Fiji Law Reports

These are appeals against convictions entered in the SupCourting at Suva on thon the 9th October 1974. All three appellants were convicted on two chargeharges of false pretences committed on the and 31st December 1973 res3 respectively. The trial took place before a Judge sitting with assessors. At the commencement of the trial there were three assessors; but owing to the sudden illness of one of them during the hearing, the trial continued with two assessors only. Both assessors expressed the opinion that all three appellants were guilty of the offences with which they were charged. The learned trial Judge accepted this opinion and convicted each appellant on two charges accordingly. The sentences passed were on the 1st appellant 18 months' imprisonment on each charge; on the 2nd appellant 2 years' imprisonment on each charge; on the 3rd appellant 2 years' 9 months imprisonment on each charge. In all cases the sentences were made concurrent. Each appellant appeals both against his conviction and against the sentence passed upon him.

Some confusion may arise from the fact that the order in which the appellants are named in these proceedings is not the same order as that, of the accused in the Supreme Court. The first appellant was the fourth accused the second appellant the third accused, the third appellant the second accused, and they are so referred to in the record. Consequently, it is considered desirable to refer to the appellants by name in this judgment instead of as first (second or third) appellant.

The facts relied on by the prosecution may be shortly stated. On the 29th December 1973 Abdul Hamid called at Desbro, Steel Mills, Raiwaqa driving a motor truck On some date previously, Abdul Hamid and Hassan Mohammed had taken delivery from Desbro Steel Mills in track No. AH149 of six tons of mild steel for which they paid cash. On the 29th December Abdul Hamid spoke to Shaheed Khan, an employee of Desbro Steel Mills who was in charge of delivery sales and purchases. Abdul Hamid asked him if the Company had some steel for Carpenters (Fiji) Limited at Lautoka. Shaheed Khan said, "Yes". Eight tons of mild steel, rods twenty feet in length, were then loaded on to the truck after Shaheed Khan had checked with the manager of the Company that this steel had been ordered by Carpenters (Fiji) Limited. Abdul Hamid then signed the delivery note acknowledging receipt of the steel. On 31st December, Abdul Hamid returned to Desbro Steel Mills and asked if there was any more steel for Carpenters at Lautoka. Shaheed Khan told him to return in the afternoon- Abdul Hamid did so and another eight tons of mild steel was loaded on the truck. The truck number was L717. About a week later Shaheed Khan ascertained that the steel in question did not reach Carpenters Limited at Lautoka. The matter was reported to the Police. On the 6th February the Police went to a house in Korovou, Tavua in which appellants Hassan Mohammed and Ibrahim Khan lived. The Police found some ten tons of steel buried in the ground in the garage some six or seven yards from the house. This steel was identified by prosecution witnesses as some of that which had been uplifted from Desbro Steel Mills by Abdul Hamid.

The learned trial Judge expressed himself as satisfied on the evidence that on both 29th and 31st December Abdul Hamid falsely represented that he was there for the purpose of collecting steel for W. R. Carpenters (Fiji) Limited at Lautoka with intent to defraud. He found also that the steel rods unearthed from under the garage were the same steel rods which had been delivered to Abdul Hamid by Desbro Steel Mills.

The learned trial Judge further found that Hassan Mohammed and Ibrahim Khan knew beforehand that Abdul Hamid would obtain the steel on the dates in question from Desbro Steel Mills by means of false pretences, "and in fact procured him to do so." He further found that the steel was delivered at Korovou, Tavua and part of it concealed by the three appellants in the garage where it was eventually found by the Police.

A fourth person Fateh Mohammed, brother of Ibrahim Khan and father of Hassan Mohammed, was charged together with the three appellants; but the assessors both expressed the opinion that he was not guilty. The learned trial Judge accepted this opinion and acquitted Fateh Mohammed.

