A Handbook for Public Prosecutors [3rd Revised ed.] 9987080073, 9789987080076

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A HANDBOOK FOR PUBLIC PROSECUTORS

A HANDBOOK FOR PUBLIC PROSECUTORS

B.D. CHIPETA

Mkuki na Nyota Publishers P. O. Box 4246 Dar es Salaam, Tanzania www.mkukinanyota.com

Published by: Mkuki na Nyota Publishers Ltd Quality Plaza Building Nyerere Road Dar es Salaam, Tanzania. Website: www.mkukinanyota.com

© B. D. Chipeta, 2009

ISBN 978-9987-08-007-6

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means without the prior written permission of the publisher, or be otherwise circulated in any form of binding or cover other than in which it is published and without a similar condition being imposed on the subsequent purchaser.

To My late mother who first sent me to school

Contents Acknowledgements Preface to the First Edition Preface to the Second Edition Preface to the Third Edition

ix x xi xii

Part I The Public Prosecutor and The Law Of Criminal Procedure Chapter 1 Appointment, Powers and Duties of a Public Prosecutor Chapter 2 Jurisdiction and Powers of Courts Chapter 3 Formulation of Charges or Complaints Chapter 4 The Accused and his Plea Chapter 5 Bail Pending Trial Chapter 6 Procedure in Trials Chapter 7 Judgments and Sentences Chapter 8 Substituted Convictions Chapter 9 Committal Proceedings

1 5 11 33 41 51 61 71 79 83

Part II Criminal Law: Select Offences Chapter 10 General Rules of Criminal Responsibility Chapter 11 Offences Relating to the Administration of Justice Chapter 12 Offences Against Public Tranquility, Health and Convenience Chapter 13 Offences Against Morality Chapter 14 Offences Involving Bodily Injury Chapter 15 Theft and Allied Offences Chapter 16 Forgery and Allied Offences Chapter 17 False Pretences and Allied Offences Chapter 18 Robbery and Extortion Chapter 19 Burglary, Housebreaking and Allied Offences Chapter 20 Offences Involving and Causing Damage to Property Chapter 21 Offences Under the Road Traffic Act Part III Basic Principles of the Law of Evidence Chapter 22 What Evidence is Admissible? Chapter 23 Competency, Compellability and Privilege vii

85 87 97 103 109 115 119 133 137 143 149 155 159 165 167 171

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A Handbook for Public Prosecutors

Chapter 24 Chapter 25 Chapter 26 Chapter 27 Chapter 28 Chapter 29 Chapter 30 Chapter 31 Chapter 32

Facts not Requiring Proof Admissions and Confessions Documentary Evidence Opinion Evidence Banker’s Books Evidence of Character Burden of Proof Credibility of Witnesses and Weight of Evidence Examination of Witnesses

179 187 197 201 205 207 211 217 227

Part IV The Art of Conducting Cases Chapter 33 The Public Prosecutor and Case Preparation Chapter 34 The Choice of Witnesses Chapter 35 How to Conduct Examination-in-Chief Chapter 36 How to Conduct Cross-Examination Chapter 37 How to Conduct Re-Examination Chapter 38 Final Submissions

233 235 239 245 249 259 261

Appendices Appendix I Appendix II Appendix III Appendix IV

265 267 268 273 282

Bibliography Excerpts Case Index Alphabetical Index

Acknowledgements I express my gratitude to the following authors, copyright holders and publishers from whose works, with their permission, I have drawn quotations and/or materials in the preparation of this Edition as well as the previous Editions: Butterworth, The Eastern/East Africa Law Reports (EA). Donovan, Tact in Court, Sweet & Maxwell. Douglas Brown, Criminal Procedure in Uganda and Kenya (1965), Sweet & Maxwell. H.F. Morris, Evidence in East Africa, (1968), Sweet & Maxwell, Osborn’s Concise Law Dictionary, edited by Leslie Rutherford and Sheila Bone, Sweet & Maxwell. R.K. Soonavala: Advocacy – Principles & Practice (1953), N.M. Tripathi (Private) Ltd. S.C. Sarkar, Evidence, 11th Edition, S.C. Sarkar & Sons (P) Ltd. The Honourable The President of the erstwhile Court of Appeal for East Africa: Eastern and East Africa Law Report. (EACA and EA). The Honourable The Chief Justice of Uganda: Uganda Law Reports (ULR). The Chief Justice of Tanzania: Tanganyika Law Reports (R), High Court Digest of Tanzania (HCD), Law Reports of Tanzania (LRT) and Tanzania Law Reports. Wrottesley, Examination of Witnesses, 2nd Edition, Sweet & Maxwell. I should also like to express my gratitude to the late Mr. Lutego William, my daughter Susan and my son Walter for their assistance in compiling the case index of the Second Edition and to all my friends and colleagues, far too numerous to mention by name, for their useful suggestions, comments and encouragement in preparing this edition. Last but not least, I express my gratitude to my wife Ruth for her tolerance and encouragement at every stage of preparing the original manuscript and later editions of this book. B.D. Chipeta August, 2007

ix

Preface to the First Edition A Handbook for Public Prosecutors has been designed primarily for Public Prosecutors. However, it is sufficiently comprehensive, although not exhaustive, to be useful for those fresh on the Bench or at the Bar, and to investigators of crime, as well as to those who are required to do Law examinations in Criminal Law, Criminal Procedure and the Law of Evidence for advancement in their careers. As the book is intended to be used by lawyers as well as those who have only a nodding acquaintance with the Law, effort has been made to strike a compromise in the content and presentation of materials. Every effort has been made to present the Law as it is rather than the usual Law textbook approach of discussing what the Law should be. For the same reason, an exhaustive discussion of the subjects covered has been avoided. Only where a particular topic has appeared sufficiently important or of very common application has a detailed treatment been made. This has been done in the hope that the new comer to the Law will not be discouraged by a mass of intricate details. The book is based on the Tanzania Penal Code, Criminal Procedure Code, the Evidence Act and other statutes. However, it is hoped that the reader elsewhere in East Africa should have no difficulty in finding the relevant equivalent provisions of the applicable legislation in the other East African countries which are invariably identical. For the convenience of the reader, foot notes have been avoided. All references to statutes, cases, etc. appear in brackets in the text. It has further been appreciated that some of the readers of this book may be in areas where law reports are not always available. For this reason, it has been necessary, within the scope of the book, to quote extensively from important authorities. Where the point decided in a particular case is relatively short or minor, the facts of the case have been omitted, the ratio decidendi digested without necessarily quoting it verbatim, and the citation has been given. B.D. Chipeta High Court Dodoma June, 1978

x

Preface to the Second Edition A second edition of this book at this early stage has been necessitated by two main factors: the first is that since publication of the book, there have been important changes in the Law in Tanzania. It has therefore been imperative to incorporate those changes in a new edition. Second, experience with the first edition has pointed to an urgent need to include in the book more subjects for the benefit of the reader. However, except where changes have been found to be necessary for the benefit of the reader, the original style of presentation has been retained. B.D. Chipeta High Court Tabora April, 1982

xi

Preface to the Third Edition Apart from the reasons which necessitated the birth of the second edition of A Handbook for Public Prosecutors, this third edition has become necessary because it is long overdue. Over the last two decades or so, there have been major changes in our criminal law as well as in our criminal procedure law – particularly in the latter where a new Criminal Procedure Act was enacted in 1985. The Penal Code itself has undergone major amendments. Besides, case-law has been enriched over the years. Hence, this third edition. B.D. Chipeta Dar es Salaam August, 2007

xii

Part I

The Public Prosecutor and the Law of Criminal Procedure

The Public Prosecutor and the Law

3

Introduction A public prosecutor is an integral part of the machinery for the administration of criminal justice. No legal system that uses public prosecutors in the dispensation of criminal justice, therefore, can afford inexcusable weaknesses on the part of its public prosecutors. Like many occupations, the job of a public prosecutor demands intelligence, training, courage, common sense, tact, patience, capacity for hard work, and an interest in the job. A public prosecutor with these qualities is certain to derive pleasure and satisfaction from the work, and is an asset to the administration of criminal justice. For those with requisite qualities, the job of a public prosecutor is a most fascinating one. It is never dull, for no two cases are the same; and each case has its own “dramatis personae”. The scenes keep on changing, the characters come and go, the climax is breath-taking, and the end of one case is but the end of a scene or an act in an endless drama. It involves endless battles of wits. Each day that passes enriches your experience, and as years go you can draw on that experience. For the man with the requisite qualities of a public prosecutor, therefore, there will be sympathy and encouragement from the magistrates, applause from the watchful public, and adequate remuneration for his labours from his superiors. But a public prosecutor who lacks even a modest amount of these qualities or any of them is a menace to the administration of justice. The sooner he quits for desk work or some other prosaic assignments the better for him and justice. A public prosecutor, as an officer of the court, is charged with the very important duty of assisting the court in discovering the truth or otherwise of allegations against accused persons. The duty of a public prosecutor is to present the case against an accused person by bringing all the evidence that is necessary and available, and presenting it in the best possible manner, in order to enable the court to reach a just decision. It is therefore incumbent upon the public prosecutor to ensure that the evidence presented explains all the questions in issue in the case he is prosecuting. Although he should not be unduly anxious to secure a conviction, it is certainly his duty to see that as far as possible all the evidence necessary and available to prove the charge(s) is brought out so as to leave little room for ambiguity and so that it should never be said that an acquittal was owing to failure on his part to discharge his duties properly. Quite a number of unjust acquittals have resulted from bad presentation of the cases by public prosecutors. It is all too easy for a public prosecutor

4. Part 1 The Public Prosecutor and the Law of Criminal Procedure

to confuse an otherwise clear case. He can, through genuine ignorance, lack of zeal or preparation, or other less excusable reasons, confuse himself, his witnesses and the court. Now, in a majority of cases, prosecution is conducted by police officers. By the nature of their training and experience, not all of them are versed in this important and delicate task. In addition to logic, common sense and preparation, the job of conducting prosecutions requires a sound knowledge of the basic principles of criminal law, criminal procedure, the law of evidence and the principles of practice which are used and applied in courts. An exhaustive knowledge of the Law is, of course, impossible for a police officer unless he possesses a law degree; but he should certainly be conversant with the basic principles of substantive and procedural law and practice, as well as the basic principles of the art of prosecuting cases. These are as much his essential tools as are his case files and exhibits. A public prosecutor who goes to court with no idea of the elements of the offence he is going to deal with, the possible defences available to the accused, and how to deal with his boisterous, revengeful, hostile, timid, or stupid witnesses is sure to land in trouble. He is certain to confuse his witnesses, himself and the court. The consequences of such confusion are likely to be an unjust decision. No judicial system worth its name can afford that. Many public prosecutors find solace in the hope that magistrates will help them out should they run into trouble – after all, a magistrate is supposed to know the law. That is generally true. Magistrates do often come to the rescue of their public prosecutors in order to avoid their arriving at perverse decisions. But they do not do so liberally or else they will be labelled as biased. A magistrate cannot or should not take the place of a public prosecutor. If that were so we could dispense with public prosecutors. Besides, and to be expected, a public prosecutor may find himself or herself before a magistrate who himself is prone to committing errors either through haste, indifference, or even ignorance. Given a public prosecutor who is equally hasty, or ignorant, the predictable result is chaos. This book provides some guidance to public prosecutors and others on basic principles of criminal law, criminal procedure, and the law of evidence and the art of prosecuting cases.

Chapter 1

APPOINTMENT, POWERS AND DUTIES OF A PUBLIC PROSECUTOR Appointment of public prosecutors The office of public prosecutor is a creature of statute. So, the appointment, powers and duties of a public prosecutor are derived from statutory provisions. In Tanzania, all criminal prosecutions are the direct concern of the Director of Public Prosecutions who is appointed by the President and is subject to the directions or control of no person other than the President. The Director of Public Prosecutions, naturally, cannot conduct all prosecutions nor discharge all his other duties alone. He has officers subordinate to him. They are state attorneys who are qualified lawyers. But even with the assistance of state attorneys it is not possible for the Director of Public Prosecutions to conduct all the business that falls under his umbrella. State attorneys are still so few that of necessity they confine themselves to conducting prosecutions in serious cases such as homicide, treason and other cases which involve intricate questions of law. This position, it is hoped, will change in the foreseeable future. It is in appreciation of the fact that there is a shortage of professional lawyers that the Director of Public Prosecutions is empowered by statute to appoint public prosecutors. In Tanzania, under the provisions of section 95 of the Criminal Procedure Act, Cap. 20, RE 2002, the Director of Public Prosecutions may, by notice in the Gazette, appoint public prosecutors for Tanzania or for any specified area of Tanzania, either generally or for any specified case or category of cases. An example of appointment of public prosecutors for specified class of cases was the appointment of four employees of the Bank of Tanzania by the Public Prosecutors (Appointment) Notice, published as Government Notice No. 230 of 1975, who were appointed as public prosecutors in respect of offences against the provisions of the Exchange Control Ordinance. Every public prosecutor is subject to the express directions of the Director of Public Prosecutions (s. 95(3) CPA).

6 Part 1 The Public Prosecutor and the Law of Criminal Procedure

Under section 99 (1) of the Criminal Procedure Act, any magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorised by the President in his behalf shall be entitled to conduct the prosecution without such permission. The application of these provisions, which were then contained in section 87(1) of the repealed Criminal Procedure Code, was discussed in the case of Republic v. Phillip Menrad, (1976) LRT n. 17. In that case the public prosecutor before the District Court was a Detective Sergeant-Major who had not been duly appointed as a public prosecutor. The record merely showed that the public prosecutor was of that rank, but it was silent on the question whether or not the Sergeant-Major had been given permission to conduct the prosecution. Laying down the procedure to be followed by a court where a person appearing as public prosecutor has not been duly appointed as public prosecutor either generally or for any specified case, the High Court (Kisanga, J. – as he then was) said, at page 54: It is true that the court noted his rank on the file as being that of Detective Sergeant-Major but it seems that this cannot be conclusive that the court did, in fact, permit him to conduct the prosecution . . . Where a situation like this arises I think the better practice should be that the police officer concerned should make an application to the court stating that he is not authorised to act as a public prosecutor but that for reasons to be specified he applies to be allowed to conduct the prosecution, and if the presiding magistrate is satisfied with the reason so given then he may grant the request; but in order to avoid any doubt or uncertainty there should be a record on the file indicating the granting of such permission. The Court, however, held that the irregularity was curable under the provisions of section 346 of the Criminal Procedure Code (now section 388 of the Criminal Procedure Act) because it was not such a fundamental irregularity as to vitiate the proceedings. This case demonstrates that it is the duty of such officers to make an application before the court after considering the reasons for the absence of a duly appointed public prosecutor, and it is for the court to grant permission or refuse it. Unless there is good reason for refusing to grant the application, such as the fact that the officer is too junior and the case too intricate for the

Appointment, Powers and Duties of a Public Prosecutor

7

officer to prosecute without endangering the ends of justice, a magistrate will usually grant the application.

Duties of public prosecutors The duties of a public prosecutor are to prepare charges against alleged offenders and to prosecute them in courts with the requisite jurisdiction. His duties, therefore, cover perusal of the contents of his files, formulating or perusing the charges and the actual prosecution of the cases before courts of law. In the court, he is required to examine witnesses and so bring out all that the witnesses know about the matter in order to enable the court to reach a sensible and just decision. This is not as easy as it sounds. It is not enough that the public prosecutor has the statements of witnesses before him and the witnesses saw or perceived the events that led to the commission or actual commission of a crime. The public prosecutor has to pick his way through thorny bushes and pitfalls. It is a way full of intriguing rules of law and practice, human weaknesses and human ingenuity. A public prosecutor, therefore, must not take any case for granted. He must be alert from the beginning to the end. Since the magistrate knows nothing about the case, it is the public prosecutor’s duty to see to it that the witnesses bring out the whole story clearly and as logically as possible. Herein lies the difficulty. The public prosecutor will probably have read the statements of his witnesses and may have the utmost faith in his witnesses. But witnesses are human beings, and the majority of them not only have a bad memory, but also are unfamiliar with the atmosphere in a court of law. The public prosecutor may know from the statement what a particular witness is supposed to say, but the witness will be testifying to events that happened months or even years back. He cannot, therefore, remember everything. Then, of course, the witness, unfamiliar with the court atmosphere, may be frightened or may feel embarrassed in certain situations. And what is more, a witness often says he knows what happened, but most of what he says he knows may be inadmissible in evidence. It is the duty of the public prosecutor to extract from all such witnesses, without breaking the rules, as much as they can remember, and is admissible in evidence, about the incident. As far as he can, the public prosecutor must bring out the story so as to form a coherent picture in the mind of the magistrate showing not only that the act was done or omission made, but also how, when, where it happened and who did or omitted to do it.

