Case No.:

AC-CP-107-1957

Court:

Major Court Confirmation

Issue No.:

1961

 

Principles

·  Evidence -—-Circumstantial evidence—Definition and use Circumstantial evidence is evidence of facts from which the existence of the required fact may be logically inferred.

Since, in addition to fallibility of assertion, circumstantial evidence contains fallibility of inference. its use must be guarded. The rule in 5udan Government v. Yocle Lowiya (1959) S.L.J.R. 69, applied.

Judgment

 

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. THOMAS  PARKER NICHOLL

AC-CP-107-1957

 

Advacate: Mubarek Zarroug  ……. for the accused

Judgment of Salah E. Hussan, Magistrate of the First Class, President of the Major Court convened at Khartoum. May 27, 1957:-Accused is an engineer working for Sir Alexander Gibb & Co. He is a graduate of Cambridge University and is an Associate Member of the Institute of Civil Engineers. Accused is a man of some experience in explosives which he gained by working in the British Navy during the war. Accused may be in love with Mrs. Griffiths, but, whatever the case may be, he has more than usual relationship with her. Both Mr. and Mrs. Griffiths were due to leave the Sudan finally on March i8, 19ç7 Accused, at least with the intention of delaying their departure in order to have more fun with Mrs. Griffiths, designed a bomb and dispatched it to Mr. Griffiths, addressed urgent and personal. Mr. Griffiths received the bomb on the morning of the t6th and when he ripped the envelope open it exploded and caused him slight in juries.

Reasons for finding

1. Did accused design and make the bomb in question?

Yes. Before enumerating the pieces of evidence upon which the court relied for its answer in the affirmative, we had better have a little talk about circumstantial evidence.

Circumstantial evidence is admissible evidence, especially in criminal cases, where the possibility of proving the matter charged by the direct and positive testimony of eye-witness is not available. In such cases the court is permitted to infer from the facts proved, other facts necessary to complete the element of guilt or establish innocence. The learned counsel for the defence contended that some jurists stated that circumstantial evidence should be admitted cautiously. This comment in our opinion does not decrease the value or weight of circumstantial evidence. It is only a warning to the court or jury to be careful not to drift into fallacious inferences. Archbold, Pleading Evidence and Practice in Criminal Cases, 471—472 (35th ed., 1962), comments that circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics.

Learned counsel for the defence further argued that the inference to be drawn circumstantially from a proved fact must lead to one conclusion or else it should be rejected. We entirely differ with this view and declare that if the inference leads to more than one conclusion it will be the duty of the court to pick out the conclusion it considers the most appropriate in the circumstances.

So much for circumstantial evidence.

The following were proved facts beyond reasonable doubt:

(a) Accused has some theoretical and practical experience in explosives (admitted by the accused).

(b) Accused has been taught to print and letter in capitals (admitted by accused).

(c) Accused admitted that he was contemplating making a letter-box. This is considered by the court as an involuntary admission by the accused that he knows some carpentry.

(d) Two Giant Manilla envelopes, the same type as the one in which the bomb was dispatched were found in the possession of the accused (not denied).

(e) Two different kinds of Sellotape found with the accused, identical to the two different types of Sellotape used in the bomb. (Evidence of Government Analyst).

(f) Two small pieces of wire were found with accused. One copper plated and the other iron wire. They were identical in width

and chemical composition to the wires used in the bomb. (Evidence of Government Analyst).

(g) A box of screws was found with accused. These screws were identical in chemical composition and appearance to the screws used in the bomb. (Government Analyst).

 (h) A lot of postcards were found with the accused identical with the postcards used in the bomb.

(i) Accused was found in possession of two kinds of shot-gun cartridges, i.e., Eley Kynock and Rottwell. The Government Analyst gave evidence to the effect that the explosive substance forming the bomb was composed of three different kinds. Two of which after chemical analysis were proved to be one Eley Kynock and the other Rottwell. Furthermore the remainder of the cartridge tube used in the bomb was an Eley Kynock.

(j) Typing paper found in accused’s possession was analysed and compared with the paper used in the bomb (Item 13 and Item 9 ). They were identical in appearance, watermark and thickness.