The appeals before this Court were heard together. Some seventeen grounds were submitted on behalf of Hassan Mohammed, fifteen on behalf of Abdul Hamid and seventeen on behalf of Ibrahim Khan. They overlap to a considerable extent. Some of them do not require detailed consideration, and will be referred to briefly later in this judgment. Some are common to all three appellants. This Court will deal firstly with those, and then with the grounds which apply to two appellants or to one only. The grounds of appeal common to all which require full consideration by the Court may be shortly summarised as under:

(1) That the learned trial Judge erred in ruling at the conclusion of the case for the prosecution that there was a case to answer, and thereby caused a substantial miscarriage of justice;

(2) That the word "obtains" in Section 342 (a) of the Penal Code means obtain theerty in then the article concerned and not merely possession of it, and that the learned trudge erred in law in directing himself otherwise;

(3

(3) That the learned trial Judge erred in law in granting leave to the prosecution to adduce further evidence after the close of the case for the defence.

The grounds of appeal put forward on behalf of Hassan Mohammed and Ibrahim Khan may be set out as follows:

(4) That there is no evidence or insufficient evidence upon which could be based a finding that Hassan Mohammed and Ibrahim. Khan knew beforehand that Abdul Hamid would obtain the steel by means of false pretences "and in fact procured him to do so;"

(5) That the learned trial Judge erred in law in misdirecting himself and the assessors on the question of alibi raised by the defence and in making comments adverse to the appellant relating to the same;

(6) That the learned trial Judge erred in law in not permitting the defence to call Mr K. N. Govind as a defence witness after the completion of rebuttal evidence adduced by the Crown.

One ground of appeal concerns Hassan Mohammed only. This is to the following effect:

(7) That the learned trial Judge erred, after holding a trial within a trial in not ruling as to the admissibility of alleged statements made to the Police by this appellant.

One ground of appeal concerns Abdul Hamid only:

(8) That the learned trial Judge erred in law in accepting the evidence of the prosecution witness Shaheed Khan in view of his former inconsistent statements and his inconsistent evidence given on oath at the Preliminary Inquiry and at the trial during evidence-in-chief.

With regard to the first ground of the appeal we are unable to say that the learned trial Judge was wrong in ruling that there was a case to answer.

As far as Abdul Hamid was concerned there was direct evidence that he had called at Desbro Steel Mills and asked for steel rods ordered by Carpenters Limited; these were given to him though he had no authority from that Company; and the rods also were subsequently found hidden underground elsewhere, and never reached Carpenters Limited. His conduct undoubtedly amounted to a false representation that he had the authority of Carpenters Limited to take delivery of the steel they had ordered, and was so accepted by Shaheed Khan. This evidence in our view was sufficient to set up a case to answer.

With regard to the other two appellants there was evidence that the stolen goods had been found buried in their garage in such a way that it could hardly be said that they were unaware of the hiding of the steel rods in that place; and the only inference which could reasonably be drawn from that fact is that they wore concerned in some way with the offence that had been committed. There is also the evidence that Hassan Mohammed and Abdul Hamid had come together to Desbro Mills some time previously and had purchased steel rods from the company from Shaheed Khan. Whether the appellants could properly c been convicted for false pretences or theft, or receiving stolen goods, was immaterial at that stage in the proceedings. There was evidence upon which a reasonable tribunal might convict of some offence arising out of the facts held to be proved. We apply the test out in the Practice Note in (1962) 1 All E.R. 448 (Queen's Bench Din) per Lorr Lord Parker C.J>

"If, however, a submission is made that there is no cano case to answer, the decision should depend not so much on whether the acating tribunal (if compelled to do so) would at that stagestage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

Following this principle we hold that the learned trial Judge was correct in ruling that there was a case to answer.

In support of his argument on the second ground of appeal Counsel relies heavily on the judgment of the Court of Criminal Appeal in R. v. Ball<160;[1951] 2 1] 2 K.B. 109 at p. 111 where Lord Goddard CA. said-

In the Australian case of R.&#160. Arnold&#160 (1883) 4 N.S.WL) 347 it47 it was held that what was intended by a similarly worded statute was that if the accused person had obtained bodily possession of the article concerned then he did obtain "the prop in it in the sense meant bant by the statute. The question of the correct principle to be applied in the interpretation of Section 342 of the Penal Code is one oe difficulty. The iThe interpretation adopted in Australia and New Zealand seems to us more consistent with the intention of the legislation than that laid down160;Ball's case.