8 Part 1 The Public Prosecutor and the Law of Criminal Procedure

Naturally, a public prosecutor will have some faith in his witnesses and in the strength of his case, otherwise there would be no point in taking the case to trial. He is expected, therefore, to present his case as forcefully as he can. He must leave no stone unturned in presenting his case. In doing so, however, he must not conceal facts which might assist the court in reaching a just decision, even if some such facts should turn out to be in favour of the accused. As was held in the case of Ochau s/o Osigai, 23 EACA 586, it is the duty of prosecuting counsel to put before the court all the material facts which are within his knowledge. But this is far from suggesting that a public prosecutor should assume both the role of a public prosecutor and that of defending counsel. The duty of a public prosecutor is to present his case fairly, but he must not suppress the truth. It must be understood that an unjust acquittal is as damaging to our sense of justice as an unjust conviction.

Powers of a public prosecutor A public prosecutor is empowered to appear and plead without any written authority before any court in any case for which he has charge is under inquiry, trial or appeal; and if a private person instructs an advocate to prosecute in any such case the public prosecutor may conduct the prosecution, and the advocate so instructed will act in such case under directions of the public prosecutor (see s. 97 CPA). Further, in any trial before a subordinate court a public prosecutor may, with the consent of the court that is seized of the matter or on instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of one or more of the offences with which such person is charged. If the withdrawal is made before the accused person is called upon to make his defence, such accused person must be discharged; but such discharge will not operate as a bar to subsequent proceedings against him on account of the same facts (see s. 98(a) CPA) and Victor Juma Shaaban v. Republic, (1969) HCD n. 221; and Republic v. Suleiman Saleh Ali, (1985) TLR 96). The phrase “before the accused person is called upon to make his defence” means before the accused has said anything in answer to the evidence of the prosecution. If, for example, at the close of the prosecution’s case, but before the accused gives his defence the accused absconds or escapes and the prosecution withdraws, the accused may be prosecuted afresh on the same facts when re-arrested.

Appointment, Powers and Duties of a Public Prosecutor

9

In the case of Republic v. Mashauri, (1972) HCD n. 116, the accused escaped after the prosecution had closed its case but before he gave his defence. The charge was then withdrawn under section 86(a) of the Criminal Procedure Code (now s. 98 (a) of the Criminal Procedure Act) as the accused could not be re-arrested within a short time. When he was re-arrested, two questions arose, namely (1) whether the withdrawal from prosecution at that stage was in accordance with the provisions of section 86(a) of the Criminal Procedure Code; and (2) whether the case could be continued from where it had stopped. The High Court of Tanzania held that the withdrawal under section 86(a) of the Code was quite proper; but on the question whether the proceedings could be continued from where they were left off, the Court said: Withdrawal from prosecution under section 86(a) puts an end to the particular complaint or charge . . . I therefore think that the course open to the prosecution is to bring a fresh charge against the accused. Where the application to withdraw from prosecution is made after the accused is called upon to make his defence, the accused must be acquitted (see s. 98(b) CPA). In such an event, the accused cannot later be charged with the same offence on the same facts. Obviously, no sensible public prosecutor will make an application under section 98(a) of the Criminal Procedure Act without good reason; and except in exceptional circumstances, a magistrate will not withhold consent to the application for withdrawal. Among reasons for withdrawal are insufficiency of the prosecution’s case, or where the accused absconds and it is not expected that he will be re-arrested within a short period of time. The exercise of powers under section 98(b) of the Act is very rare, and it will normally be on the express instructions of the Director of Public Prosecutions. A complainant may withdraw the complaint at any time before a final order is passed if he satisfies the court that there are sufficient grounds for permitting him to withdraw such complaint. If the complaint is so withdrawn, the court will thereupon acquit the accused (see section 224 of the Criminal Procedure Code). But this is permitted only in cases of minor offences. A public prosecutor must note that the section requires that he must satisfy the court that there are sufficient grounds for permitting him to withdraw the complaint. In the case of Said Abdallah v. Republic (Tabora Registry Criminal Revision No. 1 of 1982 – unreported), the accused was charged with the offence of causing bodily injury through dangerous driving contrary

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Part 1 The Public Prosecutor and the Law of Criminal Procedure

to section 40 (1) of the Road Traffic Act, 1973. A day before the hearing date, the case came up for mention and the public prosecutor made the following application: (1) Pray to withdraw the case under section 200 Cap. 20. Without further ado, the learned magistrate made the following order: Charge withdrawn under section 200 of Cap. 20 and the accused is acquitted accordingly. When the matter came up for revision, the High Court quoted section 200 of the Criminal Procedure Code and stated: From the language of the section, it is apparent that an order under section 200 of the Criminal Procedure Code is not to be lightly made. It is a matter that involves the exercise of a judicial discretion. The section clearly states that the complainant has to satisfy the court that there are sufficient grounds for permitting him to withdraw the complaint before the court can allow him to do so. Since it is a matter of exercise of a judicial discretion, such discretion must be judicially exercised. That being the position, bare application to withdraw a complaint under this section will not suffice. The complainant must give reasons to the satisfaction of the court. The reason is plain enough: the result of withdrawing a complaint under this section is an acquittal of the accused. Ipso facto, the accused cannot be subsequently charged and tried on the basis of the same facts.

Chapter 2

JURISDICTION AND POWERS OF COURTS

Definition In simple terms, jurisdiction of a court means the extent to which, or the limits within which, such court can exercise its powers, and what powers. These limits may be geographical or pecuniary, or they may be prescribed by categorisation of offences which should be tried or inquired into by a given court, or the sentences which such court can mete out.

A. Jurisdiction It is essential for a public prosecutor to know jurisdiction of courts. You just do not file a case in any court you want. Different courts have different powers and the public prosecutor is required to know the extent of the powers of a court before filing the case, in the same way that a magistrate will check the law and see if he has jurisdiction to try the case or inquire into it before proceeding to deal with it. If for any reason a magistrate should find that he has no jurisdiction to deal with a given case, he will normally transfer it to a court with competent jurisdiction to try the same (see s. 189 CPA). It must be appreciated that the question of jurisdiction is not simply one of technicality. It is fundamental. Any trial or inquiry into a matter by a court which has no jurisdiction to deal with the same renders such trial or inquiry a nullity.

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Part 1 The Public Prosecutor and the Law of Criminal Procedure

Types of jurisdiction (i) Territorial jurisdiction Territorial jurisdiction means the geographical area within which a court can exercise its powers. A Primary Court, for instance, has jurisdiction within the district in which it is situated, a district court in the district it is situated, and a court of resident magistrate has jurisdiction in the region within which it is situated or established. The High Court, however, has jurisdiction within the territorial limits of the State, that is it has unlimited jurisdiction in criminal as well as civil matters (ss. 4 and 5 of, MCA, Cap. 11 RE 2002). Before any court proceeds to try or inquire into a case, therefore, it must satisfy itself that the alleged offence was committed within its territorial jurisdiction. In the case of Sharma v. Republic (20 EA CA 310), territorial jurisdiction was in issue. The Court of Appeal for Eastern Africa pointed out that proof of commission of an alleged offence within the jurisdiction of the court is essential to the prosecution case, and that although not capable of exact proof, evidence should be led on which the necessary inference can be drawn.

(ii) Jurisdiction by categorisation of offences This jurisdiction is conferred by legislation expressly stating which offences are triable by what court. The First Schedule to the Criminal Procedure Act, for instance, sets out what offences are triable by subordinate courts and which ones are triable exclusively by the High Court. Similarly, the First Schedule to the Magistrates’ Courts Act (Cap. RE 2002, of the Revised Laws) sets out which offences may be tried by primary courts in addition to other subordinate courts. In the case of Republic v Mrisho s/o Seffu (1968) HCD 149, the accused was convicted by a district court of the offence of incest by males contrary to section 158 (1) of the Penal Code. The High Court in revision declared the trial a nullity as the offence is clearly shown in the First Schedule to the then Criminal Procedure Code to be triable by the High Court only. The conviction was quashed, the sentence set aside and the case was remitted to the subordinate court for a preliminary inquiry, now preliminary hearing at the option of the Republic.

Jurisdiction and Powers of Courts

13

(iii) Pecuniary Jurisdiction Pecuniary jurisdiction, which usually applies to civil cases, means what it says; namely limitation of the power of a court by the value of the subject matter in issue, a subject which is outside the purview of this book.

Jurisdiction as to sentencing generally The sentencing powers of subordinate courts are not unlimited. In other words, a subordinate court may not pass on a convicted person any sentence of imprisonment, fine or corporal punishment it pleases. Section 170 of the Criminal Procedure Act, prescribes what sentences subordinate courts may lawfully pass. That sub-section provides that in cases in which such sentences are authorised by law, a subordinate court may pass a sentence of imprisonment for a term not exceeding 5 years. That is the general rule. Similarly, it may not impose a fine of more than 20 million shillings. So where, for instance, a subordinate court convicts a person of, say, the offence of stealing from the person of another, an offence which carries a maximum sentence of 10 years imprisonment, the maximum sentence of imprisonment it can impose on the convicted person is 5 years imprisonment, regardless of what the aggravating circumstances may be. If, however, a subordinate court convicts a person of an offence scheduled under the Minimum Sentences Act, 1972, and such sentence is authorised by law, it may pass a sentence of imprisonment for such offence for a term not exceeding 8 years, unless some other law provides otherwise.

Exceptions Generally speaking, a court will try a case or inquire into it where it is satisfied that it has jurisdiction within the provisions discussed above. If for any reason the court finds that it has no jurisdiction to deal with the case, it will normally transfer the case to a court of competent jurisdiction or, if it is triable by the High Court only, the subordinate court will proceed by way of a committal proceedings. However, there are certain important exceptions to these general rules. Where, for instance, it is uncertain in which of several local areas an offence was committed; or if an offence was committed partly in one local area and partly in another; or where the offence is a continuing one and continues to

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Part 1 The Public Prosecutor and the Law of Criminal Procedure

be committed in more local areas than one; or when the offence consists of several acts done in different local areas, then such offence may be inquired into or tried by a court having jurisdiction over any such local areas (see s. 183). If the offence was committed in the course of a journey, it may be inquired into or tried by any court through which the offender passes in the course of such journey so long as such court has otherwise jurisdiction to try or inquire into the offence (see s. 184). Travelling on a train without a ticket is a ready example of such cases. In case of any doubt as to which court has jurisdiction to try or inquire into an offence, any court having such doubt should refer the matter to the High Court which will then decide which court should try or inquire into the mater, unless the accused has shown that no court in Tanzania has jurisdiction in the case (see s. 185 CPA).

Transfer of cases in certain circumstances Where, say, a district magistrate has jurisdiction in every respect to inquire into or try a case, it is competent for him to transfer the case to a court of competent jurisdiction beyond the territorial limits of his jurisdiction where he is satisfied that the general convenience of the parties and witnesses requires it (see s. 190 CPA). The High Court too has power to order that any offence be inquired into or tried by any court not otherwise empowered by in other respects competent to try or inquire into the offence, or that any particular case or class of cases be transferred from any court subordinate to its authority to any other court or equal or superior jurisdiction, or that an accused person be committed for trial to itself. The High Court will exercise this power where it has been made to appear: 1 2 3 4 5

that a fair and impartial inquiry of trial cannot be had in any court subordinate to it; or that some question of law of unusual difficulty is likely to arise; or that a view of the place in or near which an offence has been committed may be required for the satisfactory inquiry into a trial of the same; or that such an order will tend to the general convenience of the parties and witnesses; or that such an order is expedient for the ends of justice or is required by any provision of the Criminal Procedure Act.

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Jurisdiction and Powers of Courts

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The High Court will invoke these powers either on the report of the lower court, or on the application of a party interested, or on its own initiative. Where a party seeks to move the High Court to exercise any of these powers, he must do so by motion and, unless the applicant is the Director of Public Prosecutions such application must be supported by an affidavit. If the application is made by an accused person, he must notify the Director of Public Prosecutions in writing with a copy of the grounds on which the application is based. The High Court on its part will not make any order on the merits of the application unless at least 24 hours have elapsed between the service of the notice and the hearing of the application. Besides, the High Court may require an accused to execute a bond conditioned that he will, if convicted, pay the costs to the prosecutor (see s. 191 CPA).

Conflict of interest and bias Closely connected with the above provision is the question of interest and bias on the part of a trial judge or magistrate. Where a magistrate has an interest in the case, he should not try the case. Similarly, a magistrate must not try a case in which it is likely or probable that reasonable people may think that he is biased. These rules are based on the cardinal principle that a man ought not to be a judge in his own cause and that justice must not only be done but must be seen to have been done. An old and classic case on conflict of interests and bias is the English case of Dimes v. Guard Junction Canal (1852) 3 HLC 759. In that case, Lord Chancellor Cottenham had, in a chancery suit, affirmed a number of decrees made by the Vice-Chancellor in favour of a canal company in which L ord Cottenham had financial interest as a shareholder. Lord C ottenham’s decrees were set aside by the House of Lords on the ground of such financial interest. In that case Lord C ampbell said, at page 793: No one can suppose that Lord Cottenham could be, in the remotest degree influenced by the interest that he had in this concern; but, My Lords, it is of the last importance that the maxim, that no man is to be a judge in his own cause, should be held sacred. . . And it will have a most salutary influence on. . . tribunals when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not in-

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fluenced by their personal interest, but to avoid the appearance of labouring under such an influence. The question which often causes some difficultly to magistrates as well as public prosecutors is to define the term judicial bias and when to hold that a magistrate is disqualified from trying a case on the ground of bias. The law does not require that there should be actual bias on the part of a magistrate. The law is that where circumstances are such that reasonable people would think that there is real likelihood of bias on the part of a magistrate, then such magistrate must not try the case, and if he does, a superior court will not allow the resulting judgment to stand. It is immaterial that the trial magistrate was in fact scrupulously fair in the trial. The question is whether, in the circumstances right-thinking people would say that the trial magistrate would be, or was, biased. This principle was aptly re-stated by L ord D enning, M.R., in the case of Metropolitan Properties Co. (FGC) Ltd v. Lannon & Others (1969) 1 QB 577 in which he said, at page 599: . . . in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact, favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be nevertheless if right-minded persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit. And if he does his decision cannot stand. . . Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. . . There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: “the judge was biased. . . So when an accused person shoots up and shouts to the magistrate:

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I don’t want you to try my case because the complainant is your school-mate. I want another magistrate. the magistrate will have to examine all the circumstances and then decide whether right-minded people would, in those circumstances, think it likely or probable that the magistrate may or would favour one side unfairly against the other. A magistrate, therefore, must not succumb to the request automatically, nor should he reject it off-hand. He must weigh it carefully and, if he is reasonable, he might even consult you, his public prosecutor. Whatever decision he comes to on the matter must be influenced by one consideration: what would the reasonable man go away thinking? (see also Michael M. Leopard v. Republic, (1977) LRT n. 1).

B. Power of courts Rejection of complaint or formal charge A magistrate is empowered to reject a complaint or formal charge if he is of the opinion that the complaint or formal charge presented by the public prosecutor or complainant does not disclose any offence. But if he does order that the charge or complaint be rejected he must record his reasons for doing so (see s. 129 CPA). This power will not, or should not, be invoked by a magistrate merely because the charge is defective in form. A charge must only be rejected under these provisions where it is clear, on the face of it, that it does not disclose any offence known to law. For instance, if the charge were to read: “Killing an animal”. And the particulars thereof alleged.