(k) There was a spring in the bomb which spring was established to be a Land Rover type 80 spring; the accused uses a type 80 Land Rover. The learned counsel for the defence produced two wit nesses: the Inspector of Explosives and the other an engineer from Sir Alexander Gibb & Co. Both these witnesses declared before the court that chemical analysis will definitely produce better results than their off-hand opinion. We have chemical analysis of every piece and so their evidence is rejected. Furthermore the defence took the above-mentioned items and argued them one by one, but he did this independently, and the main comment on each item was that it is a common type of thing available to everybody. He might seem successful that way, but these items have to be taken altogether at the same time. The whole constituents of the bomb with the exception of the wooden frame and the spring and tin—identical to them were found in the possession of accused. This taken into consideration with accused knowledge in explosives and accused’s knowledge in the art of printing capitals, and the wonderfully beautiful printed capitals on the envelope not forgetting the fact that the letter was posted in the Sudan Club letter-box, of which the accused is a resident. All in all these things, combined together, reproduce a violent presumption that accused designed and made this bomb in question.

2. What motive has driven accused to send this bomb to Mr. Griffiths?

It is clear from the evidence of the servant that the relationship between the accused and Mrs. Griffiths is more than mere friendship. The servant gave evidence as’ to the way in which she attires herself in absence of her husband and in presence of accused. In the photograph accused is seen on Christmas Eve kissing Mrs. GriffIths. The court admits that it is the usual English custom to kiss any lady on Christmas Eve, but looking to all the circumstances of the case, and the available evidence we heard, this kiss in particular corroborates the unusual relationship between accused and Mrs. Griffiths.

As Mr. and Mrs. Griffiths were leaving the Sudan finally, accused thought of one of two things:

1. to get rid of Mr. Griffiths forever and have Mrs. Griffiths for himself; or

.2 to delay their departure by hurting Mr. Griffiths grievously, in order to have more fun with Mrs. Griffiths.

The court accepted the latter view, because we have no evidence to prove that the bomb was lethal.

3. Did accused put this letter in the club’s letter-box ?

Yes. So long as it has been established that it was accused who made the bomb, it is also conclusively inferred that accused will never allow any person to come between, so that the secrecy of the whole affair is positively secured. Moreover we have evidence that accused came on Friday at 3 a.m., and he went up through the wooden staircase. Yesterday I the court visited the site and had a look at the position of the wooden staircase, the letter-box, room No.5 and the other two staircases. The Ghaffir was surely lying when he positively stated that accused was not carrying anything in his hands: it is impossible to see from the gate clearly even by day. Secondly, the staircase is very close to the letter-box or in other words the letter-box is near the base of this wooden staircase. This wooden staircase is the farthest staircase from accused’s room, and if it is really unusual and awkward. Why should an used go through the’ wooden staircase? The court inferred that that was the time when accused put the letter inside the letter

As already commented, accused’s intention was  at least to cause grievous hurt to Mr. Griffiths, in order to delay his departure and have more fun with Mrs. Griffiths Had it not been for the subconscious self-precaution originating within Mr. Griffiths at the time of opening the bomb. Serious injury would have definitely occurred, say. for instance, he could have lost his eyesight

To conclude. accused did his best to escape conviction hut his best was nothing but a maximum of failure The court does not forget to

praise the investigating team for the wonderful effort they did which reminds us of the stories of Sherlock I Holmes.

M.A.Abu Ranat C.J. June 21, 1957 : The most important issue this case is whether the proved facts are sufficient to connect the accused with the exploded bomb. It is admitted by the prosecution that he sought to prose the ease by circumstantial evidence. By circumstantial evidence is meant that other facts are proved, from which the existence of the given fact may be logically inferred. In comparing the two forms of evidence , i.e. direct and cricumstantial, it is held that the former is supperior since it contain at most only one source of error, fallibility of assertion. while the latter has in addition, fallibility of inference.

I propose to deal in this note with every point that has been decided by the court in their reasons for finding. The court said that the following facts were proved beyond reasonable doubt. but in my view nothing was proved against the accused.

(a) “ Accused has some theoretical and practical experience in explosives. The court said that accused admits this fact.”

The accused said (Record, page 38) ‘1 have had no specific training in my degree about explosives. but I have theoretical knowledge about explosives. No practical experience in the use of explosives. But as every one in the service in the Navy, I did undergo a period of training in hand grenades rifles and explosive substances.”

