This was a case stated by a Resident Magistrate under section 367 of the Criminal Procedure Code, upon the application of the Attorney-General.
The first respondent was charged before a Resident Magistrate in Nairobi on three counts of forgery of jury summonses, and both respondents were charged on a fourth count with conspiracy to defeat the course of justice contrary to section 112(a) of the Penal Code. The Magistrate acquitted the respondents on all the charges; but, at the instance of the Attorney-General, stated a case for the determination by the Supreme Court of certain points of law arising in connection with the charge of conspiracy against both respondents.
The case is reported only on the question of admissibility in evidence of a wire recorder, wire recording, and transcripts.
In the Court below, the prosecution tendered a wire recorder by means of which a Magistrate had recorded the numbers of a panel of jurors chosen by ballot by him for a forthcoming Supreme Court trial. It was alleged by the prosecution that a list containing other numbers had, in pursuance of an unlawful conspiracy, been substituted by the respondents for the numbers selected by the Magistrate. The wire recorder, a recording made by it, and transcripts of that recording were tendered by the prosecution as evidence of the actual numbers which had been chosen, but the lower Court held that they were not admissible in evidence.
Held (14-2-56):
Inter alia that the Magistrate was not correct in deciding that the wire recorder and recording and transcription were not admissible in evidence.
Cases cited:
R. v. Santokh Singh, Cr. Case 2323/1954; R. v. Kapurchand, Cr. App. 187 of 1954; R. v. Jomo Kenyatta, Cr. App. 276 of 1953; Nicholas v. Penny, (1950) 2 K.B. 466; Emperor v. Ashootosh, I.L.R., 4 Cal. 483; Buxton v. Cumming, (1937) 71 S.J. 232.
Authorities cited:
Sarkar on Indian Evidence Act, 9th edn., pp. 24, 520–521; Monir on Indian Evidence Act, 3rd edn., p. 15; Phipson on Evidence, 9th edn., p. 493; Maxwell on Statutes, 10th edn., p. 79.
Counsel:
Conroy, Solicitor-General, with him D.P.R. O’Beirne, for the Crown. B. O’Donovan for the respondents.
Opinion of the Court:
Delivered by O’Connor, C.J. (with de Lestang and Edmonds, J.J. concurring).