“That AB on 10th June 1976, did kill a goat at Magomeni in the Region of Dar es Salaam”, such a charge will be rejected because it does not disclose any offence. To kill a goat, per se, is not an offence. Rejection of a charge under these provisions, it will be obvious, reflects badly on a public prosecutor. It is tantamount to saying that the public prose-

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cutor is ignorant, incompetent, or indifferent. You cannot afford such epithets. So do be careful.

Choice of venue within court’s jurisdiction A magistrate’s court may be held at any place within the local limits of its jurisdiction provided that if it is proposed to hold it at a place not regularly or customarily used for such a purpose, public notice must be given of an intention to use such place for holding the court, prior to holding such court thereat. The power to hold court at a place that is not regularly or customarily used for holding the courts are increasingly being invoked in the wake of the call of “taking justice to the people”. The factors to be taken into consideration in deciding whether or not a magistrate’s court should be held at a place other than that in which it is customarily or regularly held, include convenience to the court, the parties and witnesses, and a saving of funds by way of reduction in operational costs. The important thing to remember is that such a venue must be within the local limits of the court’s jurisdiction. Besides the court may sit on a Sunday or a public holiday (s 10(5) CPA). Besides, the Chief Justice may, by order in the Gazette, authorise a district court to sit outside the district for which it is established when exercising its appellate, confirmatory or revisional jurisdiction (see s. 10(2) MCA). The times and places at which a magistrate’s court should sit will be determined as may be necessary for the speedy dispatch of the business of the court, subject to any general or special directions by the appropriate judicial authority (s. 10(3) “Appropriate judicial authority” is defined in s. 2 of the Magistrate’s Courts Act as meaning the Chief Justice and any person appointed by the Chief Justice under section 3 of that Act to be, or to perform the functions of, the appropriate judicial authority for the relevant purpose.

Open court Statutory provisions By the provisions of section 14(1) of the Magistrates’ Courts Act, a magistrate should not enquire into or try any offence, preside over any civil pro-

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ceeding or hear any appeal unless he is sitting in open court. However, a magistrate has discretion to sit in camera or to otherwise exclude persons or categories of persons for any proceeding or part thereof. The magistrate will also sit in camera in juvenile courts or where any law relates to domestic proceedings (see also s. 186 CPA). Some statutes expressly provide that certain proceedings must be heard in camera. One such law is section 186 (3) of the Magistrates’ Courts Act as amended by section 24 of Act No. 4 of 1998 which provides that notwithstanding the provisions of any other law, the evidence of all persons in all trials involving sexual offences “shall be received by the court in camera”.

Meaning of “Open Court” In the case of Biffo Mandirire v. Republic, (1960) EA 965, S ir R alph Windham, C.J. interpreted the words “shall be deemed an open court” as meaning: Shall be treated as an open court and made accessible to the public as such. Regarding the question as to what building can be used as a court house, the Chief Justice said, at page 967: Nor is there legally necessary ceremony in the nature of the “consecration” of a building as court house. Any building can be so used. But in order to establish that it is an “open court”. . . it must be shown, either by presumption or by proof: first that it is open, as of right, to any of the public who may present themselves for admission (though nobody need to have so presented himself); secondly, that the public are aware that the building or room in question is either habitually used for the trial of cases or is being or about to be used for the trial of a particular case. Another case which a public prosecutor would do well to note is the case of Willy John v. Republic, (1956) 23 EACA 509 in which the accused person’s trial was conducted in the Judge’s Chambers and no member of the public was present. The Court of Appeal for Eastern Africa stated, at page 510:

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There may have been good reasons why the court room was not used and there was nothing wrong in holding the trial in Judge’s Chambers provided they were treated as an open court to which the public had access. The actual presence of the public was not, of course, necessary. The test is not whether there were any members of the public in the room but whether the court was open to any one who presented himself for admission.

Language of the court By the provisions of section 13 of the Magistrates’ Courts Act, the language of Primary Courts is Kiswahili. The language of a Court of Resident Magistrate and of District Courts must be either English or Kiswahili or such other language as the magistrate holding such court may direct; but in the exercise of appellate, revisional or confirmatory jurisdiction by a District Court (in which case the record and judgment may be in English or Kiswahili), the record and judgment of the court must be in English.

Powers of court in case of non-appearance of complainant If the accused person appears before a subordinate court which has jurisdiction to hear and determine the case, in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or if the accused is brought before the court under arrest, then, if the complainant, having had due notice of the time and place appointed for the hearing of the charge, does not appear, the court must dismiss the charge and acquit the accused person. However, if for some reason the court thinks it proper to adjourn the hearing of the case until some other date, it may admit the accused person to bail or remand him to prison, or order such other terms as it may think fit (see s. 222 CPA). A public prosecutor ought to be conversant with the meaning of these provisions. By the provisions of section 2 of the Criminal Procedure Act, in private prosecutions, the private prosecutor or the person making the complaint before the court is the “complainant”; but in public prosecutions, the “complainant” is the person presenting the case on behalf of the Republic before the court, that is, the public prosecutor. This point was made abundantly clear in the case of DPP v. Philipo, (1971) HCD n. 295. In that case, the respondent was charged

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with the offence of assault causing actual bodily harm c/s 241 of the Penal Code. The record of the court proceedings read as follows: Pros. Complainant was around here but has now disappeared. I wonder if the provision laid down in section 198 CPC {now section 222 CPA} could apply. Court: It appears that the complainant who is the important witness in this case is not interested in this case and that is why he has absented himself from court. Therefore, under section 198 CPC the charge is dismissed and accused is acquitted. The Director of Public Prosecutions then appealed against that order. The High Court (El-Kindy, Ag. J – as he then was – stated: In my view the provisions of section 198 of the Criminal Procedure Code {now section 222 of the Criminal Procedure Act} apply to complainants. For the sake of convention the victim of crime has often been referred to as the complainant in practice. . . but in fact the complainant is the Republic which, as it were, complains to the Court of Law when it files charges. . . or, where it is the case of private prosecution brought under section 87 of the Criminal Procedure Code Cap 20, the person who complained and who is permitted to prosecute his case. Therefore, strictly speaking, the complainant as represented by the Public Prosecutor was present and in attendance on the date fixed for hearing and the person who was alleged to be absent was the alleged victim who was a mere witness in the case. Undoubtedly a magistrate has power under section 222 of the Criminal Procedure Act to dismiss a charge and acquit the accused person if the public prosecutor (or the complainant) is not present on the day fixed for hearing the case. So a public prosecutor should be on his toes and ensure that he/she is not caught up by the provisions of this section. Of course, magistrates will exercise these powers sparingly. They must carefully weigh the consequences so as to avoid miscarriage of justice. That, however, is no licence for sluggishness on the part of a public prosecutor. For this reason, it is the duty of a public prosecutor to make sure that he is punctual in attending to court work. If for any reason he is ill or late or absent, he/she must give prior notice to the court. It is dangerous to rely too much on the good sense and judgment of a magistrate. A public prosecutor must remember that a magistrate has a heavy schedule and, after all, magistrates are also human beings.

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Power of court to grant or refuse to grant adjournment Under the provisions of section 225 of the Criminal Procedure Act, magistrates have an unfettered discretion to adjourn a case to some other time and place to be then appointed and stated in the presence and hearing of the parties. This discretion is a judicial discretion and so should be exercised judicially. The court will adjourn a proceeding on its own motion or on the application of a party. It sometimes happens that a court refuses to grant an application for an adjournment and the prosecution is unable for some reason to proceed with the case, say, for absence of witnesses or incompleteness of investigations or even for less excusable reasons. In such a situation, what should the court do? That question arose in the case of Martin Nguma and Another v. Republic (1976) LRT n. 58 in which the accused were charged with conspiracy to defraud, fraudulent false accounting and theft in a district court in Dar es Salaam. The case started as far back as May, 1973 and was adjourned on several occasions on various grounds. On 14th January, 1975, the date fixed for hearing, the public prosecutor told the court that he did not have the police case file. The trial magistrate, however, refused to grant an adjournment and called upon the public prosecutor to produce evidence. The public prosecutor said that he did not have the witnesses and did not know anything about the case. He added that he believed the case file had been sent to the Director of Public Prosecutions. The magistrate then ruled that the prosecution had closed its case. He then held that the prosecution had failed to establish a prima facie case and so discharged and acquitted both accused persons under section 205 of the Criminal Procedure Code (now section 225 of the Criminal Procedure Act). P atel, J .) The Republic appealed against the acquittal. The High Court (P allowed the appeal and ordered that the trial should continue in the district court. The appellants then appealed to the Court of Appeal for East Africa in Criminal Appeal No. 48 of 1976. This appeal was consolidated with Criminal Appeal No. 69 of 1976 which originated from Kisutu district in Dar es Salaam. In this latter case, Juma Ismail Lakha and Another were charged with the offence of stealing and occasioning loss to a parastatal organisation. The case commenced in 1974 and at one stage it was withdrawn under section 86(a) of the Criminal Procedure Code (now section 98(a) of the Criminal Procedure Act). The appellants were subsequently re-arrested and charged again with the same offences in 1975. On 7th November, 1975, the day fixed for the hearing, the public prosecutor applied for an adjournment on the ground that the police case file had been referred to the CID Headquarters. Counsel of one of the accused persons objected to the application and the

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court said that after long and protracted delays by the prosecution it appeared that the investigators were indifferent to the plight of the accused persons or that the police had no case against the accused persons. The court then dismissed the charge and acquitted the accused persons under section 205 of the Criminal Procedure Code. As in Martin Nguma’s case (supra), the Director of Public Prosecutions apB iron, J .) allowed the pealed against the acquittal and again the High Court (B appeal and held that section 205 was inapplicable and so ordered that the trial should continue in the district court. In the Court of Appeal, those two appeals were consolidated. In a majority judgment, the Court stated: We have no doubt in our minds that this section presupposes that the prosecution has adduced evidence, whether by calling witnesses or otherwise, in support of the charge and has closed its case. The Court added: We endorse the view as indeed did both Patel and Biron JJ expressed in Ratilal’s case that It seems to us that the position is substantially the same where the magistrate has before him merely a public prosecutor, whose function is simply to conduct the case and examine the persons who are the true informers. If the latter are absent, and yet it is known that they are in existence and that their attendance can be secured, it seems to us little short of farcical to embark on the trial of the case and to acquit the accused, the complaint against him being wholly unheard. We are satisfied in both appeals before us the learned magistrate erred in holding that the prosecution had closed its case where no evidence was called and in fact no witness for the prosecution was present. In the result, we hold that the High Court was justified in setting aside the acquittal in each appeal in so far as it purported to be made under section 205 of the Criminal Procedure Code. The Court then proceeded to consider whether the magistrate in the two appeals could have invoked the provisions of section 198 of the Criminal Procedure Code. The Court stated: . . . the courts in this country are creatures of statute and have such powers as are conferred upon them by statute. We would only add that

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such powers include the construction of legislation and giving effect to the provisions contained therein. The Court went on: The word ‘complainant’ is not defined in this section or in the Criminal Procedure Code. But we learn from the judgment of Biron, J., a senior judge of considerable experience in the High Court, that the word ‘complainant’ is generally regarded by the judges in the High Court in Tanzania as including a public prosecutor. We would endorse this view. . . In our view it is logical and within the rules of interpretation to hold that the word ‘complainant’ includes a public prosecutor. What this means in effect is that where a private person complains directly to a magistrate in a criminal matter he is the ‘complainant’. If, however, the same person, instead of complaining direct to a magistrate were to complain to the police and the police brought the complaint to court in the name of the Republic then we think it follows that the Republic or the public prosecutor is the ‘complainant’ and the victim of the wrong complained of becomes a witness for the purpose of substantiating the allegation. The Court added further: In cases of ambiguity a court has a duty to construe the meaning of words. Sometimes in construing, a court, by way of analogy or to avoid impasse, gives an extended meaning to simple words. But it should not, because of the lack of legislation to cover a certain point, try to overstrain or distort the meaning of a word in order to span an unbridgeable gap. The legislature has not legislated to cover the point on which these two appeals turn, and a court should not by means of interpretation, as it were, attempt to legislate on behalf of the legislature. In our view section 198 was not applicable, as the complainant had appeared. On the larger question as to what a court should do in those circumstances, the Court stated: The fact that the Legislature has empowered a court in terms of section 201 of the Criminal Procedure Code [now section 225 of the Criminal Procedure Act] to grant or refuse an adjournment necessarily implies that a court has the power and authority to enforce an order

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it makes. To hold otherwise would make such power granted to a court meaningless or illusory. A court must have, within reason, the power to control or regulate its own proceedings in order to prevent itself from being emasculated or rendered impotent. Some of these regulatory powers derive from the court’s inherent power to control its own proceedings, which originated from common law, or the very nature of its functions, not necessarily from statute, such as the power to punish summarily for contempt. In our view, if a court refuses an adjournment and the prosecution is unable to proceed for certain reasons a court does not have to, in terms of Mr. Lakha’s picturesque phrase, ‘eat its words’, or rescind its order at the ‘whim’ of the prosecutor. That would be intolerable and would place a court at the mercy of lazy, inefficient or uncooperative prosecutors and hold the administration of justice up to ridicule and contempt. We believe that a court can, in such circumstances of emergency, clothed as it is with inherent power to control its own proceeding, dismiss the charge and discharge the accused, despite the lack of any statutory provision to the effect. We think that such a discharge and dismissal would be sufficient exercise of the court’s inherent power to regulate its own proceedings; and that an order of acquittal, unless in the most exceptional circumstances, is unnecessary and unsuitable for that purpose. An order made by a court in the exercise of its inherent power must be fair and reasonable, and in exercising it a court must look at a matter realistically, and keep in view and in balance the rights of an accused person and the duty of the prosecution to bring miscreants to justice. Since the days of Martin Nguma’s case, the Criminal Procedure Code has undergone major amendments on this point. The term “complainant” has now statutorily been defined in section 2 of the Criminal Procedure Act, and the inherent power of the court to adjourn or not adjourn court proceedings has, as it were, been reinforced by the provisions of section 225 of the Act as described hereinafter. The power to adjourn or refuse adjournment has been strengthened by what is loosely referred to as “The Sixty Days Rule”. Subsection (2) of section 225 of the Act provides that notwithstanding the provisions of subsection (1) of the section, no adjournment should be granted for more than 30 clear days or, if the accused has been committed to prison, for more than 15 days. Subsection (4) of the section provides that except for cases under sections 39, 40, 41, 43, 45, 48 (a) and 59 of the Penal Code or offences involving fraud, conspiracy to defraud or forgery, it is not lawful for a court to adjourn a case

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in respect of offences specified in the First Schedule to the Criminal Procedure Act under the provisions of subsection (1) of the section for an aggregate exceeding 60 days. However, on a certificate of a Regional Crime Officer stating the need and grounds for adjourning the case, the court may adjourn the case for a further period not exceeding, in aggregate, 60 days (see s. 225 (4) (a) CPA). If need should arise thereafter for further adjourning the case, the court may adjourn the case for a further period not exceeding in aggregate, 60 days if a state attorney files a certificate stating the need and grounds for adjourning the case (see s. 225 (4) (b) CPA). If yet another adjournment is sought, the court will adjourn the case for a further period, not exceeding 24 months since the date of adjournment made under section 225 (1) of the Act and only if the Director of Public Prosecutions or a person authorised by him in that behalf files a certificate stating the need and grounds for a further adjournment (see s. 225(4) (c) CPA). In the event that no certificate is filed under the foregoing provisions, the court must proceed to hear the case or, where the prosecution is unable to proceed with the hearing, the court may discharge the accused. In the case of DPP v. Fonja Mathayo, (1995) TLR 23, however, the Court of Appeal held that a breach of the provisions of section 225(4) and (5) does not necessarily vitiate the trial unless it is shown that the accused person has been prejudiced in his defence or that the adjournments did affect the substance of the conduct of the retrial (see also Ibrahim Hassan and Another v. Republic, (1991) TLR 106; and Republic v. Subira Saidi Abdallah, (1991) TLR 121). However, the accused may be charged again for the same offence on the same facts. In other words, such discharge does not amount to an acquittal. These provisions, which were introduced into the Criminal Procedure Act by Act No. 5 of 1985, appear to be in line with the decision of the Court of Appeal for East Africa in Martin Nguma’s case (supra). These provisions, it should be noted, do not apply to proceedings in a subordinate court in relation to any offence triable only by the High Court under the Economic and Organized Crime Control Act, Cap. 200 RE 2002 (see s. 225 (6) CPA). It is further provided that if at the time to which the hearing or further hearing has been adjourned, the accused person does not appear before the court, the court may proceed with the hearing or further hearing as if the accused were present; and if the complainant does not appear, the court may dismiss the charge and acquit the accused, with or without costs as the court may think fit (see s. 226 (1) CPA). In the event that the accused is convicted under the foregoing provisions, such conviction may be set aside if the court should be of the view that his ab-

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sence was from causes over which he had no control and that he had a probable defence on the merits. The court has the further discretion of refraining from convicting the accused and may instead issue a warrant of arrest against the accused person (see s. 226 (2) CPA). The provisions of sections 225 and 226 of the Criminal Procedure Act were aimed at prompting investigators and public prosecutors to be punctilious and expeditious in the discharge of their duties so that undue delays in the disposal of cases can be avoided. It is for these reasons that a public prosecutor is exalted to work closely with his investigators.