B are requireduired to d to take into account the provisions of Section 3 of the Penal Code, expressions used in the Code shall be presumed, as far as in consistenh their context, to be used with the meaning attaching to them in the English Criminal Law. Law. No argument was adduced to us on the meaning of the phrase "English Criminal Law" in Section 3. But we incline to the view that the phrase must include principles of the English Criminal Law as set out in decisions of the English Courts of the highest authority. R. v. Ball wjuda ent of the Court of C of Criminal Appeal, and though it has been criticised in some quarters it has not been judicially disishedverruled. As is said in SmithHogan on Criminal Lnal Law ae page 413:<413:

"Although there is nothing in the wording of the sub-section to indicate that "obtains" is restricted to an obtaining of the property in any chattel, money or valusecurity, and there is perh perhaps no very good reason why it should be so restricted, that it is so is decisively settled."

With some reluctance we therefore conclude that we are bound to follow that judgment. In the present case it cannot be said that Abdul Hamid acquired ownership of the steel rods concerned. It was not even intended by Shaheed Khan to pass the property in them to Abdul. Hamid; the rods were delivered to him by Shaheed Khan on the mistaken assumption that Abdul. Hamid was acting as agent for W. R. Carpenter Limited. If then Abdul Hamid did not obtain the property in the goods, then-if the principle of Ball is to be o be applied-nnot nnot be convicted of false pretences. But it is equally clear that the evidence in thet below establishes beyond reasonable doubt his guilt of the offence of larceny; in this cais case, what is often referred to as "larceny by a trick". The trick in this case was that of inducing Shaheed Khan to believe that he had authority to take delivery on behalf of W. R. Carpenter Limited, and thereby obtaining possession of the steel rods which he thereupon converted to his own use.

It is provided in Section 176 of the Criminal Procedure Code that-

"When a pers c is charged with obtaining anything capable of being stolen by false pretences with intendefraud, and it is proved tved that he stole the thing, he may be convicted of the offence of stealing although he was not charged with it."

Counsel for Abdul Hamid objects that Section 176 gives power only to the Supreme Court to substitute a conviction for theft on a charge of false pretences. But by section 24 (2) of the Court of Appeal Ordinance this Court my substitute a verdict of guilty for some other offence than that found in the Supreme Court if it appears to this Court that the trial Judge must have been satisfied of facts which proved the appellant guilty of that other offence. It is perfectly clear from his judgment that the learned trial Judge was so satisfied. In our opinion therefore the correct offence of which Abdul Hamid should-subject to the determination of the other grounds of appeal-have been convicted was larceny under Sections 291 and 194 of the Penal Code an of false pretences.

The third ground of appealerns the permission given to the prosecution by the learned trial Judge to call evidence ince in rebuttal of the evidence for the defsetting up an alibi, of whif which the prosecution had had no notice. An alibi was set up by Ibrahim Khan who claimed to have been in Suva throughout the whole period from the 24th December to the 10th February. The evidence which the prosecution sought to call was that on the 8th February he had been at Tavua, and there had delivered a letter to Police Constable Josefa with instructions to hand it to the officer-in-charge. The date 8th February was several weeks after the date of the removal of the steel from the Desbro Mills; and the prosecution could not in our opinion have expected a denial by Ibrahim Khan that he was in Tavua on that date. The authorities, several of which are cited in the ruling of the learned trial Judge on Counsel's application for leave to call evidence in rebuttal, made it clear that the matter is one for the Judge's discretion; but leave should be granted only when something has arisen and coud could not been forn foreseen by the prosecution. In exercising his discretion in favour of granting the application the learned trial Judge says:-

"I am satisfied that there was no way which theecution could have known orwn or anticipated that an alibi of such comprehensive nature as that given by the 1st and 2nd accused would he put forward. This appears to me to be a fair and reasonable conclusion as there would seem to be good reasons why the police should suppose during the course of their investigation that the 1st, 2nd and 4th accused were at all material times based residentially and occupationally in Tavua."

