A.C. AND PRIVY COUNCIL. 197 KURUMA, SON OF KANIU... APPELLANT; J- C* ON APPEAL FROM THE COURT OF APPEAL FOR EASTERN AFRICA.

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1 A.C. AND PRIVY COUNCIL. 197 KURUMA, SON OF KANIU.... APPELLANT; J- C* AND 1954 THE QUEEN RESPONDENT. Dec. 8. ON APPEAL FROM THE COURT OF APPEAL FOR EASTERN AFRICA. East Africa {Kenya) Criminal Law Evidence Illegally obtained Test of admissibility Relevance to matters in issue Principle applicable in both civil and criminal cases Rule as to admissibility of confessions not qualified Search without warrant Illegal possession of ammunition Reference to Home Secretary Emergency Regulations, 1952 (Kenya), regs. 8A (1) (b), 29. Criminal Law. Privy Council Reference to Secretary of State. The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained. While that proposition may not have been stated in express terms in any English case, it is supported by Reg. v. Leatham (1861) 8 Cox C.C. 498, Lloyd v. Mostyn (1842) 10 M. & W. 478 and Calcraft v. Guest [1898] 1 Q.B. 759; and also by the Scottish cases of Rattray v. Rattray (1897) 25 Rettie 315, Lawrie v. Muir, 1950 S.C.(J.) 19 and Fairley v. Fishmongers of Tendon, 1951 S.C. (J.) 14. And in Olmstead v. United States (1928) 277 U.S. 438 the Supreme Court of the United States of America were of opinion that the common law did not reject relevant evidence on the ground that it had been obtained by illegal means. There is no difference in principle for this purpose between a civil and a criminal case, though in the latter the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused person: Noor Mohamed v. The King [1949] A.C. 182, 191-2; 65 T.L.R. 134; [1949] 1 All E.R. 365; Harris v. Director of Public Prosecutions [1952] A.C. 694, 707 ; [1952] 1 T.L.R ; [1952] 1 All E.R The Board were not qualifying in any degree the rule of law that a confession could only be admitted if it was voluntary, and one obtained by threats or promises held out by a person in authority was not to be admitted: Reg. v. Thompson [1893] 2 Q.B. 12; 9 T.L.R Where, therefore, on the trial of the appellant on a charge of being in unlawful possession of ammunition contrary to regulation 8A (1) (b) of the Emergency Regulations, 1952, of Kenya, evidence of their search of, and of the finding of the ammunition on, the appellant was given by two police officers who, not being of or above the rank of assistant inspector, had (it was alleged) by virtue 1955 Jan - H- * Present: LORD GODDARD C. J., LORD OAKSET, MR. L. M. D. DE SUVA. A.C

2 198 HOUSE OF LORDS [1955] i J. C. of regulation 29 of the Emergency Regulations no power to search the appellant, the evidence was properly admitted. As certain matters of fact in the case caused the Board some KUBUMA uneasiness, though they were not of a nature which according to e. the settled practice of the Board would entitle them to allow the THE QDEBN. appeal, the Board directed that they should be called to the attention of the Secretary of State and that the sentence of death which had been passed on the appellant should not be carried out until the Secretary of State had had an opportunity of considering the case. Judgment of the Court of Appeal for Eastern Africa affirmed. APPEAL (NO. 35 of 1954), in forma pauperis by special leave, from a judgment of the Court of Appeal for Eastern Africa (Nihill P., Worley V.-P. and Briggs J.A.) (March 27, 1954) dismissing an appeal from a conviction by an Emergency Court of Assize at Nairobi in Kenya (Law Ag.J., sitting with three assessors) (February 11, 1954) whereby the present appellant was convicted of being in unlawful possession of two rounds of ammunition contrary to regulation 8A (1) of the Emergency Eegulations, 1952, of Kenya, and sentenced to death. The ground on which leave had been obtained was that the evidence proving that the appellant was in possession of the ammunition had been illegally obtained and should not have been admitted. By regulation 29 of the Emergency Regulations (omitting words immaterial for the present case), which formed the ground on which the objection was taken : " any police officer of or above " the rank of assistant inspector with or without assistance and " using force if necessary... may stop and search... any " individual whether in a public place or not if he suspects that any evidence of the commission of an offence against this regulation is likely to be found on such..'. individual and " he may seize any evidence so found." The following facts are taken from the judgment of the Judicial Committee: On the day in question the appellant, hitherto a man of good character, had leave of absence from the European farmer by whom he was employed to visit his reserve. About 10 a.m. he started off on his bicycle along a main road on which he knew there was a road block where he would be liable to be stopped and searched. That was not the only way to his reserve; he could have gone by another route where he would not have encountered a road block. At the block he was stopped and police constable Ogwang examined his papers, which were in order, and then ran his hands over the outside of the appellant's clothing. According to his evidence, believing that he