Power to award costs and compensation A judge or magistrate can lawfully order any person convicted before him of an offence to pay to the public or private prosecutor, as the case may be, such reasonable costs as to such judge or magistrate may seem fit, in addition to any other penalty he has imposed. In the case of a subordinate court, however, such costs must not exceed 2000 shillings. It is equally lawful for a magistrate who acquits or discharges a person accused of an offence, if the prosecution for such offence was originally instituted on a summons or warrant issued by the court on application of a private prosecutor, to order such private prosecutor to pay the accused such costs, but such costs must not exceed 1,000 shillings. Such an order, however, will only be made if the court considers that the prosecutor had no reasonable grounds for making the complaint (see s. 345 CPA). In addition to costs, where a magistrate is of the opinion that the charge which has resulted in an acquittal was frivolous or vexatious, he may order the complainant to pay to the accused person a reasonable sum as compensation for the trouble and expense to which the accused person has been put as a result of the frivolous or vexatious charge or complaint in addition to his costs (see s. 347 CPA). Further, a magistrate has power to order an accused person to pay compensation to the complainant (see s. 348 CPA). It should be noted, however, that the court must assess the amount of such compensation from evidence available establishing the loss or damage caused. The case of Rex v. Kaserikali bin Isabosi, TLR (R) 100 makes this point very clear. In that case the accused was convicted of the offence of arson and was sentenced to 2 years imprisonment. Besides, the court ordered the accused to pay compensation, but there was no evidence as to the extent of the damage caused. In M ahon, J .) said, at page 101: revisional order, the High Court (M

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I do not think that the order for compensation can be upheld. The Magistrate’s motive in making it is obviously to compensate Nyaringo binti Mahende for the loss of her house and property but according to the record there was no evidence as to the extent of the fire, the property destroyed by it, the value of the house or the value of the other property which was, apparently, burnt. Proof of these matters is required unless the accused admits them before an order for compensation can be made. (See also Republic v. Joseph Anselm, (1977) HCD n. 20.) A public prosecutor, therefore, should endeavour to adduce evidence showing, in such cases, the extent of the damage or injury caused as a result of committing the given offence.

C. Control of proceedings by the republic Discontinuation of proceedings in court Although normally a court must hear and finally decide a case which is brought before it, by the nature of things, the State exercises some control over criminal proceedings before the courts in some cases. In this regard, the Director of Public Prosecutions is empowered to do the following: 1. to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed by that person; 2. to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; 3. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority (see s. 91 CPA). The Director of Public Prosecutions is further empowered to enter a nolle prosequi either by stating in court or by informing the court in writing on behalf of the Republic that the proceedings should not continue. Once a nolle prosequi has been entered, the court must discharge the accused. But such discharge is no bar to any subsequent proceedings against such accused person on account of the same facts (see s. 91 CPA).

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The exercise of these powers by the Director of Public Prosecutions cannot be questioned by any court. Indeed, he need not give any reasons for his decision The Director of Public Prosecutions has power also, in case of proceedings commenced in a subordinate court, to discontinue those proceedings and order that the case be tried by the High Court. In such a case, the subordinate court must proceed to conduct committal proceedings even though such subordinate court has the jurisdiction to try the offence in question.

Right of appeal against acquittals, sentences or orders Where the Director of Public Prosecutions is dissatisfied with any acquittal, finding, sentence or order made or passed by a subordinate court other than a subordinate court exercising extended jurisdiction by virtue of an order made under section 173 of the Criminal Procedure Act, he may appeal to the High Court. An appeal to the High Court under these provisions may be on a matter of fact as well as on a matter of law (see s. 378 CPA). It should be noted, however, that no such appeal will be entertained unless the Director of Public Prosecutions has given a notice of his intention to appeal to the subordinate court within 30 days of the acquittal, finding, sentence or order against which he intends to appeal, and the petition of appeal lodged within 45 days from the date of such acquittal, finding, sentence or order. But in computing such period of 45 days, the time requisite for obtaining a copy of judgment, or order sought to be appealed against must be excluded. Besides, the High Court, may, for good cause, admit an appeal notwithstanding that the same has been preferred after the periods of limitation have expired (see s. 379 CPA). Section 377 of the Criminal Procedure Act defines “Director of Public Prosecutions” as including any officer subordinate to the Director of Public Prosecutions acting in accordance with his general or special instructions, and “respondent” is defined in the same section as meaning the person who was the accused in the proceedings to which the appeal under section 378 relates and who may be affected by any order made by the High Court on such appeal. From the foregoing, it should be obvious that the eyes of the Director of Public Prosecutions are his state attorneys and public prosecutors throughout the country. So where a public prosecutor is dissatisfied with any acquittal, finding, sentence or order of a subordinate court made or passed by a subordinate court other that a subordinate court exercising extended powers, such public prosecutor should as soon as possible, at any rate within 30 days,

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notify such court that the Republic is so dissatisfied and that it intends to prefer an appeal in the matter. He should then ask for a certified copy of the judgment, finding, sentence or order sought to be appealed against and, if necessary, a certified copy of the proceedings. Having obtained these documents, he should forward them to his superiors who will in turn forward them to the Director of Public Prosecutions for his opinion and decision as to whether or not the intended appeal has any merits. If the Director of Public Prosecutions should find that it has merits, he will file an appeal. It is emphasised that no time should be wasted in any of these steps. Although the High Court has power to admit an appeal filed out of time, it will only do so for good cause. It will not admit such an appeal where there has been inordinate delay in filing the same. In the case of Republic v. Paul Haule, (High Court at Dodoma Miscellaneous Criminal Cause No. 14 of 1975 – unreported), the Director of Public Prosecutions filed an application for leave to appeal against an acquittal of the respondent out of time. The application was made after over twenty months from the date of the acquittal. The reason for the delay was stated as failure of the public prosecutor to give notice of appeal within the prescribed period owing to ignorance on the part of the public prosecutor. The High Court held that there was no sufficient reason why the public prosecutor should not have given notice of intention to appeal on the very day or within 30 days from the date of the acquittal if the prosecuM nzavas, J , tion was aggrieved by the order of acquittal. The High Court (M as he then was) stated: This Court would, in my view, be setting a dangerous precedent if it is to allow the Republic to appeal out of time on the ground that the public prosecutor failed to give notice of intention to appeal because of his ignorance of the law. His Lordship went on: It is over 20 months since the acquittal of the respondent who has since forgotten what had happened about him. It would be totally unjust to the respondent for this Court to revive the matter over 20 months after his acquittal on the ground that an incompetent public prosecutor had failed to give notice of intention to appeal. Incompetence on the part of the prosecution to give notice of intention to appeal cannot (by any stretch of imagination) be said to constitute good cause for the Director of Public Prosecutions’ dilatoriness in filing an appeal out of time.

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The application was refused. This case underscores the fact that the administration of justice cannot afford incompetence or ignorance of the law on the part of public prosecutors. An incompetent or ignorant public prosecutor is not only an embarrassment but an enemy to the administration of justice. That said, one word of caution: a public prosecutor should not file a notice of intention to appeal unless he/she is satisfied that the magistrate’s acquittal, finding or sentence is against the weight of the evidence, or is contrary to law or has otherwise resulted in a failure of justice. Experience has shown that some public prosecutors make a habit of applying for copies of judgments in almost every acquittal “for appeal purposes” even where there is absolutely no ground for appeal. This results in a waste of time and money on the part of those who have to prepare such documents. It is well to point out here that apart from the right of appeal to the High Court from decisions of subordinate courts, the Director of Public Prosecutions may appeal to the Court of Appeal where he is dissatisfied with any acquittal, finding, sentence or order made or passed by the High Court or a subordinate court exercising extended jurisdiction (see s. 6 of the Appellate Jurisdiction Act, Cap. 141 RE 2002).

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Chapter 3

FORMULATION OF CHARGES OR COMPLAINTS Although a magistrate has the duty to see that the charge is correct, the responsibility for the correctness of a charge is that of the public prosecutor. It is, therefore, the public prosecutor’s duty to satisfy himself that the charge he is about to file in court is correct and that the court in which it is to be filed has jurisdiction to try the offence or inquire into it; and that other requirements, such as consent of the Director of Public Prosecutions in some cases, have been complied with.

The purpose of a charge The purpose of a charge is to inform the accused person and the court, with sufficient clarity, the allegations against the accused person. The accused person must know what he is up against before hand so that he is not taken by surprise. This enables him to prepare his defence. Besides, a charge also enables the court to control the proceedings and confine evidence and arguments only to what is in dispute. As a rule, charges must be reduced into writing.

Formulation of charges The formulation of charges is an important part of a public prosecutor’s duties; and no public prosecutor should be forgiven for his ignorance in formulating charges. A charge has three parts: the first gives the name, age, address and tribe or nationality of the accused person(s); the second contains the statement of the offence and a citation of the section of the law alleged to have been contravened; and the third part contains particulars of the alleged offence. “Particulars” here means a brief but clear statement of the acts or omissions alleged to have been done or omitted to be done by the accused person. So the particulars should contain the date, time and place the alleged offence was committed, the act or omission complained of, the name

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of the victim, if any, the property involved, if applicable, and its value, etc. (see s. 132 CPA). Here is a specimen: Name of accused: Age: Tribe/Nationality: Religion: Address: Offence, section and law: Particulars of offence:

Juma s/o Dudu 26 years Ngoni, Tanzanian Moslem House No. 10, Majengo, Dodoma Robbery contrary to sections 285 and 286 of the Penal Code Juma s/o Dudu on or about 20th of June, 1976 at about 4 p.m. at Majengo, within the city of Dodoma, Dodoma Region, did steal a brief-case valued at 5,000 shillings, the property of Issa Sumu, and at, or immediately before or after such stealing did use personal violence to the said Issa Sumu in order to steal or retain the said property. Sgd, John Joseph. PUBLIC PROSECUTOR

Central Police Station DODOMA Date: 3rd July, 1976 It will be noted in the above specimen that the accused will be under no illusion as to who is charged, in respect of what, at what time and place, of what offence and under what law he stands charged. Equally he will be under no illusion as to what the police say he did and to whom. From the information about the date of commission of the crime, the accused may wish to put up a defence of alibi; and from the information about the place in which the offence was allegedly committed, the court will be able to know whether or not it has jurisdiction to try or inquire into the matter. The description of dates and place where the offence was allegedly committed must, therefore, be specified clearly. Where a public prosecutor is in doubt as to the form of the charge, he should refer to the Second Schedule to the Criminal Procedure Act, Cap. 20 RE 2002. This gives a guide as to how to formulate charges for various

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offences. The exact words need not be used. You can use different words within a given specimen.

Joinder of counts in a charge or information Sometimes an accused person may commit several offences in the course of the same transaction. In such an event, each specific and distinct offence must form a separate count and all such offences can be joined in a single charge or information and tried together. For instance, if a person breaks into a dwelling house with intent to commit an offence or offences, and having broken into the house, he steals a radio and rapes a woman in the same house and runs away, he has committed three distinct offences in the course of the same transaction. In such a case the charge may contain three distinct counts for house-breaking, stealing and rape. This is called joinder of counts (see s. 133(1) CPA). The principle to remember with joinder of counts is that the offences charged must be founded on the same facts or form or be part of a series of the same facts of or a similar character (see s. 133(1) CPA). The case of Jetha v. Republic, 13 EACA 107 is a good example. In that case, the facts were that on 27/6/45 the accused allegedly obtained goods by false pretences. On 8/7/45, he made a false report that his house had been burgled. He was charged in the same charge with the offences of obtaining goods by false pretences and giving false information. It was held that since some 10 days had elapsed between the commissions of the two offences, it was at least doubtful whether the charge in respect of the false report could be said to be founded on the same facts and that it might more properly have been made the subject of a separate trial (see also Mutia v. Republic, (1958) EA 471; and Elias v. Republic, (1972) HCD n. 111). It should be borne in mind also that each count must contain the statement of offence and particulars thereof (see Mwaitige v. Republic, (1961) EA 470; and s. 133(2) CPA). Even where there has been no misjoinder, at any time before or in the course of the trial, the court may order that the person be tried separately for any one or more counts charged in a charge sheet or information if, in the opinion of the court, the accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information (see s. 133(3) CPA).

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Duplicity Duplicity is where the charge as laid contains two distinct offences but preferred as one count. In such a situation, the charge is said to be double or duplex or bad for duplicity. Normally where a charge is bad for duplicity it will be fatal to a conviction based on it. But whether it is fatal or not will depend on the circumstances of the given case. In the case of Cherere s/o Gukuli v. Republic, 22 EACA 478, the Court reviewed the cases on the effect of duplicity of charges, that is, whether a conviction pursuant to a charge which is duplex must necessarily be set aside or whether it could be cured where no prejudice has resulted. The Court stated, at page 482: . . . the test which we must apply to answer the question what has been the effect of the defect in the charge on the trial and conviction of the appellant, must be whether there has in fact been a failure of justice. The Court added, at page 483: In Odda Tore’s case this Court said ‘unless this court is able to say without hesitation that the accused has not been prejudiced by the duplicity there will be no other course open to it than to quash the conviction’. We think it is impossible to say, and certainly no court has so far as we are aware ever yet said, that an accused person is not prejudiced when offences are charged in one count in the alternative; he does not know precisely with what he is charged, nor of what offence he has been convicted. It is, indeed, very difficult to say that a breach of an elementary principle of criminal procedure has not occasioned a failure of justice. In the case of Laban Koti v. Republic, (1962) EA 439, the Kenya Supreme Court referred to the last part on the last cited text in Gukuli’s case and stated, at pages 440–441: This last extract certainly suggests strongly that duplicity in a charge is nearly always a fatal defect but in our view it does not go so far as to state that it is always necessarily fatal. It says that it is very difficult, not that it is always impossible to say, that a breach of the elementary principle of criminal procedure has not occasioned a failure of justice. The test remains as to whether or not a failure of justice has occurred. In

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our opinion the result of the application of this test must depend to some extent upon the circumstances of the case and the nature of the duplicity. (Also see Akber Rashid Nathani v. Republic, (1965) EA 777; and Kauto Ally v. Republic, (1985) TLR 183.) When all is said, a public prosecutor must avoid preferring charges that are duplex, for you can never know what view a higher court will take on duplicity.

Joinder of accused persons Two or more accused persons may be jointly charged in the same charge or information and may be tried together where1. they are accused of the same offence committed in the course of the same transaction; or 2. if they are persons accused of an offence, they may be charged jointly with persons accused of abetment, or of an attempt to commit such offence; or 3. they are accused of different offences committed in the course of the same transaction; or 4. if they are persons accused of such offences as thefts, robbery or extortion, breakings, and false pretences, they may be jointly charged with persons accused of receiving or retaining property, where the possession of such property is alleged to have been transferred by any such offence committed by the former persons, or if the latter abetted or attempted to commit either of the last named offences; or 5. if they are persons accused of any offence relating to counterfeit coin under Chapter XXXVI of the Penal Code and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; or 6. persons accused of any economic offence under the Economic and Organised Crime Control Act (see s. 134(1) CPA). In the event of misjoinder of accused persons, the trial will usually be declared a nullity. In the case of Republic v. Hassan wa Saleh and Another, (1906–1908) 2 EALR 105, it was held that where two persons are charged separately for raping two women separately at about the same time and

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place, they cannot be tried together, and if they are, the proceedings are a nullity. A public prosecutor, therefore, ought to be quite certain that these provisions or any of them are applicable before joining accused persons in the same charge or information.