In our opinion this finding was fully justified, and we hold therefore that there is no error in law on the part of the learned trial Judge. This ground of appeal accordingly fails.

The fourth ground of appeal is to the effect that the following finding of the learned trial Judge cannot be supported having regard to the evidence:

"In the whole of the circumstances of this case I am satisfied that the 2nd and 4th accused knew beforehand that the 3rd accused would obtain steel on the aforesaid dates from Desbro Steel Rolling Mills Limited at Walu Bay by means of false pretences and in fact procured him to do so. The steel was delivered at Korovou, Tavua part of which was concealed by the three accused in the garage where it was eventually found by the police on the 6th February 1974. I am therefore in full agreement with the gentlemen assessors whose opinions I respectfully adopt."

In Counsel's submission, to justify conviction for false pretences there must be cogent evidence proving that these two appellants were parties to the actual making of the false pretence; and there was no such evidence. No sinister conclusion, he urges, can be drawn from the evidence that Hassan Mohammed had on a previous occasion accompanied Abdul Hamid to Desbro Steel Mills to purchase steel. The subsequent finding of the stolen steel in their garage on 6th February does not, in Counsel's contention, prove that previously to the 29th December there had been a conspiracy to steel the goods in question by the trick which was in fact employed. The incriminating actions of these two appellants, referred to at length in the summing up, could not and did not in Counsel's submission amount to proof of their complicity in the actual false pretence employed on the 29th December.

We have already given our opinion that Abdul Hamid could properly have been convicted of larceny. He had not obtained the property in the goods and so could not be convicted of obtaining them by false pretences. As the guilt of Ibrahim Elan and Hassan Mohammed depends upon their having counselled or procured Abdul Hamid to obtain the steel, it follows that a conviction of obtaining the goods by false pretences would, in their cases also, be inappropriate. As a result of that, section 23 of the Penal Code iectly relevant. It reads:

"When a person counsels another, to commit an offence, and an offence in actually comd aftch counsel by they the person to whom it is given, it is immaterial whether the offence acte actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel."

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

If, therefore, Abdul Hamid is convicted of larceny there is no impediment provided that the evidence is sufficient and the course is otherwise justified, to the conviction of Ibrahim Khan and Hassan Mohammed also on similar counts. It is then necessary to examine the evidence against these two appellants to ascertain if it supports the finding of the learned trial Judge in the passage last quoted from his judgment.

The vital word in that passage is "beforehand." Pre-arrangement between Abdul Hamid and the other two must be proved if they are to be held guilty of anything more than receiving stolen goods. Mere knowledge of Abdul Hamid's intention would not constitute them counsellors; but knowledge, coupled with the arrangement that the goods would be transported to and concealed upon the premises jointly occupied by them, would be enough. If, without such pre-arrangement, they merely assisted Abdul Hamid after the event, they could be receivers, not more. If there was pre-arrangement, that could only be in the light of knowledge by them of Abdul Hamid's intention but whether Ibrahim Khan and Hassan Mohammed were privy to the exact mode of the criminal action contemplated, is, by section 231 of the Penal Code, not material.

The really damaging evidence so far as these two appellants ancerned was that of the finding of the ten tons of the stolen steel buried in the garage onge on their property a little over a month after the theft. Some of the steel from each load must have been there. The actual ownership of the house and all buildings was claimed by lbrahim Khan, but Hassan Mohammed was his nephew and both lived there. They were associated in a tracking business, managed by Ibrahim Khan though there was no evidence that the truck used by Abdul Hamid was one of theirs. Hassan Mohammed was a track driver. Abdul Hamid was connected by marriage to Ibrahim Khan. In his summing up the learned Judge emphasized the fact that the garage was only six to ten yards from the house, that it would take more than one man to unload and bury so much steel, and a substantial period of time to bury it and camouflage the surface.

