the evidence of the appellant. With his conclusion with regard to the credibility of those witnesses we do not feel ourselves in a position to interfere, and we think moreover that he was right in coming to those conclusions.

The Court itself, however, raised two points upon which we sought the assistance of Counsel for the Crown. The first' related to a matter of procedure. The information as originally laid included in the first count two accused persons 0 only and did not include therein the name of the present appellant. At the conclusion of the case for the prosecution, application was made to add the name of the present appellant. to the first count in the information. This application was granted without objection by Counsel for the present appellant and his plea was taken thereto. The question then arises as to whether or not it was necessary for the warned trial Judge to invite Counsel to recall or cross-examine any of the witnesses whose testimony had already been '1eard. Section 165 of the Criminal Procedure Ordinance, Chapter 43 provides that in such a case the accused shall be allowed to recall or re-examine any witnesses who may have been examined and cross-examine such witness with reference to the alteration in the charge. [pg 22]

In the present case the accused who now appeals· was represented by Counsel at the trial. Now it appears quite clear from other provisions of the Criminal Procedure Ordinance in regard to the cross-examination' of witnesses at a trial, that where an accused person is not represented by Counsel,' the Court shall inform him of his right to cross-examine. It appears to us a legitimate inference from such provisions that where an accused person is represented by Counsel, there is no need for the Court to inform Counsel of the rights of the accused person.

Under section 165, it is clearly laid down that where an alteration or an addition has been made in the charge the accused person must be allowed to recall and cross-examine any witness who has already given evidence, if he so desires. That is a right which cannot be taken away from him, and of which he must be informed if he is not legally represented. But it must be assumed that Counsel is aware of the rights of the person whom he represents, and that if he so desired he could make application to recall and cross-examine any witness whom he thought fit. The fact that he has not done so does not in our view affect the propriety of the conviction, for there can be no doubt that had he made such an application, it would have been both recorded and allowed.

The second point which the Court put to Counsel for the Crown was as to whether there was a sufficient finding of fact on the part of the learned trial Judge in the course of his judgment to justify a conviction of the appellant upon the second count in the information which charged him with stealing a number' of tyres. Having considered the argument put forward by Crown Counsel, the evidence which was before the learned trial Judge, more particularly the evidence of Gamba who had pleaded guilty to two counts of indictment and been sentenced, and having considered also the terms of the judgment in which the Judge makes it clear that he accepts the evidence of Gamba with regard to the complicity of the appellant in the offences with which they were jointly charged and that he rejects the evidence of the appellant in regard not only to the breaking and entering and the stealing of one tyre, but also to the stealing of other tyres on other occasions, we are satisfied that the conviction on the second count was also justified. In those circumstances therefore the appeal is dismissed.