Amendment of charges It does sometimes occur in the course of a trial that the evidence adduced that far is at variance with the charge, or that the charge is defective either in substance or in form. If it should appear to the court that that is the case, the court may make such order for the alteration of the charge or substitution of another charge as it may think necessary to meet the circumstances of the case. If, however, the amendment or substitution cannot be made without causing injustice, then such amendment ought not to be made (see s. 134 CPA). When such amendment or substitution has been made, the amended or substituted charge must be read over and explained to the accused person who must be asked to plead thereto. When that has been done, the accused person must be given an opportunity to have any of the witnesses who have already given evidence recalled to give evidence afresh or be further cross-examined by the accused or his advocate if he so wishes. If they are recalled for cross-examination, then the prosecution will have the right to re-examine any such witnesses on matters arising out of such further cross-examination (see s. 234 CPA and William Sebugenyi v. Republic, (1959) EA 411). An example of a case in which a proper amendment or substitution of a charge can be made is where the charge alleges an offence but the evidence reveals another but lesser and related offence. In a case, for instance, where the charge is rape, but the evidence tends to show that it was merely attempted rape, then a substitution of attempted rape would be proper. If the court does not notice the variance between the charge and the evidence as the trial progresses, it is the duty of the public prosecutor to make an application to the court to amend the charge or substitute a fresh one. It should be noted that the amendment or substitution must be made at any stage of a trial and not when the trial has been completed. The case of Republic v. Salehe Ruhuna, (1973) LRT n. 83, illustrates the point. In that case the facts were that the accused was stopped by a policeman who was on duty at the gate to the port area in Dar es Salaam, and was found wearing a pair of trousers which were reasonably suspected to have been stolen, as there had

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been thefts of such items of clothing from some ships berthed in the harbour. As the accused failed to give an explanation, he was charged with conveying property reasonably suspected to have been stolen under section 312 of the Penal Code. It was not until after the trial had been completed that the trial magistrate realized that the accused ought to have been charged under s. 312(1)(a) or (b) of the Penal Code because section 312 of the Penal Code had by then been repealed and replaced. The learned trial magistrate proceeded to convict the accused person under the new provisions. When the matter was referred to the High Court, the Court (Biron, J.) said, at page 369: The District Court is a creation of statute and has no inherent powers, but only those powers expressly conferred on it by law. The only provision which enables a District Court to amend a charge is section 209 of the Criminal Procedure Code (now s. 234 CPA). His Lordship quoted that section and continued: As will be noted, the section commences with ‘where at any stage of a trial’. . . etc., which means what it says, that at any stage of a trial a court may, in certain circumstances amend the charge, but not when a trial has been completed, as it was in this case. Further the first proviso expressly states, ‘Where a charge is altered as aforesaid the court shall call upon the accused to plead to the altered charge.’ That is mandatory, and a court could hardly call upon the accused to plead to an amended charge after the completion of the trial. And there is a further proviso, that the accused may demand the recall of any witness who has given evidence, which he could hardly do after the completion of the trial. To be on the safe side, therefore, a public prosecutor must be certain that before closing the prosecution’s case, the charge is not at variance with the evidence adduced. If the charge and the evidence are at variance an application for amendment or substitution should be made before closing the prosecution’s case.

Alternative counts Where the facts of a case appear to show that one of two distinct offences were committed, and the public prosecutor is not sure as to which one of the two offences he should prefer a charge on, it is advisable to prefer the

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charges in the alternative. In other words, one count will allege the commission of one offence and below it add: “In the alternative” and then set out another count alleging the commission of a different offence. One more point: if an accused person is charged on two counts in the alternative, then, on conviction of the accused on one count, the court must not enter any verdict or finding on the other count (see Seifu s/o Bakari v. Republic, (1960) EA 338).

Chapter 4

THE ACCUSED AND HIS PLEA Taking a plea When the charge has been filed in a court of competent jurisdiction to try the offence charged, and the accused person appears before such court in answer to a summons or under a warrant of arrest, the court must read over and explain the charge to him in simple terms and in a language which he understands. When the court is satisfied that the accused person has understood the charge(s), the court will ask him to plead thereto; that is, it will ask the accused person whether or not he admits the charge (see s. 228(1) CPA). If the accused denies the charge, that is, if he pleads “not guilty”, the magistrate will enter a plea of “not guilty”. He/she will then ask the public prosecutor if investigations are complete and, if so, whether or not the prosecution is ready to proceed to trial there and then. If the investigations are complete but the witnesses are not present, or if the investigations are incomplete, the court will adjourn the case to another date either for hearing or mention, and will order the accused to be released on bail or will remand him in custody (see ss. 228(3) and 229(1) CPA).

Consequences of failure to take a plea The requirement that an accused person must be present throughout the trial is so as to enable the accused person to know what the accusations against him are and to give him a fair and ample opportunity of contradicting them if he so chooses. It is for this reason that section 228(1) of the Criminal Procedure Act provides that an accused person must plead to the charge when the same has been read over and explained to him. These provisions are mandatory. In an old case of Akbaralli Walimohamed Damji v. Republic, (1954) 2 TLR (R) 137, no plea was taken before the case proceeded to trial. On appeal, Cox, C.J., said, at pages 137–138:

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It has already been decided by this Court that the failure to comply with the provisions of Section 203 (1) is not an omission that can be cured by Section 346 of the Criminal Procedure Code [now respectively sections 228(1) and 388 of the Criminal Procedure Act] and result in the trial being a nullity. . . . There therefore has been no trial or to put it in another way the trial is a nullity. Only a year earlier, in the case of Regina v. Rajabu s/o Ramadhani, 2 TLR (R) 49, a Full Bench of the Court, on somewhat different facts, held the same view but added, at page 51: We must emphasize that where a magistrate has taken a plea and is unable for any reason to try the case and it comes before a different magistrate then the magistrate trying the case must again call upon the accused to plead. These decisions have been followed in many cases by the High Court. For example, it was the case in Republic v. Angelo, (1971) HCD n. 136. But in the case of Republic v. Ally s/o Ramadhani, (1974) LRT n. 7, Mfalira, Ag. J (as he then was) took a somewhat different view. While agreeing that failure to take a plea at all renders a trial a nullity, he added, at page 21: In the final analysis, a distinction has to be made between cases where no plea was taken at all, and those where only the subsequent Magistrate trying the case fails to take afresh the accused’s plea. Cases falling under the former category must be declared null and void as the defect consisting of non-compliance with s. 203 (1) is not curable by S. 346 Criminal Procedure Code. Cases falling under the latter category cannot be regarded to have non-complied with S. 203 (1) but merely with the practice of taking afresh the plea of the accused. Such an omission is curable under section 346 of the Criminal Procedure Code, as the accused having been earlier informed of the substance of the charge(s) against him and having pleaded, it cannot be seriously suggested that failure of justice occurred merely by not having the charge read to him and his plea taken afresh or reminded of such charge and pleas.

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On a plea of “Guilty” It is amazing that a number of public prosecutors are not conversant with the simple procedure to be followed when an accused person pleads guilty to a charge. I will give one example. One day a dutiful police inspector, duly appointed as a public prosecutor, was appearing before me with fresh cases. One of the accused persons was charged with the offence of causing death by dangerous driving, and after the charge was read over and explained to the accused person, the accused person pleaded: “It is true.” I then asked the public prosecutor to narrate the facts. He stood up hastily and said the following: The facts, Your Honour, are very simple. On 24th May, 1974, the accused was driving a lorry along Moshi–Arusha road. At about 15.00 hours the lorry left the road and plunged into a ravine on the accused person’s off-side of the road. The deceased, who was sitting in the back of the lorry died in hospital two days later. That is all, Your Honour. He sat down confidently. When I announced that I was entering a plea of “not guilty”, the public prosecutor was stunned. Obviously he had either not done his homework or did not know the constituents of the offence charged and, what is more, the duty of a public prosecutor in such circumstances. It did not occur to him that the facts he had narrated did not disclose the offence with which the accused person stood charged: the facts narrated alleged nothing that constituted dangerous driving on the part of the accused, such as if he was over-speeding, overtaking at a blind corner or any manner of driving that could have been said to constitute dangerous driving; besides, the cause of death of the deceased, the arrest and identification of the driver were not explained in the facts given by my public prosecutor. He did not even bother to produce the sketch-plan and the post-mortem report or the vehicle examination report – and yet, all these were in his police case file. This is a warning to public prosecutors not to take matters for granted even where the accused person, by his plea, suggests that he is pleading guilty to the charge. Besides, the facts you narrate to the court following a plea ‘it is true’ must establish all the ingredients of the offence charged. To put it differently, when an accused person’s plea indicates that he is pleading guilty to the charge by such words as “It is true”, “That is correct” or

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words to that effect, the facts to be narrated by the public prosecutor must be a summary of the evidence which the witnesses would have given had the accused person denied the charge; and such facts must establish all the constituents of the offence charged. Indeed, in many cases the particulars of the offence stated may not adequately establish all the constituents of the offence. The public prosecutor must narrate all facts establishing the offence. When such facts have been given, and the magistrate is satisfied that the facts do constitute the offence with which the accused stands charged, he will then ask the accused person whether or not he/she admits those facts as correct. Only when the accused admits them as correct will the magistrate proceed to enter a plea of guilty and convict the accused person of the offence charged (see s. 228(4) CPA.; and Samson Kayora and Another v. Republic, (1985) TLR 158). This procedure was made abundantly clear in the case of Yonasani Egalu and Others v. Republic, (9 EACA 65). In that case the Court of Appeal for Eastern Africa stated, at page 67: In any case in which a conviction is likely to proceed on a plea of guilty (in other words, when an admission by the accused is to be allowed to take the place of the otherwise strict proof of the charge beyond reasonable doubt by the prosecution) it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every element of it unequivocally. This procedure was also reiterated by the Court of Appeal for East Africa in the case of Adan v. Republic, (1973) EA 445 in which the Court stated, at page 447: The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded guilty: it is for this reason that it is essential for the statement of facts to precede the conviction (see also Republic v. Waziri s/o Musa, 2 TL R (R) 30; and Republic v. Andrew Massy, (1984) TLR 346).

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So if the accused disputes the facts given or qualifies them in such a way that it amounts to a denial of some elements of the offence charged, the magistrate will enter a plea of “not guilty” to the charge. In such a case, the plea is said to be equivocal (see DPP v. Paul Rueben Makujaa, (1992) TLR 2; and Samson Kayora and Another v. Republic, (1985) TLR 158.). But if the accused disputes some, but immaterial, details of facts but admits all facts establishing the ingredients of the offence, the magistrate may nevertheless take it as a plea of guilty to the charge (see Asumani s/o Mataka v. Republic, (1968) HCD n. 427). If, however, the facts admitted by the accused do not constitute the elements of the offence charged, but they constitute a lesser offence, or an attempt to commit the offence charged, the public prosecutor may accept the facts admitted by the accused and amend the charge accordingly. The fresh charge will then have to be read over and explained to the accused person who should then plead afresh. If he pleads guilty and admits the facts, he may then be convicted of such lesser offence. For what it is worth, it should be pointed out that as a general rule, where a conviction proceeds from a plea of “guilty”, the accused has no right to appeal against such conviction (see Alfani Mlaponi and Another v. Republic, (1990) TLR 104; and Nkya v. Republic, (1989) TLR 59).

Accused standing mute As we have seen, the charge must be read over and explained to the accused in a language which he understands. He is then asked to plead thereto. An accused person, however, may refuse to plead to the charge, or stand mute, or may not answer directly to the charge. In such an event, if the court is satisfied that the accused has understood the charge, it will enter a plea of “not guilty” to the charge and the accused will be treated as having so pleaded (see s. 228(4) CPA). An accused person, however, may stand mute for one of two reasons, namely, out of malice, or through visitation of God. If, therefore, the accused stands mute, the court must hold an inquiry to determine whether the accused is mute of malice or by visitation of God. An accused person is said to be mute through visitation of God if he is deaf and dumb, or is suffering from a disease of the mind, or is so deaf that he cannot hear when the charge is read over to him/her. Such an accused person can, if sane, be tried if he can read or write, or if intelligence can be conveyed to him by signs or symbols. But if an accused person is mute of malice, the court will proceed to try the case.

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The case of Wachira s/o Murage and Others v. Republic, 23 EACA 562 is a good illustration on muteness of malice. In that case, the accused, who was represented, refused to plead and behaved as if he was suffering from some disease of the mind. He was referred to a psychiatrist who, however, found him to be sane and merely pretending to be mad. The accused continued to make such a disturbance that it was not possible for the trial to proceed if he were present. The court entered a plea of not guilty, removed the accused, and most of the trial took place in his absence. He was then brought in to give him a chance of making his defence and to be informed of the effect of the judgment and to be sentenced. On appeal, it was held that the procedure that was followed was strictly correct.

Pleas of autrefois acquit and autrefois convict It is a statutory rule that a person should not be punished twice for the same offence. So, if a person has been previously tried and convicted or acquitted of an offence, he cannot be tried for the same offence arising out of the same facts, unless a superior court has reversed the first trial and ordered re-trial. If an accused person pleads this defence, the court will proceed to try this issue to determine whether the plea is true or not. If after such trial the court holds that the evidence adduced in support of such plea does not sustain the plea, or if it finds that such plea is false in fact, the court will require the accused to plead to the charge. If the court finds that the plea is true in fact, it should dismiss the charge and discharge the accused (see s. 228(5) CPA). An accused person, however, can only succeed on such a plea if the charge to which he pleads is one in respect of which he could have been legally convicted on the prior occasion or is one in respect of which, by statute, previous proceedings for the same cause are a bar to subsequent proceedings. So a conviction for assault is a bar to a subsequent charge of unlawful wounding based on the same facts, and an acquittal on a charge of murder is a bar to subsequent charge of manslaughter in respect of the same transaction etc. (see Halsbury’s Laws of England, Vol. 10 Para 738, 3rd Edition). But if a person assaults another and is then charged and convicted of assault causing actual bodily harm, and the victim dies after such conviction, such conviction is no bar to a subsequent charge of murder in respect of that assault (see Republic v. Thomas, (1949) 2 All ER 662).

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To sum up, as was held in Republic v. Absolom Mohanga and Another, (1957) EA 660, a plea of autrefois convict (or acquit) can only be pleaded effectively where the conviction was for the exact offence subsequently charged, or the subsequent charge is based on the same facts as those in respect of which the previous conviction was made, and some statute directs that a person shall not be punished twice in respect of the same acts or omissions.

Change of plea When an accused person pleads guilty to a charge, a magistrate has the discretion to allow him/her to change it to one of not guilty provided that such change of plea is sought to be made at any stage of the trial before sentence is passed or before a final order disposing of the case is made. The leading authority on this point, it would seem, is the case of Kamundi v. Republic, (1973) EA 540. The facts in that case were that the appellant and others were convicted of robbery with violence on their purported pleas of guilty. After entering convictions, the magistrate adjourned the case to another date to allow the prosecution to produce criminal records of the accused persons. On resumption of the trial, the appellant was represented by an advocate who submitted that the pleas of guilty were ambiguous. The magistrate ruled that the pleas were unequivocal and that the court had no power to quash its own conviction. So the submission was rejected. On a second appeal, it was submitted that a magistrate should be able to alter a plea of guilty at any stage before pronouncing sentence. After considering several English and East African decisions, among them the Court’s own decisions in Maumba v. Republic, (1966) EA 167; and Joseph Mugola v. Republic, 20 EACA 171, the Court held that a trial court cannot accept a change of plea once it has entered a conviction and passed sentence because such court becomes funcutus officio. The Court went on to hold that a court is not functus officio until it has made an order finally disposing of the matter. In other words, a trial court may allow an accused person to change his plea of guilty to one of not guilty at any time before sentence is passed. As the Court stated, at page 545: The whole purpose and intention of the Criminal Procedure Code is to lay down provisions and procedure to see that justice is done, and justice cannot be effected if a plea of guilty is entered as the result of ignorance or misunderstanding. The court must have a judicial discre-

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tion to allow a change of plea before it has finally disposed of the case. It is common practice to allow the accused person during the course of trial to change his plea of not guilty to one of guilty. A further question arises, when does a magistrate’s court become functus officio and we agree with the reasoning in Manchester City Recorder case that this can only be when the court disposes of a case by a verdict of not guilty or by passing sentence or making some order finally disposing of the case. Apart from overruling its own decision in Maumba’s case (supra), Kamundi’s case would also appear to have overruled the decision in the case of Kinyua v. Republic, (1973) EA 201 (see also Mwakera v. Republic, (1972) EA 366). Conversely, and as stated in Kamundi’s case (supra), an accused person may, at any time in the course of the trial, change his plea from one of not guilty to one of guilty at any time before judgment is pronounced. In such an event, and if the change of plea is made when the substance of the prosecution’s case has already been given in evidence and such evidence establishes a prima facie case, the court should sum up such evidence to the accused person and ask him if he admits that evidence or the facts so summed up. If he does, a plea of guilty will then be entered and a conviction recorded and pronounced. If the change of plea to one of guilty is sought earlier, the public prosecutor will be called upon to narrate the facts as usual.