3 A.C. AND PRIVY COUNCIL. 199 felt in the fob pocket of the appellant's shorts what seemed to J-. C. be a pocket knife and ammunition he blew his whistle to summon lg5g a superior officer, Rattan Singh. Neither of those police officers was of or above the rank of assistant inspector. They said that the prisoner was taken by them to an enclosure where he was THB QDEBN. made to take off his shorts, which were then shaken and a pocket knife and two rounds fell out. He was then taken to the police station and charged with the offence. The two rounds were marked and were subsequently produced in evidence Dec. 7, 8. Dudley Collard for the appellant. The appellant having been searched by a police constable (Ogwang) without a warrant, whereas under regulation 29 of the Emergency Regulations only a police officer of or above the rank of an assistant inspector had the power of search, the evidence obtained in the course of and by means of that illegal search was inadmissible. The case is put on two grounds: (1) on considerations of public policy the court ought to exclude evidence secured by that means; (2) if the rule of law is not an absolute one, at any rate the exclusion of such evidence is a matter of discretion, and the trial judge and the Court of Appeal ought here to have excluded it. There were striking discrepancies in the evidence. There is no positive authority one way or the other in this country on the admission of evidence obtained by illegal means; Elias v. Passmore 1 is not authority for its admission. The United States courts have evolved the absolute rule excluding evidence where it appears to have been obtained by some illegal action on the part of a government official. The clearest line of authorities is that of Scotland. It is submitted (1) that if evidence is obtained in the course of and by means of an illegality, then it ought to be excluded; (2) the court ought not to countenance or appear to be countenancing the commission of an illegal act [Ibrahim v. The King 2 was referred to]; (3) the court ought not to encourage in future similar illegalities; (4) evidence obtained in consequence of an illegal search may be untrustworthy; and (5) the victim of the illegality has no other effective redress. There are some qualifications to the main broad proposition; e.g., perhaps the rule ought to be limited to evidence of servants of the Crown; and possibly it is not always that the illegality affects the value of the testimony. i [1934] 2 K.B. 164; 50 T.L.E. 2 [1914] A.C. 599, 613-4; T.L.E. 383.

4 200 HOUSE OP LORDS [1955] J. C. With regard to the American cases, it is submitted that their 1955 Constitution on these matters is the same as the common law of England. It was said by Holmes J. in Olmstead v. United v States, 3 where their previous decisions are reviewed in a con- THU QUEBN. veniently concise way, that " the Government ought not to use " evidence obtained and only obtainable by a criminal act." See, also, Wolf v. Colorado. 4 ' It would be a heartening thing if this Board, sitting as the supreme tribunal of so many Englishspeaking peoples, were to hold that the rule adopted by the Supreme Court of the United States excluding evidence which appeared to have been obtained by some illegal action on the part of a government official is also part of the law of England. The Scottish cases suggest that there is a discretion in the court whether to admit this evidence or not, and they say that one of the tests is fairness to the accused; it does seem that neither the trial judge here nor the Court of Appeal ever considered that question: Rattray v. Rattray 5 ; Crook v. Duncan 6 ; Hodgson v. Macphorson 7 ; Adair v. M'Garry*; H.M. Advocate v. M'Guigan"; Robertson v. Watson 10 ; Lawrie v. Muir 11 ; M'Govern v. H.M. Advocate 12 ; Fairley v. Fishmongers of London ls and H.M. Advocate v. Turnbull. li There are also two South African cases which contain statements of general principle which require consideration in this case: Rex v. Maleleke 15 and Rex v. Mabuya. 16 Summarizing; where evidence is tendered by the prosecution in a criminal case which has been obtained directly by illegal means, it is not admissible. That is an absolute rule which, while there is no direct authority on it in England, has the support of two Scottish Law Lords and of the Supreme Court of the United States. The rule has the merit of simplicity and is relatively easy to apply, and it would have a salutary effect on any police force. It would be a degrading position for the court to be in, where evidence had been illegally obtained, to have to say : " You " have committed every crime in the calendar, and broken all the "Ten Commandments, but that does not concern us." As an intermediate position between the American and the Scottish views, it is suggested that there is the absolute rule unless the 3 (1928) 277 U.S. 438, S.C.(J.) 73, 87, 89. ' (1949) 338 U.S. 25, 28, 42.» 1950 S.C.(J.) (1897) 25 Eettie C.S S.C.(J.) 33, (1899) 1 Fraser (J.) S.C.(J.) 14. ' 1913 S.C.(J.) 68. " 1951 S.C.(J.) 96, 102.» 1933 S.C.(J.) 72. is S.A.L.B T.P.D. 491, S.C.(J.) 16. " s.a.l.e, 1927 C.P.D. 181.

