R. v. Muhammad Aman Ullah Sidhu and Another

CACC000276/1995

IN THE COURT OF APPEAL

1995, No. 276
(Criminal)

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Coram: Power, V.-P., Bokhary and Mortimer, JJ.A. in Court

Date of Hearing: 19 March 1996

Date of Judgment: 19 March 1996

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J U D G M E N T

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Bokhary, J.A.:

1. These two applicants are men in their early 30's. Early last year, they were tried before Deputy Judge Candy in the District Court on a charge sheet containing three charges.

2. Both men faced the 1st charge, which was of robbery. The 2nd charge, which was of attempted theft, and the 3rd charge, which was of breach of condition of stay, were against the 1st applicant alone. Both men pleaded not guilty to the robbery. The 1st accused also pleaded not guilty to the attempted theft. He pleaded guilty however to the breach of condition of stay.

3. So the case proceeded to trial on the robbery charge against both men and the attempted theft charge against the 1st applicant alone.

4. On April 7 last year, the judge found both men guilty of the robbery and the 1st accused guilty of the attempted theft too.

5. The 1st applicant now seeks leave to appeal against his convictions of robbery and attempted theft, while the 2nd applicant seeks leave to appeal against his conviction of robbery.

6. As far as the robbery is concerned, it was alleged to have occurred on January 17 last year at a hostel in which the man named as the victim in the robbery charge lived. He was called as the 1st prosecution witness; and we will refer to him as "PW1".

7. The attempted theft was alleged to have occurred on the following day in the street. The man named as the victim in the attempted theft charge was called as the 2nd prosecution witness; and we will refer to him as "PW2".

8. PW1 and PW2 are friends.

9. It was PW1's evidence that he was robbed by a number of men including the two applicants. And it was PW2's evidence that the 1st applicant attempted to steal from him.

10. The possibility of mistake, whether as to identity or anything else, was not the defence of either applicant. According to the applicants' evidence, they were in the hostel at the time of the alleged robbery but what went on was not a robbery by either of them but a dispute over money which erupted into a fight. And, as far as the alleged attempted theft is concerned, it was the 1st applicant's evidence that there was an encounter between him and PW2 in the street at the time of that alleged offence but that he did not make any attempt to steal anything.

11. Before us, a number of points were taken by the applicants. We have read the written submissions which they put in during this morning's hearing; and we have heard what they developed by way of oral submissions during this morning's hearing.

12. One of the things which they said was that if the landlord of the hostel were to be called as a witness even now and were to swear an oath that they were guilty, then they would accept that. That is an attempt to invoke a form of procedure which features to some extent in certain other jurisdictions. But we can only treat it as an application to call further evidence. And we find no proper basis on which that application can be allowed. So that application is dismissed.

13. What is left are all the other points raised by the applicants in writing and orally. We have considered all of these. We did not propose to set them out at any length. A number of things were said. They include these. But if there was any robbery, then they were the victims rather than the perpetrators of it. They were not listened to in the court below. The interpretation in the court below was incomplete. They are innocent men. And they have been wrongly convicted on the false testimony of guilty ones.

14. This is an appellate proceeding not a trial. The trial is over. We are looking at the result reached at that trial as appeal judges.

15. The issues below form a matter, as the judge rightly said, of the credibility of all the witnesses including the applicants. Provided that the trial judge directed himself properly, there is little room for us to interfere. And in the present circumstances, we are satisfied that provided he directed himself properly we cannot interfere. The judge, unlike us, had the advantage of seeing and hearing all the witnesses giving evidence. Did the judge direct himself properly?

16. In answering that question, we base ourselves not only on what the applicants have put forward in writing and orally, but also on our own examination of the record: since they are unrepresented and should have the benefit of anything which we can find if there is something there of help to them which they have not seen.

17. After all of that, we have come to the conclusion that the judge cannot be said to have misdirected himself. He approached the case acting on the correct principles; and there is no basis on which we, not having seen or heard the witnesses giving evidence, can, in the circumstances of this case, overturn the view of the judge who saw and heard all the witnesses.

18. That being so, these applications are dismissed.

Representation:

Mr John Reading (of the Attorney General's Chambers) for the respondent

Muhammad Aman Ullah Sidhu, 1st applicant in person

Asrar Ahmad Ansari, 2nd applicant in person