Procedure in case of insanity or incapacity of an accused person If in the course of a trial the court has reason to believe that the accused person is of unsound mind and so incapable of making his defence, the court will ask the public prosecutor to adduce evidence in support of the charge before inquiring into the question of such unsoundness of mind even if the accused person has not pleaded to the charge (see s. 216 (1) CPA). When at the close of the prosecution’s case the court is of the opinion that the case is not made out, that is, if the evidence does not disclose the offence charged, the court will dismiss the charge and acquit the accused. Thereafter the court may proceed to deal with the accused person under the Mental Diseases Act, Cap. 98 (see s. 216 (2) CPA). If, however, the case is made out, the court will record that a case has been made out, and will proceed to inquire into the question of unsoundness of mind of the accused. For this purpose, the court may order that the

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accused be detained in a mental hospital for medical examination. If thought fit, the court may release him on bail on condition that he submits himself to a medical examination or observation by a medical officer as may be directed by the court (see s. 216 (3) CPA). Where an order has been made requiring the accused to be detained in a mental hospital, the court must draw up a formal order to be served on the medical officer in-charge of the mental hospital in which the accused is to be detained. The order will require such medical officer to examine or observe the accused as to his state of mind, and will require the said medical officer to submit his report within 42 days from the date of the detention or submission of the accused (see s. 216 ($) CPA). On receipt of the medical officer’s report, the court will resume the inquiry into the unsoundness of mind of the accused person, and for this purpose may admit in evidence such written report duly signed by the medical officer. If from the medical report and such other evidence as it may receive, for example, from friends or relatives of the accused person, the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it will record a finding to that effect, postpone the proceedings, order the accused to be detained in safe custody as a criminal lunatic in such place and manner as it may think fit (usually in a mental institution) until released or otherwise dealt with as provided under sections 217 and 218 of the Criminal Procedure Act (see s. 216(5) and (6) CPA). If the accused so detained is subsequently found by the medical officer to have recovered his soundness of mind sufficiently to be capable of making his defence, then the medical officer should state whether, in his opinion, the accused would be fit for unconditional discharge from detention were it not for the charge against him, the medical officer must send to the relevant court a certificate to that effect and a certified copy of that report sent to the Director of Public Prosecutions (see s. 217 CPA). On receipt of the report, the Director of Public Prosecutions will inform the relevant court, within 14 days from receipt of the report, whether the Republic intends to continue the proceedings against the accused. If the Republic so intends, the court will cause the accused to be brought before it and hear the case de novo or it may treat the case as partly heard. If, however, the Director of Public Prosecutions states that the Republic does not intend to continue proceedings against the accused, then, if it is certified that the accused is fit for unconditional discharge, discharge the accused; and in other cases, the court may record the fact that the proceedings have been dis-

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continued, discharge the accused of the charge and immediately proceed to deal with the accused under the Mental Diseases Act.

Chapter 5

BAIL PENDING TRIAL General observations In the majority of cases accused persons do not plead guilty to the charges and very often such cases do not proceed to trial and final disposal immediately, either because investigations have not been completed, or witnesses were not summoned or because of pressure of work on the part of the magistrate, or for other reasons. In such cases the court will adjourn the case to some other date and then remand the accused in custody or release him on bail.

The purpose of granting bail or remanding an accused person in custody The purpose of remanding an accused person in custody is to ensure that he will appear to take his trial and not seek to evade justice by leaving the jurisdiction o the court (see Jaffer v. Republic, (1972) HCD n. 92). Remanding an accused person in custody means the curtailment of his/her personal liberty even before he/she is found guilty. In a majority of cases, such a course is considered to be undesirable, and so the courts are empowered to give temporary release from custody while ensuring that he/she will appear to take his/her trial on the date to be fixed by the court, that is, by granting accused persons bail. This is desirable not only as a practical expression of the saying that a man is presumed innocent until proved guilty and that no innocent man be punished, but also as a matter of practical convenience, for if every person charged with a criminal offence were to be remanded in custody, our already crowded jails could not cope with the situation and the financial burden on jails would be intolerable.

How to grant bail Where it has been decided by the court to grant bail to an accused person, the accused is usually required to execute a bond, that is, he is required to sign a document which states that should he/she fail to appear before the

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court on the date fixed, he will forfeit a certain sum set by the court. In addition to his own bond, the accused may, and usually is, required to furnish sureties, that is, people who execute bonds which state that they will forfeit the sum stated in their bonds if the accused fails to turn up on the day fixed (see s. 148(1) CPA). In addition to provisions for furnishing security by way of entering into recognizances, the court has power to attach other conditions to the grant of bail. Such conditions may be confining the accused person to certain areas or within the immediate environs of a certain town (see Abdallah Nassor v. Republic, 1 TLR (R) 289); or require the accused to surrender his travel documents, or require the accused to report to police at regular intervals. In other cases, the court may require the accused to deposit cash. But such sum is refundable when the case is finally disposed of. However, the amount of bail must be fixed with due regard to circumstances of each case and must not be excessive. In this regard, the High Court has power to order that the bail required by a subordinate court be reduced (see s. 148(2) and (3) CPA).

Granting or refusing to grant bail To some public prosecutors magistrates grant or refuse to grant bail mechanically, indiscriminately, or with resigned indifference or at the magistrate’s whim. That may be the case where you have an incompetent magistrate; but it ought not to be so. The decision whether or not to remand an accused person in custody is a very weighty matter because it involves the personal liberty of a person who, for all that the court knows, may be quite innocent. Therefore, the decision to grant bail or refuse it must not be made mechanically or capriciously. Since an accused person is deemed innocent until proved guilty, any decision to curtail an accused person’s personal liberty either before or during his trial must only be taken after due and careful consideration of all the circumstances of the case and those attendant to the accused. The sceptical attitude of some prosecutors in this matter is, perhaps, understandable. They happen to know something about their cases and, sometimes, about the accused persons. The magistrate, on the other hand, knows little or nothing more than what is contained in the charge and what the accused person looks like. Sometimes, however, these attitudes are as a result of ignorance of the principles of law which guide, or ought to guide, magistrates and their public prosecutors when dealing with questions of bail.

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The test for refusing or granting bail applications, it has been held, is: whether the granting of the application will be detrimental to the interests of justice and good order . . . But such detriment must be satisfactorily substantiated by solid reasons and not based on vague fears or apprehensions or suspicions. And bail should not be lightly refused (see Nassor’s case – supra, at page 293). This principle has been reiterated on a number of occasions. The real difficulty for public prosecutors, and magistrates alike, is to determine what constitutes “detriment to justice and good order” and how such detriment can be “satisfactorily substantiated”. From the authorities, the following appear to be guides, namely, whether the accused person will be available to take his trial if released on bail; whether he is likely to tamper with the investigations or witnesses; whether he is likely to commit other crimes if released on bail; whether his release on bail would adversely affect public peace an good order; and whether the accused person’s own safety would be in danger if released on bail or remanded in custody. Let us now look at each of the foregoing more closely.

Will the accused be available to take his trial? The primary reason for remanding an accused in custody, we have seen, is to ensure that he will be there to take his trial and not seek to evade justice by leaving the jurisdiction of the court. So, in considering whether or not to release an accused person on bail, the court should consider whether the accused will be there to take his trial or abscond and so defeat the interests of justice. In answering this question, what should be taken into consideration, among other things, are: the seriousness of the offence with which the accused is charged and the severity of the sentence if found guilty. In the case of Republic v. Kassam, (1971) HCD n. 315, the accused was charged with stealing Shs. 91, 638/10 (considered to be a lot of money by then). In refusing the application for bail, the High Court observed: A person in a position of the applicant faced with such a serious charge of allegedly stealing Shs. 91, 638/10 which may even grow larger as investigations progress will be greatly tempted to abscond and therefore evade justice.

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(See also Mwita s/o Mwita v. Republic, (1971) HCD n. 122). There are other considerations to be taken into account in considering whether, if granted bail, the accused would be available to take his trial. In the case of Asoka v. Republic, (1971) HCD n. 192, the High Court refused to grant bail to the applicant having taken into consideration the seriousness of the charge (it was a charge of stealing Shs. 2,500,000/-), the fact that he was not a national of Tanzania (he was a Kenyan), and the fact that he had substantial businesses in Uganda. In those circumstances it was felt that it would have been unsafe, and indeed most unrealistic and detrimental to the interests of justice to release him on bail. In Nassor’s case (supra), the court refused to accede to the prosecution’s objection to bail based on the ground, inter alia, that the offence was a serious one. The court’s refusal, however, was based on the ground that there was no evidence before the court of the strength of the evidence against the accused on the charge of assault which, the court noted, was only a misdemeanour. Other relevant considerations include whether the accused has a fixed abode; whether he has visible means of livelihood; and whether he has reliable sureties. If he lacks all or any of these, then the court will be justified to deny him bail.

Is he likely to tamper with investigations and witnesses? Another way by which the granting of bail to an accused person can be detrimental to the interests of justice is where the accused would tamper with investigations or interfere with witnesses. The court, therefore, must consider this question, and if there is evidence that the accused would do so if granted bail, then the court would consider refusing to grant him bail. However, the allegations of tampering or attempted tampering must be substantiated. In the case of Bhagwanji Kakubhai v. Republic, 1 TLR (R) 143, the court held that any vague fear or suspicion by police that an accused person might tamper with witnesses and thereby obstruct the course of justice would not be sufficient to justify refusal of bail. The Court added, at page 144: . . . there should be a definite allegation of tampering or attempted tampering with witnesses supported by proved or admitted facts showing reasonable cause for the belief that such interference with the course of justice was likely to occur if the accused was released. The

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fact that tampering had already been attempted would of course be relevant, but need not be decisive. The Court concluded: The primary objective of remanding a man in custody is to ensure that he will be there to take his trial, and it is certainly no part of our system of justice to keep a man in gaol because, to put it colloquially, the police do not like the look of his face. There must be some more substantial objection than that to his being at liberty.

Is he likely to commit other offences if released on bail? In spite of all society’s hopes and our efficient police and prison officers, it must be conceded that there are some human beings who cannot help committing offences, either because they have an incurable instinct to commit offences and committing offences has become second nature to them, or they are driven to committing crimes because circumstances drive them into doing so. One question that a court should ask itself in appropriate cases, therefore, is whether, if released on bail, the accused would probably commit other or similar offences. In the case of John Mswani and Others v. Republic, (1970) HCD n. 50, for example, the Court refused bail on the ground that there was evidence indicating that the applicants might have committed an offence while on bail for another. The Court stated: There is evidence indicating that the applicants may have committed an offence while on bail for another. This appears to me to be a good reason for refusing bail unless there are circumstances which would make it inequitable to do so. (See also Jonathan Mwaniki v. Republic, (1970) HCD n.177.)

Would it adversely affect public peace and good order? There are cases in which the release of an accused person on bail could compromise public peace and good order. In Nassor’s case (supra), this allegation was made. The prosecution resisted an application for bail on a charge of assault on the ground, inter alia, that if the accused were released on bail there

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would be unrest or further breach of the peace among the Somalis and Baluchis in Nzega District. Although the Court did not refuse bail stating that it thought law enforcement authorities could cope with such a situation if it arose, it nevertheless took heed of the allegation, for one of the conditions it attached to the bail was that the accused should remain in Tabora and its immediate environs until it became necessary for him to go to Nzega to take his trial.

Would the accused person’s own safety be in danger? Objection on this ground is not so common, but there are cases in which the matter could arise. Some years ago I was trying a case in which I had to cancel bail for one of the accused persons when the public prosecutor satisfied me that there had been an attempt on the life of that accused person by his co-accused persons when he was on bail and admitted in a hospital. Apparently his co-accused persons thought that he was trying to give them away and he was the “link” in the case against them. There is a specific provision to that effect in section 148(5)(d) of the Criminal Procedure Act.

The duty of a public prosecutor in a bail application As pointed out above, the public prosecutor will invariably know more about a case and the characters involved that the magistrate. Where, therefore, the public prosecutor intends or has instructions to object to the granting of bail, it is his duty to inform the court his reasons for objecting to bail and the facts on which the objections are based. It will not do to make wild and vague allegations which you cannot substantiate. If, for instance, the reason is that the accused might abscond, then the public prosecutor must give facts such as, if true, that the accused has attempted to escape at or during or after his arrest. If the objection is on the ground that he might interfere with witnesses, then point out such acts of the accused as suggest such a probability. Where the allegations are serious and you anticipate resistance to your objection, be armed with an affidavit of the facts alleged. This is because the court might ask you so substantiate the allegations. But whatever may be your reasons for objecting to bail, you must be honest and sincere. In the final analysis, it is for the magistrate to decide whether or not to grant bail. It is a matter generally in his absolute discretion unless the law specifically

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curtails that discretion. The discretion, however, is a judicial discretion which the magistrate must exercise judicially. It has been held that in considering an application for bail, all the surrounding circumstances must be considered; and that even the acquiescence of the prosecution is not a determining factor (see Onasaa Mushi v. Republic, (1984) TLR 170).

No bail in certain cases Section 148(4) of the Criminal Procedure Act provides that no police officer or court must admit any person to bail while that person is awaiting trial or appeal if the Director of Public Prosecutions has certified in writing that it is likely that the safety or interests of the Republic would be prejudiced if the person was released on bail. Such certificate will take effect from the date it is filed in court or notified to the officer in-charge of a station until the proceedings concerned are concluded or the Director of Public Prosecutions withdraws the certificate. These provisions do not state that the Director of Public Prosecutions should disclose the nature of the interest to be protected. Indeed, it was so held by the Court of Appeal of Tanzania in the case of DPP v. Dirie and Another, (1988) TLR 252. In that case, the Court stated, at page 256: The words of section 148(4) given their ordinary meaning according to the established rules of construction are so clear that they do not require the DPP to specify or disclose the nature of the interest concerned. In our considered opinion, it is sufficient if the DPP ‘certifies in writing that it is likely that the safety or interests of the United Republic would thereby be prejudiced’. Subsection (5)(a) of that section provides that a police officer or court shall not grant bail to any person who is charged with murder, treason, armed robbery or defilement, illicit trafficking in drugs against the Drugs and Prevention of Illicit Traffic in Drugs Act, an offence involving heroin, cocaine, prepared opium, opium poppy (Papaver setigerum), poppy straw, coca plant, coca leaves, cannabis sativa or cannabis resin (Indian hemp), methaqualone (mandrax), cathaedulis (khat) or any other narcotic drug or psychotropic substance specified in the Schedule to the Act, which has an established value certified by the Commissioner for National Co-ordination of Drugs and Control Commission, as exceeding 10 million shillings.

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The law further provides that no accused person shall be admitted to bail if it appears that such accused person has previously been sentenced to imprisonment for a term exceeding 3 years; or where it appears that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded; or where it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety (see s. 148(5)(d) CPA). The old section 148(5)(e) of the Criminal Procedure Act had provided that no person shall be admitted to bail if the offence with which he is charged consisted of serious assault or causing grievous bodily harm on or threat of violence to another person, or having or possessing a firearm or an explosive. That provision was declared null and void by the Court of Appeal of Tanzania in the case of DPP v. Daudi Pete, (1993) TLR 22, for being unconstitutional. The Court held that the provision was so broadly drafted that it was a “rat-trap” provision in that it attempted to protect society by endangering society. The current section 148(5)(e) provides that a police officer or court shall not admit to bail an accused person if the offence with which he is charged involves money or property whose value exceeds 10 million shillings unless that person deposits cash or other property equivalent to half the amount or value of the actual money or property involved and the rest is secured by execution of a bond.