In our view, simple though these facts are, they create a very strong inference that the steel was put where it was found by pre-arrangement. It could not possibly have been put there without the knowledge of the people in the house. Abdul Hamid would not have "obtained" the steel without having somewhere to put it. The possibility that he had a place arranged elsewhere, that something went wrong and he suddenly prevailed upon Ibrahim Khan and Hassan Mohammed to take it, is in our opinion too remote, in the absence of supporting evidence, for acceptance.

The assessors' view that Ibrahim Khan and Hassan Mohammed were both involved would no doubt rest partly upon inferences to be drawn from their family and business relationships, from their subsequent conduct and partly upon their assessment of the defence. Ibrahim Khan's alibi that he was in Suva throughout the relevant period was of course intended to show that whatever happened was without his knowledge. But it is not conceivable that Hassan Mohammed would make such an arrangement in relation to his uncle's property and garage without his uncle's approval and during his absence. It was not a matter which could be kept concealed. On the other hand it seems most unlikely that Ibrahim Elan would enter into a criminal transaction which must come to his nephew's knowledge without his nephew's complicity.

Reference has been made to the subsequent conduct of these two appellants.

They both denied that they had any knowledge of the steel. In Court Hassam Mohammed gave evidence that immediately after he had been interviewed by Detective Corporal Subramani on 6th February 1974 he drove through to Suva in the truck. AH149, arriving 7 am. when he handed over the truck to Ibrahim Khan He told Ibrahim Khan that the Police had taken away the steel which was "at home." He went on to say in his evidence:-

"I was referring to the steel he had bought, about five to six months before-the same steel which was kept near the unfinished house."

Ibrahim Khan in the course of his evidence says that his steel was kept to the left of the house between the unfinished house and the garage. "My steel was stored properly; it was not bound up but stacked up properly." It is to be noted that the stolen steel rods were properly bound. Moreover when Detective Constable Ramaiya went to the house occupied by Ibrahim Khan and Hassan Mohammed, on 29th January 1974 he made a thorough search of the premises and found no steel at all. If the steel had been stacked between the unfinished house and the garage as stated by Ibrahim, Khan it could not have been overlooked by the police constable in his search; and the only conclusion that can be drawn is that there was no steel above ground on the premises, and that fact was well known to Hassan Mohammed. So when on the night of the 6th February, after the steel in the garage had been dug up, Hassan Mohammed journeyed to Suva to see Ibrahim Khan in order to discuss steel, it is patently obvious that the only steel which could have been the subject of the discussion was that so recently unearthed. Before he set out he had been clearly told by the police that they were inquiring into steel taken from Desbro Steel Rolling Mills and hidden on the premises, Then there is the evidence of Ibrahim Khan that he told Hassan Mohammed to go to Ba, see a solicitor and inform him that the police had taken away the steel from his house. Hassan Mohammed deposed that on these instructions he had seen Mr Govind, solicitor, and notified him to that effect. Mr Govind then gave Hassan Mohammed a letter to give to the Police. This letter was produced in Court and reads as follows:

"GOVIND & CO.,

BARRISTERS & SOLICITORS

8th February 1974

TO WHOM IT MAY CONCERN

re: Hassan Mohammed (f/n Fateh Mohammed), Ibrahim Khan and Fateh Mohammed

The abovenamed are my clients. I have spoken to Mr Mam Raj that these three will give their statements in his presence on Saturday the 9th and therefore in the meantime no any other Police Constable or Officers shall interview or take any statements from them.

