Commissioner Of Police V. J. S. Tsalisis (1943)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Practice–Particulars of charge—Defence Regulations 1939-1943 (Gold Coast), regulation 41—selling goods above controlled price—Controlled price not stated in charge or proved.
Summary Tria1=-Variation between charge and evidence—not material—Criminal Procedure Code (Cap, 10) (Gold Coast), section 162.
Evidence—Controlled Prices—Judicial Notice—” Ordinance ” etc.—Interpretation Ordinance (Cap. 1) (Gold Coast), section 3 (C) (28)—Defence Regulations 1939-1943 (Gold Coast) regulation 41.
When a trial Cotirt is at liberty >to accept portion of a prosecution, witness’s evidence and reject the rest—Accomplice witness avoiding self-incrimination.
Inadmissible evidence—Absence of direction by trial Court (Magistrate’s Court)—Statement admissible against one co-Accused but not against other—No note of inadmissibility of statement.
Evidence of accomplice—No note of this fact by Magistrate—Fact obvious.
Facts
On a charge under the Defence Regulations of selling goods above the controlled price, it is not necessary to state the controlled price in the-charge or lead evidence of what it is.
A charge of selling 24 bottles of gin for £18 6s Od and 24 bottles of whisky for £26 8s .Od is not supported by evidence which only shims that 24 bottles of gin and 24 bottles of whisky were sold for £44 14s Od in all, but this is a variance which is not material and therefore not enough to invalidate a summary conviction.
Held
The proposition that a trial Court is not at liberty to accept one ‘portion of a prosecution witness’s evidence and to reject another portion is not of .universal application; while such a course may not be taken arbitrarily, it is permissible where the witness is an accomplice and may perjure himself in order not to incriminate himself.
Receiving evidence of a statement admissible against the first accused in a joint trial but not admissible against the second accused, the trial Magistrate made no note to show he realised the evidence was admissible
against the second accused, but there was other evidence sufficient to justify a conviction, and the Appeal Court, not considering it certain that the Magistrate used the inadmissible evidence in coming to his conclusion that the second accused was guilty, did not disturb the conviction.
The record did not show that the Magistrate warned himself that one of the prosecution witnesses was an accomplice, etc., but the fact was obvious and the Appeal Court would not assume that the Magistrate did not realize it. There being corroborative evidence, the conviction was allowed to stand.
The Appeal against sentence is therefore dismissed.