Change of circumstances after grant of bail If, after being granted bail, circumstances arise which, if the accused person had not been admitted to bail would, in the opinion of the public prosecutor, justify the court in refusing bail or requiring bail of a greater amount, the public prosecutor should so inform the court. Thereupon the court will issue a warrant of arrest of the accused person and, after giving the accused an opportunity of being heard, the court may either commit him to prison to await trial or admit him to bail for the same or an increased amount as the court may think just (see s. 150 CPA; and Hamisi Masisi v. Republic, (1985) TLR 24).

Forfeiture of recognisance Few people who stand surety for accused persons realise how risky it can be to do so. If an accused person absconds and so fails to turn up for his trial,

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the court will call upon the surety to show cause why the recognisance shown in the bond should not be forfeited. If such surety should fail to show good cause, the court may order him to pay the whole or such lesser sum of the bond as the court may think fit. Should he fail to pay the sum so ordered, his moveable property may be attached and sold to recover the amount. If that fails, he may be imprisoned for 6 months (see s. 160 CPA). It is that serious. The undertaking of a surety is not a mere formality. A surety is under a duty to ensure that the accused person does not abscond but appears to take his trial. He fails to do so at his peril (see Republic v. Forgabhai Jessa, (Uganda High Court. Bulletin No. 54 of 1963). It should be emphasised, however, that the surety must be given an opportunity to show cause. It is only when he fails to show good cause that, or where it is clear that he did not discharge his duties diligently as such surety that an order of forfeiture should be made. As was pointed out by Kisanga, J (as he then was) in the case of Hudson s/o Salum v. Republic, (1975) LRT n. 34, where the accused fails to appear on an appointed date, it is preferable not to forfeit the bond too quickly: It is best to adjourn and allow the surety reasonable time to find the accused if he thinks he can get him. If he succeeds in doing so, this can be taken into account in deciding whether to forfeit the bond or not.

Discharge of sureties Any surety for the appearance and attendance of an accused person released on bail may at any time apply to the court that the bond in respect of him be discharged. On receipt of such an application, the court will issue a warrant of arrest against the accused, directing that he be brought before the court. When the accused is brought, the court will then direct that the bond in respect of such surety be discharged. The court will thereafter call upon the accused to furnish another surety. If the accused fails to do so, he will be committed to prison (see s. 155 CPA). Similarly, if a surety dies before his bond is forfeited, his estate will be discharged from all liability of the bond, but the accused will be required to furnish another surety (see s. 156 CPA). The purpose of securing sureties is so that those sureties will ensure that the accused will be there to take his trial. So, if the accused is eventually convicted or acquitted or if the proceedings against him are otherwise terminated, the bonds of his sureties are automatically discharged. It should be pointed out here that applications for bail in cases under the Economic and Organized Crime Control Act, must be considered under

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section 29 of that Act and not under the provisions of the Criminal Procedure Act (see Edward Kambuga and Another v. Republic, (1990) TLR 84).

Chapter 6

PROCEDURE IN TRIALS Accelerated trials and disposal of cases Section 2 of Act No. 19 of 1992 introduced into the Criminal Procedure Act provisions for the holding of what is called a preliminary hearing. Those provisions are contained in section 192 of the Criminal Procedure Act. It is there provided that where an accused person pleads not guilty, the court must as soon as is convenient hold a preliminary hearing in open court in the presence of the accused or his advocate and the public prosecutor to consider such matters as are not in dispute and which will promote a fair and expeditious trial. In the course of the preliminary hearing, the court must explain to the accused person the nature and purpose of such hearing. At the conclusion of the preliminary hearing, the court must prepare a memorandum of matters agreed or not in dispute. These should be read to the accused person in a language which he understands. The public prosecutor and the accused and/or his advocate will then be made to sign the memorandum and the same will be duly filed in the court record. The purpose of a preliminary hearing is to narrow down matters which are in dispute in which evidence will be required to establish or rebut them. Those recorded as agreed or not in dispute are deemed to have been duly proved. However, at the trial the court may demand that they or some of them be formally proved. A public prosecutor must not go for a preliminary hearing without some preparation. For that reason, he should not ask for a preliminary hearing when investigations have not yet been completed. He must know what ought to be proved in the case and if he has the necessary evidence to prove the commission of the offence charged. Besides, he should try to anticipate what the line of defence might be. It has been held, however, that the omission to hold a preliminary hearing is not fatal to the proceedings if no failure of justice resulted thereby (see Pagi Msemakweli v. Republic, (1997) TLR 331).

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Summoning witnesses After the preliminary hearing has been conducted, the court will set a date for the hearing of the case. Before the date of the trial the public prosecutor or his investigator will file in court a list of witnesses which the prosecution desires to call at the trial. On receipt of such list the magistrate will cause to be issued under his hand witness summonses for service to be effected on the witnesses by police (see s. 142 CPA). The witness summons contains the name of the court issuing it, the place of trial, the case number, the name of the parties to the case, the name and address of the witness and the date and time of the trial. In some cases a court officer may serve the summonses.

Disobedience to court summons and consequences of non-appearance of witnesses If, without sufficient cause or excuse, a witness does not appear in obedience to the summons, the court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring such witness before the court at a specified time and place. Or, where the court is satisfied by evidence on oath that such person will not attend until compelled to do so, it may issue a warrant for his arrest and cause him to appear before it (see s. 144 CPA). When the witness has been brought under a warrant of arrest he may be released on his furnishing a surety by recognizance to the satisfaction of the court for his appearance on the hearing date. Should he fail to furnish the security, he may be remanded in custody until the day of hearing of the case in which he is required to give evidence (see s. 145 CPA). In a case where a witness duly summoned to attend does attend but departs without the permission of the court, he may be ordered to pay a fine not exceeding five hundred shillings (see s. 147 CPA).

Presence of accused As a general rule, the accused must be present throughout the trial (see Vithlani v. Republic, (1957) EA343). Also, as we have seen earlier, before the trial commences, the charge should be read over to him again. But it would seem that this is not necessary (see Hagaigwa s/o Chacha and Another v. Republic,

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(1972) HCD n. 201). The reading of the charge to an accused person before the commencement of the trial also serves not only to remind him of the offence but also to give him an early opportunity to change his plea if he so wishes. The presence of the accused, however, may be dispensed with in certain cases, such as where he is insane and disruptive of court proceedings (see Wachira’s case – supra).

Examination of witnesses As a general rule, every witness in a criminal case is required to take an oath or affirmation in accordance with the Oaths (Judicial Proceedings) and Statutory Declarations Act, 1966 (Cap.34 RE 2002). It is so provided under section 198 of the Criminal Procedure Act. One exception to this rule is children of tender years who, in the opinion of the court, are incapable of appreciating the nature, meaning and purpose of an oath. While a witness is giving evidence, the other witnesses in the case who are yet to give evidence must be outside the court-room so that they do not hear the evidence of the witness. This is in order to ensure that witnesses testify to what they themselves saw, heard or perceived and not merely say something because they have heard from another witness in court. When the witness has been examined by the public prosecutor, the accused or his advocate will be given an opportunity to cross-examine that witness. The court may ask such questions to the witness as it may think necessary (see s. 229 (8) CPA). This topic is discussed in more detail later in this book.

Prima facie case and no case to answer When all the witnesses for the prosecution have testified, the public prosecutor will close the prosecution’s case. At that point the court will consider and decide whether a prima facie case has been established by the prosecution, that is, if there is a case to answer. There is said to be a prima facie case where on the evidence given by the prosecution, the court could convict the accused person in the absence of any explanation by the accused. To put it differently, at the close of the prosecution’s case, the court considers whether or not a case has been made out by the prosecution sufficiently to require the accused to give his defence. If the court should answer that question in

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the affirmative, there is said to be a case to answer or prima facie case (see s. 231 CPA). The leading authority on what amounts a prima facie case is the case of R.T. Bhatt v. Republic, (1957) EA 332. Conversely, if at the close of the prosecution’s case it appears to the court that a prima facie case has not been made out or established so as to require the accused to give his defence to the charge or to a lesser offence, the court will so rule, dismiss the charge and acquit the accused person (see Jonas Nkize v. Republic, (1992) TLR 213). A ruling of no case to answer means that the prosecution’s evidence against the accused was not sufficient; or that the public prosecutor himself failed to ask the witnesses pertinent questions to establish all elements of the offence charged. What this comes down to is that a public prosecutor should not close the prosecution’s case until he is satisfied that the evidence discloses a prima facie case. But there are cases when it may be impossible to do so because of the inherent weakness of the available evidence.

The accused and his defence The object of the law of criminal procedure is to ensure that an accused person has a fair trial. A man must not be condemned unheard. So, if at the close of the prosecution’s case the court is of the opinion that there is a prima facie case against the accused, it will address him in the following terms or words to that effect: The prosecution has now closed its case, and I find that a case has been made out sufficiently to require you to give your defence. There are three alternatives open to you. You may, if you wish, give your defence on oath or without taking the oath, or you may elect to say nothing at all in your defence. If you elect to give evidence on oath, you will be cross-examined by the public prosecutor or by the court. If you elect to make an unsworn statement, you will nevertheless be cross-examined. If you elect to say nothing in your defence, the court is entitled to draw an adverse inference against you. The choice is your own. Further, if you want to call witnesses on your own behalf, you are at liberty to do so. What do you say? (see s. 231 CPA). These words need not be recorded in the case file, but a note should be made that the rights of the accused have been explained to him.

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If the accused gives his evidence on oath or without oath, the public prosecutor will have the right to cross-examine him. The witnesses called on behalf of the accused are examined in the same way as those of prosecution witnesses; but the accused must first examine them before the public prosecutor cross-examines them. At the close of the defence case the accused or his advocate has the right to address the court and, subject to other provisions of the Criminal Procedure Act, the public prosecutor has a right to reply (see s. 233 CPA). What should be borne in mind is that where an accused person has indicated that he wants to call witnesses on his own behalf, such request must be granted. It must not be refused except in very exceptional circumstances. If, on appeal, it should appear that the accused was denied the right to call his witness(es), the conviction will be quashed (see Mussa s/o Kiembe v. Republic, (1967) HCD n. 202).

Right to counsel Similarly, where an accused person has expressed an intention to engage an advocate and there is no reason to suppose that he is acting mala fide, the court must give him every opportunity to do so and may, for that purpose, adjourn the trial to another date. As was pointed out by the Court of Appeal for Eastern Africa in the case of Yusufu Gitta v. Republic, (1959) EA 211 at page 213: Every accused has the undoubted right to be defended by counsel. Galos Hired and Another v. Republic, (1944) AC 149, and Kingstone v. Republic, 32 Cr. App. R. 183, may be regarded as authority for the proposition that if an accused is deprived of that right through no fault of his counsel and a conviction follows, the conviction will be quashed on appeal. (See also Pascal Kitigwa v. Republic, (1994) TLR 65.) One more point: once the defence case has been closed, the prosecution may not call any more witnesses except in exceptional circumstances. In other words, the prosecution’s case cannot be reopened after the close of the defence for the purpose of “filling up a gap” in the prosecution’s case (Hasoni Abasi s/o Mohamed v. Republic, (1968) HCD n. 220).

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Power of court to summon material witness A magistrate may, at any stage of a trial, summon any person as a witness, or examine any person present, though not summoned as a witness, or recall and re-examine any witness who has already given evidence if, in the opinion of the magistrate, the evidence of such witness is essential to the just decision of the case (see s. 195 CPA). In such a case, however, both the public prosecutor and the accused (or his advocate; must be given an opportunity to examine or cross-examine such witness. The power of the court to summon and examine a witness who has not been called by the prosecution or defence “at any stage of the trial” must not be abused. But the degree of this discretion has sometimes been a subject of conflicting views. The better interpretation, it is submitted, would appear to be that adopted in the cases of Manyaki Nyaganya and others v. Republic, (1958) EA 495 and Juma Ali v. Republic, (1964) EA 461. In Juma Ali’s case, the appellant was convicted of cattle theft. The case against him was that he had stolen three head of cattle from a herd entrusted to his care and had sold them. The appellant’s father stated in his evidence that he had found the herd, less the stolen cattle, in the boma of one S. and the defence was that the appellant had sold the cattle on his father’s instructions and had handed to his father the proceeds of sale; and that his brother J. was with him part of the time when this happened. After the defence case was closed, the magistrate decided that the evidence of S. and J. was necessary and, acting under the provisions of section 151 of the Criminal Procedure Code (which was in pari materia with the provisions of section 195 of the Criminal Procedure Act), summoned both of them as court witnesses. On appeal, a Full Bench of the High Court held that the exercise of the discretion by the court to call those witnesses was exercised judicially and reasonably. The Court stated, at page 463: The position in Tanganyika is, in our opinion, that under the first part of section 151 the court has a general discretionary power to call or recall witnesses, a power which must be exercised judicially and reasonably, and not in a way likely to cause prejudice to the accused. Under the second part of the section, once the court forms the opinion that certain evidence is essential to the just decision of the case, the court is under a duty to call a witness or witnesses to give their evidence, whatever its effect is likely to be.

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Commissions for the examination of witnesses Where, in the course of any proceedings, a magistrate is satisfied that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay or expense or inconvenience which, in the circumstances of the case, would be unreasonable, the magistrate may issue a commission to any magistrate within the local limits of whose jurisdiction such witness resides. A “commission” is a warrant of authority to that other magistrate to take the evidence of that particular witness, something which that other magistrate would otherwise have no jurisdiction to do. At the time of issuing the commission, the magistrate who is to issue the commission must inform the public prosecutor and the accused (or his advocate) that they can prepare questions which they would themselves have asked the witness had he appeared before the court. The questions should then be sent with the commission. If the accused so desires, he may appear before such commissioned magistrate by advocate, or in the case of an accused person who is not in custody in prison, in person, and may examine and cross-examine (as the case may be) the said witness. On receipt of the commission, the commissioned magistrate will proceed to the place where the witness is or cause the witness to appear before him, and will then proceed to record the evidence of the witness in the same way and will exercise the same powers as in the case of a trial. Where the parties have sent written questions to him, he will put the questions to the witness and record the answers thereto. When he has duly executed the commission he will return the commission together with the deposition of the witness so examined to the magistrate who issued the commission. Such deposition must be made available for inspection to the parties to the case and will form part of the record of trial, and the trial will resume (see ss. 206–209 CPA).

Remarks respecting demeanour of witnesses One of the things that a magistrate has to consider in evaluating the evidence of witnesses is their demeanour. “Demeanour” is defined in the Shorter Oxford Dictionary as “conduct, mode of proceeding, management, practice, behaviour, manner of comporting oneself towards others, bearing”. The demeanour of a witness, therefore, means the manner in which he conducts or comports himself or answers questions put to him. These in-

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clude his hesitancy, refusal to answer certain questions, his evasiveness, his composure or restlessness or shifty eyes as he answers questions put to him. Demeanour, then, often furnishes a clue as to whether or not a particular witness is telling the truth or otherwise. As Sarkar states, at page 50 of Evidence 11th Edition: The demeanour and bearing of a witness should be very closely observed. Unless the witness is a skilled actor, his demeanour frequently furnishes a clue to the weight of his testimony. So, in the course of recording the evidence of witnesses, the magistrate may record such remarks regarding the demeanour of witnesses as he thinks necessary (see s. 212 CPA). These will assist him when he comes to evaluating the credibility of the witnesses.