Yours faithfully, K. N. Govind"

The terms of this letter are totally inconsistent with the evidence of Ibrahim Khan and Hassan Mohammed as to the reaction of these two appellants to the discovery of the hidden steel by the police. Further, the prosecution evidence was that it was Ibrahim Khan and not Hassan Mohammed who delivered the letter to the police. This alibi which these two appellants sought to set up at the trial for Ibrahim Khan until the 10th or 11th February therefore contains some demonstrably false elements and at least one major element (the delivery of the letter) which depended upon the view the assessors took of the prosecution evidence. This brings the facts of the case in this respect not far from those in Mawaz v. R. (19i>(1967) 1 All E.R.h80 where at page 83 their Lordships said-

There was weight in the circumstantial evidence which called for an explanation. The concerted attempt to give a false explanation by way of awas evidence of guilt to heto he taken into consideration with the other evidence given in the case. It is an additional factor to be taken into consideration with all other relevant evidence. What is found against the appellants is that the statements were concocted for the purpose of escaping from the consequences of their crime and, if false, are admissible to show guilt."

Taking all these factors into consideration, we are satisfied that the evidence amply supports the finding of the assessors and the learned trial Judge as to the complicity of these two appellants in the crime which was committed. It is clear that in so finding they rejected the defence of both. Consequently we find that the conviction of Hassan Mohammed and Ibrahim Khan for false pretences cannot stand; but, unless on any other ground this Court decides that convictions against them cannot be upheld, we are satisfied, applying the provisions of section 23 of the Penal Code, that each of them can properly be convicted of larceny.

The fifth ground of appeal is based on what Counsel contendmisdirection with regard tord to the defence of alibi. It is true that the learned trial Judge drew the attention of the assessors to discrepancies between the evidence of appellant Hassan Mohammed and that of the police, and invited them to consider:-

"If you accept the prosecution evidence as being accurate and truthful, then it would be open to you to hold that the 4th accused was telling a deliberate lie concerning his alleged delivery of the letter at the Tavua Police Station. You may therefore ask yourselves, if the 4th accused is capable of telling lies on oath regarding this aspect of his evidence, is it not likely that he might have told lies in respect of other parts of his evidence."

In Counsel's submission this comment by the trial Judge is a misdirection, and definitely prejudicial to this appellant. Counsel relied upon the New Zealand case of the Queen har (1969(1969) N.Z.L.R. 763 where it was held that when lies or evasions of the accused constitute an important elementhe chain of proof put forward by the Crown a clear direction from the trial Judge to the jthe jury is necessary. In the present case however the learned Judge referred to the telling of a lie, not so much as an important element in the chain of proof of guilt as a possible guide to general credibility. In the circumstances we do not think it was obligatory on the trial Judge to give a direction that the telling of a lie does not necessarily mean that an accused person is guilty, though he may well have done so. The direction in fact continued:-

"This is entirely a matter for you. In considering the evidence given by the 4th accused you must bear in mind that there is no obligation upon the 4th accused to prove anything-the onus being always on the prosecution to prove their case beyond reasonable doubt. Therefore before you may convict the 4th accused with regard to the 1st and 3rd counts you must be satisfied beyond reasonable doubt of his guilt having regard to the whole of the evidence. If you are not so satisfied or if you have any reasonable doubt about the matter, then you must express the opinion that he is not guilty."

In our opinion the learned trial Judge was quite entitled to draw the attention of the assessors to the conflict in evidence between that Of the Police and that of this appellant and to state the inference which might be drawn by them from that conflict ; but his direction to the assessors regarding the onus of proof was both clear and adequate, and we are unable to say that this summing up was in any way prejudicial to the appellant.

With regard to Ibrabim Khan, objection is taken to the passage in the summing up referring to this appellant and reading as follows:-

"At the same time you may think it most odd and perhaps unnatural that if the 2nd accused were then in possession of an explanation concerning his movements and whereabouts he should not avail himself of the opportunity which had presented itself. You may think therefore and this is a matter entirely for you that his failure to advance at an earlier stage his alibi is an important factor to be taken into account in assessing the weight you think it right to attribute to this part of his evidence."