The evidence of Mr. Ward (D.W. 2) shows that accused’s course in the university prosides for purely theoretical knowledge of explosives. It was necessary to show that accused knew how to make a bomb.

(b) “ Accused has been taught to print and letter in capitals (admitted by accused).”

I have seen the envelope on which the address of Mr. Griffiths was printed. The lettering was not in fact printing. It is a fancy writing. Furthermore, the case diary (page 71) shows that the specimen hand-writing of accused and three others were submitted to the handwriting expert and that in the opinion of the expert the writing on the envelope was not in the handwriting of accused. On the contrary the handwriting expert gave evidence in court that the writing was similar to the handwriting of one Abdel Khalig Elias.

(c) “ Accused admitted that he was contemplating making a letter-box.

This is considered by the court as an involuntary admission by the accused that he knows some carpentry.”

The theory of the prosecution is that the accused made the timber box which contained the bomb (exhibit Â.5 (a)). I have seen the wooden frame, the making of which required great skill in the art of carpentry

The evidence does not show that accused was a skilful carpenter, nor was it proved that he had in his possession the kind of timber out of which the box was made.

(d) “Two Giant Manilla envelopes, the same type as the one in which the bomb was dispatched were found in possession of the accused (not denied.”(

The evidence of D.W. 2, the manager of Sudan Bookshop shows that the Giant Manilla envelope is on sale to anybody, and that It Is a common type of envelope, and it is also on sale in other bookshop. There is nothing in finding such envelopes in the office of accused.

(e) “Two different kinds of Sellotape found with accused, identical to the two different types of Sellotape used in the bomb. (Evidence of Government Analyst).”

The evidence of the police investigator shows that the two rings of Sellotape found in accused’s office were new and unused. Furthermore the manager of Sudan Bookshop stated “This Sellotape now in court is a common type which is sold by us and can be obtained from any other shop” (Trial Record, page 5o). This does not prove that the Sellotape found on the bomb was put on it by accused.

(f) “Two small pieces of wire were found with accused, one copper- plated and the other iron wire. They were identical In width and chemical composition to the wires used in the bomb, (Evidence of Government Analyst )”

Only one steel wire was found with accused, It is marked as exhibit C. (3). The copper-plated wire was found in the bomb and marked as exhibit A.5 (2). The wire found with accused is referred to In the Government Analyst report as specimen No.1. In his report (Trial Record, page 27) he stated “There were two different wires on specimen No. 4— (a) a coated copper wire, and (b) an iron wire. The spectrograph showed that the composition specimen No. 1 was identical with wire (b) on the bomb detonator case. The diameter of the wires were”the same, ranging between I.235 and 1.240 mm.

Against this there is the evidence of Mr. Parson (Trial Record, page 54). He is a mechanical engineer who knows more about wires than the Government Analyst. He said “The wire found with accused is a spring hard wire and I do not think it could be screwed up. One may be made to be very soft and the other very hard. The ends are different. Those on the wooden frame are sharp and cut with pliers. Those of the wire found in accused’s office must have been cut with a machine. The wire on the tin is a copper wire.”

I have myself seen these wires. It is clear to the naked eye that they are not similar. The Government Analyst himself said that the

piece of wire found with accused is short and does not fix in the box (Trial Record, page 21).

(g) “A box of screws was found with accused. These screws were identical in chemical composition and appearance to the screws used in the bomb. (Government Analyst.)”

The evidence of Anthony Kyriazis shows that this kind of screw is on sale in many shops in Khartoum and they are commonly used. Their presence in the office of accused does not necessarily connect him with the making of the bomb.

(h) “A lot of postcards were found with the accused and are identical with the postcards used in the bomb.”

The evidence of the Sudan Bookshop manager shows that anybody may have access to such cards.

(i) “Accused was found in possession of two kinds of shotgun cart ridges, i.e., Eley Kynock and Rottwell. The Government Analyst gave evidence to the effect that the explosive substance forming the bomb was composed of three different kinds. Two of which after chemical analysis were proved to be Eley Kynóck and the other Rottwell. Furthermore the remainder of the cartridge tube used in the bomb was an Elev Kynock.”