5 A.C. AND PRIVY COUNCIL. 201 prosecution satisfy the court that there are circumstances excusing J. C. the irregularity and justifying the admission of the evidence. 19gg That would really meet all objections. If the Board think that there is a discretion, then it is submitted that the evidence ought to have been rejected. It was unfair to the appellant to admit TH E QOEBN; the evidence in all the circumstances, and especially where (a) the offence was a capital offence, (b) it was the only evidence implicating the appellant, and (c) it contained so many discrepancies. LORD GODDARD C.J. (after their Lordships had consulted). Their Lordships are clearly of opinion that the evidence in question was admissible, and do not therefore require any argument on that aspect of the case on behalf of the Crown. They would like to hear argument on the general aspect of the case as to whether the conviction should be allowed to stand on the general grounds. There are certain features in the case which do seem to call for comment; these are the differences of opinion among the witnesses and the fact that, though it is a capital case, witnesses of the search, who seem to be of great importance, were not called. Also the assessors attached great importance to the fact that a penknife said by the police to have been in the accused's possession had not been produced. D. A. Grant for the Crown. There are now really only two matters with which the Board are concerned, the discrepancies in the evidence and the failure to call certain evidence. Any review of the facts at this particular stage is closed completely by the evidence of constable Ogwang, which the trial judge said that he expressly believed. If the judge really believed Ogwang it would not make any difference whether the other witnesses were called or not, for applying the Board's rules in criminal matters it is impossible to see how this appeal can be allowed on the facts unless the Board are prepared to go so far as to say that no judge could have believed the evidence for the prosecution in this case. Dec. 8. LORD GODDARD C.J. Their Lordships are unable to advise Her Majesty to allow this appeal on the ground that evidence was wrongly admitted, and will give their reasons for that decision at a later date. On the facts, their Lordships feel that they are unable in accordance with the well-established practice of this Board to advise Her Majesty to allow the appeal, but they will make certain representations to the Secretary of State immediately and direct that the sentence shall not be

6 202 HOUSE OF LORDS [1955] J. C. carried out until he has had an opportunity of considering the 1955 case - KURUMA Jan. 11. The reasons of their Lordships for dismissing ' THE QUEEN, the appeal were delivered by LORD GODDARD who, after stating the facts set out above, continued: It is only right to say that the two rounds of ammunition differed from those which, the police officers then had as part of their equipment. The prisoner all along denied that he was carrying these rounds, and at the trial also denied that he had had a pocket knife on him. The police said they had returned the knife to him after he was in custody. No explanation was given of this remarkable action on their part, nor was the knife produced at the trial nor any reason given for its absence. It is also to be observed that three other persons, two police officers and one civilian, were said to have been present when the prisoner was searched, one of them indeed was said to have actually picked up the two rounds after they had fallen from the prisoner's shorts. Their Lordships think it was most unfortunate, considering the grave character of the offence charged, which carries a capital penalty, that these important witnesses were not called by the prosecution: it was not suggested that they were not available. The assessors were all in favour of an acquittal, but the magistrate overruled them and convicted the appellant. The first matter to which their Lordships desire to call attention is that the offence was alleged to have been committed at Chania Bridge in Thika in the Central Province. Thika was declared to be a special area by the Special Areas (No. 13) Order, By regulation 22B, which amended the Emergency Begulations, it is provided that it is the duty of any person in a special area to stop and submit to search by an authorized officer, which means by regulation 22A a police officer. If, therefore, Chania Bridge was in Thika, as the indictment alleged, it would appear that the action of the policeman was regular as permitted by law. No point seems to have been taken on this matter at the Assize Court. In the Court of Appeal it was taken, but that court said that as no evidence had been given on the subject beyond the evidence of the constable who said he was on duty at Chania road block near Thika it had not been proved that the offence was committed in a special area, and that it was too late for the Crown to rely upon it. They referred to a case, Saleh Mohamed v. Rex, 1 as disapproving a dictum of the Supreme i No. 196 of 1951.