In his argument Counsel relies to a great degree on a judgment of the Court of Criminal Appeal in A. J. Hoare;(1966) 566) 50 Cr. App. R. 166 quashing a conviction on the ground that the trial Judge in his summing up to the jury had made strong comments on the failure of the prisoner to disclose his de of alibi before the trialtrial and had not warned the jury that the prisoner was under no obligation to disclose his defence. But the present case is clearly distinguishable. In the same part of his summing up the trial Judge said that when this appellant was told of the inquiry about the missing steel and the allegation of his involvement in it the appellant "as he was perfectly entitled to do refused to answer any questions". Later the Judge went on to say:-

"However, in assessing his evidence you must bear in mind that there is no obligation on the 2nd accused to prove anything-the onus being always on the prosecution to prove their case beyond reasonable doubt."

The basis of the decision in Hoare (Hoare page In).he present chnt che asrs were expressly so told. In Ryan (1966(1966) 50 Cr. App. App. R. 144 the conviction was upheld on appeal on the grthat cal comment by the Judge on the accused's abstentstention fion from giving any explanation of his conduct was followed by a clear indication to the jury that the appellant was under no obligation to give such an explanation. Upon these authorities we are satisfied that the learned trial Judge's summing up on this particular matter is not open to criticism and this ground of appeal therefore fails.

The sixth ground relates to the refusal of the trial Judge to permit the defence to call Mr K. N. Govind. On this ground it must be pointed out that the evidence of Mr Govind formed no part of the defence case. It was the intention of the prosecution to call him as a witness with reference to the defence of alibi raised on behalf of the appellants; but at the relevant time Crown Counsel informed the Court that Mr Govind was ill and unable to appear. However, Counsel did not regard his evidence of sufficient importance to justify an application for adjournment. Counsel for the defence then applied to the Court for leave to call Mr Govind; but the learned trial Judge accepted the statement of the Crown Council that Mr Govind was too ill to attend and held that in any event his evidence could he of no assistance in determining the matters in issue. In the circumstances we can see no basis for the contention that the appellants were prejudiced by this ruling of the trial Judge and we find accordingly that there is no merit in this ground of appeal.

The seventh ground of appeal relates to a trial within a trial held to determine the admissibility in evidence in the trial proper of a statement said to have been made by appellant Hassan Mohammed to Detective Corporal Subramani. It is necessary. to state shortly what led up to the holding of this voir dire. When Corporal Subramani in his evidence in the trial proper referred to an interview with Hassan Mohammed, Counsel for the accused raised an objection to this evidence on the grounds, inter alia, that violence was used and that the whole interview was obtained by means of oppression. The learned trial Judge then ruled that he would hold a trial within a trial. In the course of that Hassan Mohammed gave evidence that he had been physically ill-treated by the police, and had been made dizzy by a very hard blow on his left ear. In reply to questions from Corporal Subramani he had said " Babuji whatever I have to say I have already given .... look Babuji my solicitor is Mr Sahu Khan. I have seen him and I have nothing to say. Before that I can't remember what I said. " He further deposed that Corporal Subramani had said to him " Babu don't worry. Look I will not charge you. Your father says the garage is yours " to which Hassan Mohammed said he replied "Babuji whatever statement I have to give I have already given. Whatever you want to write down you go ahead and write it down."

In his ruling at the conclusion of the voir dire the learned trial Judge said:

"It is perfectly clear from the evidence given by the fourth accused in this trial within a trial that he is claiming that he was ill-treated by and induced by the investigating officer, but that nevertheless he was not asked the questions related by the investigating officer and did not give any of the answers attributed to him- In other words, the whole of his statement, in question and answer form was not made by him and is a fabrication on the part of the investigating officer."

He then proceeded to rule that the only question was whether or not a statement was made by this appellant and that this was a matter for the assessors to decide. Presumably what the learned trial Judge meant was that this was an issue of fact to be determined by the Court with the assistance of the assessors. He also ruled that the question of whether the statement was voluntary or not did not arise. He gave no ruling on this point.

If the sole question for determination was whether or not the statement was actually made, we would agree that this would be a matter for the Court and not for the Judge alone. As said in R. > Robson&#160 56 Cr. App.50 <160;at 452:-