The theory of the prosecution is that as th’ accused was in possession of this brand Qf ammunition, he must have used it in the bomb. This theory is defeated by the prosecution witnesses themselves.

It is proved that accused was in possession of o cartridges, and that he only spent five of them. The accused explained that he spent the five cartridges in shooting. The two drivers who usually accompany accused to Gineid stated that he ‘never shot any birds or game, but the police investigator said (Trial Record, page 7) that he sent *cused’s shotgun for examination and the experts stated that it was used, but they cannot tell when it was used. He said that he sent it five days after the incident. This proves that accused used his shotgun.

The• Government Analyst stated (Magisterial Inquiry. page 49) about the composition of the bomh ‘ were 98.9 per cent. of grey irregular granules. None of this type is found in the Iley Kvnock and Rottwell cart ridges I examined and shich wcrc stated to have been found vith.accust’d, I cannot recognise the gre\’ irregular granules of what type or make of cartridge they are because I am not isn explosive expert.”

This piece of evidence shows that 989 per cent, of the bomb cannot be identified or explained

The kind of cartridges found ith accused ini’ ( ommon It W not proved that accused pu hased more than ço cartridges of wh.ich 4ç

were found in his possession. The Government Analyst on being cross- examined at the trial said (page 20)" to make such a bomb I would need x cartridges.” This proves beyond reasonable doubt that the theory of the prosecution in this respect is wrong.

(j) Typing paper. The evidence of the manager of the Sudan Bookshop shows that this is on sale everywhere in the book stores.

(k) The court argued that the Land Rover type 8o spring found in the car used by accused is identical with the spring found on the bomb.

I have seen the spring found in accused’s car. It is known as exhibit A. 4. The Government Analyst himself stated on being cross-examined (Record, page 21) the spring cannot be compressed by hand and it cannot be compressed by using any of the tools found with accused. This clearly shows that the spring found on the bomb has nothing to do with the spring found with accused. Furthermore, the evidence of P.W.10 shows that the Land Rover spring is extensively used and that they are on sale in the stores of Mitchell Cotts. He said about 200 such cars use the type of spring which was found in accused’s car.

The motive. In my view the evidence of Mr. Grifliths’ servant does not prove anything. The fact that Mrs. Griffiths dressed herself nicely when the accused visited her is quite normal. As to the photograph which shows the accused kissing Mrs. Griffiths on Christmas Eve, this has been proved to be the custom of nearly all Europeans on such occasions. The kissing itself took place in the presence of Mr. Griffiths. Furthermore, there are other persons in the same party and in one case, a married man kissed another lady in the presence of his wife.

The court take the view that the accused’s intention was to delay the departure of Mr Griffiths. I do not think that if Mr. Griffiths was injured in the eye, he would remain in the Sudan. The probable thing to do is to take his wife and go to the U.K. for treatment since he had resigned his post in the Sudan.

Did accused put the letter in the Sudan Club letter-box ?

The court heard the evidence of the Ghaffir who said that the accused arrived in a box-car at 3 a.m., and that he was not carrying anything. The court said the Ghaffir was lying in saying that the accused was not carrying anything in his hand. I do not know why the court doubted the veracity of this Ghaffir. Furthermore, the court visited the site and found that the Ghaffir could not see anything from the gate. The court also inferred that the wooden staircase was reserved for the servants and that the accused must have pushed the envelope in the letter-box at that time.

In both civil and criminal. Cases, the judge may adjourn the court to enable the jury to view any material property or thing during the trial,

but the accused or his pleader should be allowed also to move with the court so that he will be able to explain any inference that may be drawn against him. The learned advocate for the appellant is protesting against this, and he is able to explain that the wooden staircase was intended for the residents and the other two staircases were for the servants.

It is proved that the envelope could not go easily into the letter-box and it must have been pushed. If the accused pushed it at 3 a.m. the Ghaffir must have seen him or heard the noise. The Ghaffir stated (Trial Record, page 13) that he sat on a chair near the letter-box and that accused did not come out of his room.

Taking the evidence as a whole, I do not think that the prosecution was able to connect the accused either with the making of the bomb or its dispatch in the Giant Manilla envelope to Mr. Griffiths.

The case was not proved against the accused and I refuse confirmation of the finding and order that the accused be set at liberty forthwith.