7 A.C. AND PRIVY COUNCIL. 203 Court of Kenya that a magistrate was entitled to have judicial J- C. knowledge of the location of all the towns and villages in Kenya A report of that case was not before the Board and their Lord- ~ ' ships have no wish to criticize a decision which they have not. read, but with all respect to the Court of Appeal it appears to ^HE Q DEEN - them that this was perhaps an unduly narrow view to take. They think it may well be that when an indictment alleges that a particular offence was committed at a particular place and no challenge or issue is raised at the trial on that point the court may assume, or at least take judicial knowledge, that the place is situate where the indictment states it is or that the maxim omnia praesumuntur rite esse acta would apply. However, the Board will proceed to deal with the case on the footing that there was no power in any police officer under the rank of assistant inspector to search the appellant. As it was a direct result of the search that the ammunition was found on the prisoner it is submitted that the evidence was illegally obtained and therefore could not be given or that the court was bound to ignore it. The proposition must be put in this alternative manner because it appears that no objection was taken when the witnesses were giving their evidence, but a submission to this effect was made at the close of the case for the prosecution. In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships' opinion it is plainly right in principle. In Reg. v. Leatham, 2 an information for penalties under the Corrupt Practices Act, objection was taken to the production of a letter written by the defendant because its existence only became known by answers he had given to the commissioners who held the inquiry under the Act, which provided that answers before that tribunal should not be admissible in evidence against him. The Court of Queen's Bench held that though his answers could not be used against the defendant, yet if a clue was thereby given to other evidence, in that case the letter, which would prove the case it was admissible. Crompton J. said 3 : "It " matters not how you get it; if you steal it even, it would be "admissible." Lloyd v. Mostyn 4 - was an action on a bond. 2 (1861) 8 Cox C.C * (1842) 10 M. & W ' Ibid. 501.

8 204 HOUSE OF LORDS [1955] J. C. The person in whose possession it was objected to produce it on J955 the ground of privilege. The plaintiff's attorney, however, had got a copy of it and notice to produce the original being proved p the court admitted the copy as secondary evidence. To the same THE QUEEN, effect was Calcraft v. Guest. 6 There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. This was emphasized in the case before this Board of Noor Mohamed v. The King," and in the recent case in the House of Lords, Harris v. Director of Public Prosecutions. r If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out. It was this discretion that lay at the root of the ruling of Lord Guthrie in H.M. Advocate v. Turnbuil. 6 The other cases from Scotland to which their Lordships' attention was drawn, Rattray v. Rattray, 9 Lawrie v. Muir 10 and Fairley v. Fishmongers of London, 11 all support the view that if the evidence is relevant it is admissible and the court is not concerned with how it is obtained. No doubt their Lordships in the Court of Justiciary appear at least to some extent to consider the question from the point of view whether the alleged illegality in the obtaining of the evidence could properly be excused, and it is true that Horridge J. in Elias v. Passmore 12 used that expression. It is to be observed, however, that what the judge was there concerned with was an action of trespass, and he held that the trespass was excused. In their Lordships' opinion, when it is a question of the admission of evidence strictly it is not whether the method by which it was obtained is tortious but excusable but whether what has been obtained is relevant to the issue being tried. Their Lordships are not now concerned with whether an action for assault would lie against the police officers and express no opinion on that point. Certain decisions of the Supreme Court of the United States of America were also cited in argument. Their Lordships do not think it necessary to examine them in detail. Suffice it to say that there appears to be considerable difference of opinion among the judges both in the State and «[1898] 1 Q.B S.C.(J.) 96. [1919 ] A.C. 182, 191-2: 65» (1897) 25 Rettie 315. T.L.R. 134; [1949] 1 All E.R " 1950 S.C.(J.) 19.» [1952] A.C. 694, 707; [1952] " 1951 S.C.(J.) T.L.R. 1075; [1952] 1 All E.R. " [1934] 2 K.B. 164; 50 T.L.R

9 A.C. AND PRIVY COUNCIL. 205 Federal courts as to whether or not the rejection of evidence J- C. obtained by illegal means depends on certain articles in the jggg American Constitution. At any rate, in Olmstead v. United States,' 3 the majority of the Supreme Court were clearly of v opinion that the common law did not reject relevant evidence on THE QDBEN. that ground. It is right, however, that it should be stated that the rule with regard to the admission of confessions, whether it be regarded as an exception to the general rule or not, is a rule of law which their Lordships are not qualifying in any degree whatsoever. The rule is that a confession can only be admitted if it is voluntary, and therefore one obtained by threats or promises held out by a person in authority is not to be admitted. It is only necessary to refer to Reg. v. Thompson, 1 * where the law was fully reviewed by the Court for Crown Cases Reserved. As they announced at the conclusion of the arguments, their Lordships have no doubt that the evidence to which objection has been taken was properly admitted. The ground upon which leave to appeal was given therefore fails and they have humbly advised Her Majesty to dismiss the appeal. Their Lordships indicated when they announced their decision that there were matters of fact in the case which caused them some uneasiness though they did not consider they were of a nature which according to the settled practice of the Board would entitle them to tender other humble advice. But they thought it right to call them to the attention of the Secretary of State and accordingly they say no more about them. Solicitors: Gaster & Turner; Charles Russell & Co. " (1928) 277 U.S " [1893] 2 Q.B. 12; 9 T.L.B. 435.