Proceedings heard partly by one magistrate and partly by another magistrate Where any magistrate, after having heard and recorded the whole or any part of the evidence in any trial or conducted in whole or in part any committal proceedings, ceases to exercise jurisdiction and is succeeded, whether by virtue of an order of transfer or otherwise, by another magistrate who has and who exercises jurisdiction, the magistrate so succeeding may act on such evidence or proceeding recorded by his predecessor, and partly by himself, or he may, in the case of committal proceedings, recommence the proceedings. In the case of any trial, however, the accused may, when the second magistrate commences the proceeding, demand that the witnesses or any of them be re-summoned and re-heard. The second magistrate, therefore, must inform the accused of that right when he commences the proceeding. Besides, the High Court may, whether there has been an appeal or not, set aside any conviction based on evidence not wholly recorded by the magistrate before whom the conviction was had if it is of the opinion that the accused has been materially prejudiced thereby, and may order retrial (see s. 214(1) and (2) CPA). The case of Joshua Zakayo v. Republic, (1972) HCD n. 38, is a good illustration of the application of the foregoing provisions. In that case the appellant was convicted on a number of counts of forgery and stealing. The case was heard by two magistrates, the first of whom was transferred after

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hearing the evidence of all but one of the prosecution witnesses. The second magistrate, exercising his discretion under section 196(1) of the Criminal Procedure Code (now section 214(1) of the Criminal Procedure Act), decided not to recommence the trial, but he did not inform the accused person of his right to have the witnesses or any of them who had already given evidence before the first magistrate to be recalled. On appeal to the High Court, the Court said: The proviso to Section 196(1) provides that (a) in any trial the accused may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be summoned and reheard and shall be informed of such right by the second magistrate when he commences the proceedings. The learned trial magistrate failed to inform the appellant of his right to have the witnesses re-summoned and reheard. The case against him depended to a great extent on the credibility of witnesses so that the assessment of the evidence would best be done by the magistrate who had the opportunity of seeing and hearing both the appellant and the prosecution witnesses. The Court accordingly quashed the conviction and ordered a fresh trial (see also Joseph Rogenah v. Republic, (0970) HCD n. 76; and Edward Dick Mwakamela v. Republic, (1987) TLR 122). In Zakayo’s case, the Court referred with approval to the case of Reminisele Elisawo v. Republic, (1967) HCD n. 75, in which the Court held that as there was no record that the accused was informed of his right to demand that witnesses who had given evidence before the first magistrate should be resummoned and re-heard, and that since the primary purpose of a hearing was to permit the court to observe the demeanour and evaluate the credibility of all the witnesses, the trial was a nullity. Where, however, a magistrate who has heard and recorded the whole of the evidence in any trial has, before passing the judgment, ceased to exercise jurisdiction therein, he may write the judgment and forward the record of proceedings together with the judgment to be read over and, in the case of a conviction, for the sentence to be passed by such other magistrate (see s. 214(3) CPA).

Chapter 7

JUDGMENTS AND SENTENCES What is a judgment? It is the duty of the presiding magistrate to prepare a judgment in every case which he himself has tried. It is, therefore, a province, perhaps, outside the duties of a public prosecutor. However, a public prosecutor must know something about judgments. In a criminal case, a judgment is a reasoned account of the evidence, the law, findings of fact and decision of guilt or innocence of an accused person. To a public prosecutor, therefore, a well-prepared judgment tells him of his own performance; what were the good and bad points in his case. A good judgment, therefore, is a lecture to the public prosecutor and the public in general on the law of evidence, the application and logic of the law and the many human failings by those who gave evidence in the trial. The process of ascertainment of facts from the evidence and findings thereon are contained in a judgment. Section 312 of the Criminal Procedure Act provides that every judgment must, except as otherwise expressly provided, be written by, or reduced to writing under the personal direction and superintendence of, the presiding judge or magistrate in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by such presiding officer as of the date on which it is pronounced in open court. In the case of a conviction, the judgment must specify the offence which, and the section of the Penal Code or other law under which, the accused person is convicted. In the case of an acquittal, the judgment must state the offence of which the accused person is acquitted and must direct that he be set at liberty. In short, a judgment must set out the point or points for determination, the decision thereon and the reasons for the decision. It must, therefore cover essential ingredients of the offence (see Livingtone v. Uganda, (1972) EA 196; and Charles Izengo v. Republic, (1982) TLR 237; and George Mingwe v. Republic, (1989) TLR 10).

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Style of writing a judgment Different magistrates have different styles of writing a judgment. There can, therefore, be no hard and fast rule about how it should be formulated so long as it contains the point or points for determination, the decision and reasons for the decision. For what it is worth, I describe here my own way of preparing a judgment. The judgment opens with a brief statement of the offence with which the accused person stands charged and the particulars of the offence. Also included here are the names of the accused. Thereafter, a careful summary of the prosecution’s evidence is done, followed by that of the defence. Although it is a summary of the evidence, care should be taken not to omit any important fact which will be crucial in the decision and reasons for the decision. That done, the next thing to do is to point out the issues or points to be determined. Here it should be made clear as to what is in issue and what is not disputed. In a case of theft, for example, if the accused admits taking the property but denies stealing it, that should be pointed out, and the single question for determination will be whether the taking of the thing in the circumstances amounted to theft or any offence at all. If, however, the accused denies stealing and possession of the article, then the questions for determination will be (a) whether the accused was ever in possession of the article and, if so, (b) whether the possession in the circumstances amounted to theft or some other offence of which the accused could be convicted under the principle of substitution of convictions, or there was no offence committed. When the points for determination have been pointed out, the evidence of both sides is evaluated. Here, discrepancies, corroborated accounts, demeanour, etc. are dealt with. That done, the judgement goes on to set out findings of fact from what have been found in the evaluation of the evidence stating why some facts have been proved and others not proved. What follows next is an analysis of the applicable principles of law, if any, in the case. The judgment goes on to apply those principles to the findings of fact to arrive at a decision. The magistrate concerned will then make his decision and enter a conviction or acquittal, as the case may be. As Abernethy, J. pointed out in the case of Amirali Ismail v. Republic, 1 TLR (R) 370: A good judgment is clear, systematic and straightforward. Every judgment should state the facts of the case, establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding.

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Effect of non-compliance with these provisions What are the consequences where a judgment does not comply with these provisions? In the case of Willy John v. Republic, (1956) 23 EACA 509 the Court held that failure to comply with the provisions of section 169(1) of the Criminal Procedure Code (which was in pari materia with Tanzania’s section 171 of the Criminal Procedure Code (now section 312(1) of the Criminal Procedure Act) will not necessarily invalidate a conviction if there is sufficient material on the record to enable the appeal court to consider the appeal on its merits. But if there is insufficient material on the record to enable the appeal court to consider the appeal on merits, the conviction must be quashed. In the case of Kasusura and Another v. Kabuye, (1982) TLR 338, the trial judge did not evaluate the evidence of each witness and did not make definite findings of fact on contested issues. The appeal Court “rejected” the judgment and ordered a retrial, holding that the judgment was a travesty of a judgment as it decided nothing. Although the statutory provisions require that a magistrate should date and sign his judgment, it has been held that such an irregularity is not fundamental and so is curable (see also Willy John’s case (supra); Jeremiah Shemweta v. Republic, (1985) TLR 228; George Mingwe v. Republic, (1989) TLR 10; and Amiri Mohamed v. Republic, (1994) TLR 138).

Sentences One of the matters on which police and magistrates do not always see eye to eye is the assessment of sentences. By and large, the general opinion of police officers (and the sensitive public) is that courts are unduly lenient with accused persons found guilty of committing crimes. I am not attempting here to justify sentences passed by the courts. That is outside the purview of this book. A public prosecutor, however, must be familiar with basic principles which guide or ought to guide the courts in their assessment of sentences. To that let us now turn.

The purpose of punishment In order to appreciate the problem, one must be clear in one’s mind as to what are the purposes of punishment. Ideally, the purposes of punishment may be

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categorised as deterrent, preventive, reformative and retributive. Punishment is deterrent in the sense that it is intended to scare other potential wrong doers by making the convicted person an example to them. It is preventive in the sense that a person who is incarcerated is thereby disabled from committing more crimes because, to put it colloquially, he is put out of circulation permanently or for a given period. Punishment is also said to be reformative in the sense that the institutions to which criminals are committed are expected to change the character of the convict by education and discipline. Punishment is retributive in the sense that it is like “an eye for an eye and a tooth for a tooth”. It is, in fact, a gratification of our instinct for revenge for the wrong deed. When all is considered, it is submitted that punishment is primarily intended to be deterrent. As stated in Salmond: On Jurisprudence, at page 115, 11th Edition: Punishment is before all things deterrent, and the chief end of the law of crime is to make the evil doer an example and a warning to all that are like-minded with him.

Assessment of sentences Bearing in mind, then, that the primary purpose of punishment is deterrence, the type or measure of sentence to be imposed on an offender must have that bearing. In any event, however, the foremost guide to the assessment of sentences is the seriousness of the crime committed and the maximum sentence provided by statute for each given offence. It is illegal to sentence a convict to term of imprisonment or a fine which is in excess of the maximum punishment provided by statute even for the most laudable of reasons. Apart from this statutory limitation, there is limitation imposed by the jurisdiction of a particular court. Section 170 of the Criminal Procedure Act sets out the maximum sentences which different courts or magistrates of various statuses may impose. Both magistrates and public prosecutors would do well to be familiar with those provisions. Other considerations include the circumstances in which the offence was committed, the age and previous record of the accused, the prevalence of the offence, the seriousness of damage or injury caused to the victim, the value of property involved and how much of it has been recovered, and many others. It would be wrong in principle, for instance, to sentence a youthful first offender to the same term of imprisonment as an incorrigible

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offender with a long record of previous convictions; just as it would be wrong in principle to treat with leniency a man found guilty of as serious and violent crime except in extremely extenuating circumstances. It is only when all these factors have been considered, and within the confines of law, that a sentence is chosen and then passed. In other words, sentencing should not be a simple mechanical process. An inadequate sentence is as unjust as an unduly severe sentence. A sentence should as far as possible fit the crime and the criminal.

Types of sentences The sentences that a subordinate court may lawfully pass include imprisonment, fines, absolute discharge committal to probation or approved school, suspended sentences, caning, corporal punishment, forfeiture and compensation (see s. 25 PC). Sentences of imprisonment are usually imposed for serious crimes. Fines are imposed in cases of minor offences or statutory offences where the relevant statute prescribes for payment of fines, such as in many traffic offences. Where a statute mentions imprisonment with no provision of a fine in lieu thereof, a fine should only be imposed where the court has satisfied itself that a custodial or any other punishment is unsuitable for the offence, the circumstances in which it was committed and the antecedents of the accused. Similarly, where a statute prescribes a sentence of fine, then a fine should be imposed, with a custodial sentence only as an alternative if he fails to pay the fine, or an order of forfeiture can be made instead. Where it is proposed to impose a sentence of a fine, the capacity of the accused to pay the fine must be considered along with the gravity of the offence (see Ally and Another v. Republic, (1972) HCD n. 115). The Penal Code also lays down the scales of alternative sentences of imprisonment for given amounts of fines (see s. 29 PC); and section 29(a) of the Penal Code specifically states that where a fine is to be imposed, it must not be excessive. The suspended sentence should be resorted to only where the offence is not a serious one. Where the offence is a serious one and its occurrence persistent, or where the offence involves a breach of trust and a large sum of money, a suspended sentence would not normally be appropriate. A suspended sentence should only be resorted to where, having regard to the extenuating circumstances in which the offence was committed and the relative triviality of the offence, sentences of immediate imprisonment, fine, or

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absolute discharge are considered inappropriate (see Uganda v. Baguma, (1970) EA 169). Similarly, absolute discharge or conditional discharge should be used for minor offences and for first offenders whom the court believes would be in danger of soiling their character even more if they were committed to prison where there is a risk of mixing with hardcore criminals; or where there are obvious extenuating circumstances (see s. 38 PC).

The role of the public prosecutor in the sentencing process We have seen the types of sentences which subordinate courts can lawfully pass, the principles which guide the courts in choosing the type of sentence and in assessing the measure of the type of sentence chosen. But not all factors to be taken into account are often known to the trial court. The magistrate will know the seriousness of the offence and, sometimes, the circumstances in which the offence was committed. He/she will also have some idea as to the age of the accused from the charge sheet, or he/she could obtain medical evidence as to the age of the accused. But a magistrate will normally be ignorant of the character of the accused person. It is here that the public prosecutor must play his role. He must tell the court whether or not the accused is a first offender or has a criminal record. If the accused has a criminal record, that record should be produced before the court. It is also advisable for the public prosecutor to tell the court as much as he knows about the accused, the prevalence of the offence in the area and, if it be true, the difficulty of detecting its commission. The court will need all this information so as to assess an appropriate sentence. Even where the accused is said to be a first offender, there could be something which the public prosecutor might know, pro or against the accused which could influence the court to pass a more severe or lenient sentence than the court could otherwise have done.

The accused must be heard in mitigation of sentence For the same reason that a public prosecutor is allowed to address the court before sentence is passed, the convicted person must also be heard in mitigation of sentence before sentence is passed on him (see Haining and Others v.

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Republic, (1972) HCD n. 53). He must be given an opportunity to contradict, explain or qualify whatever the public prosecutor has told the court about the accused and the circumstances of the case. Here the convicted person may also tell the court his age, his antecedents, his responsibilities to his family (if any) and, if he is honest, what led him to commit the crime. The importance of this right for a convicted person was emphasized by Kasanga, J (as he then was) in the case of Republic v. Sulemani Saidi and Another, (1977) LRT n. 29, in which he said: Allocutus is an important right of an accused person and magistrates should always ensure that the accused person is given the opportunity to exercise it because he may have something to say which could influence the magistrate to exercise discretion in his favour. If the accused has previous convictions, a public prosecutor, as pointed out above, must produce a record of such previous convictions. This should be read over to the accused, and the accused must be given an opportunity to deny or confirm it. If he denies it, the public prosecutor must prove it by producing a certificate of those previous convictions, or by other evidence. When the magistrate has heard both sides, he proceeds to assess sentence and pass it. As far as possible, a magistrate should give reasons as to what factors he has taken into account in arriving at the sentence he is about to pass, or the reasons which led him to decide on a particular type of sentence in preference to another or others. Failure to do so may lead an appellate court, in certain cases, to feel that the magistrate approached the question of sentencing less that judicially. In addition to what the court has been told by the public prosecutor and the accused, the court has power to interrogate the accused as to his antecedents. It must be appreciated that no two cases are the same. Two people convicted on the same day in different cases of the same offence may well receive different sentences. For one thing, the antecedents of people are rarely the same. There is, for instance, a difference in the degree of culpability between a person who commits an offence of his own volition and one who succumbs to it in the face of great temptation which is not of his own making (see Santok Singh v. Republic, 15 EACA 97; and Hopley v. Republic, 16 EACA 110.). Besides, the value of the subject-matter must be taken into account (see Rashid Kiranga v. Republic, (1990) TLR 59).

Chapter 8

SUBSTITUTED CONVICTIONS It is the duty of a public prosecutor to bring out all the evidence that is necessary to establish all the elements of the offence with which the accused stands charged; and it is the duty of the court to decide whether or not the evidence before it establishes that charge beyond reasonable doubt. As we have seen earlier, if in the course of a trial, the public prosecutor or the court discovers that the charge as laid is at variance with the evidence so far adduced, the charge may be amended or a fresh one substituted if the intended amendment or substitution would be proper and would cause no injustice to the accused person. In certain cases, however, it is not until a magistrate starts to prepare a judgment that he discovers that there is variance between the evidence and the charge as laid. In such an eventuality the magistrate may, in certain circumstances, substitute a conviction for an offence with which the accused was not charged. Let us now examine the circumstances in which such substituted convictions may be proper.

When the Offence Proved is Included in the Offence Charged When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it; and when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it (see s. 300(1) and (2) CPA). What should be borne in mind in determining whether substitution would be in order are the following: (1) that the offence sought to be substituted is minor to the one with which the accused was charged and tried; (2) that the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by the major charge constitutes the minor offence also; and (3) that the major charge has given the accused no-

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tice of the circumstances going to constitute the minor offence of which it is sought to convict him, that is, that it must not appear in substituting the minor offence, that the accused was taken by surprise (see Ali Mohamed Hassani Mpanda v. Republic, (1963) EA 294; Dracaku v. Republic, (1963) EA 363; and WamburaNyango v. Republic, (1990) TLR 38). To illustrate, if A is charged with the offence of causing grievous harm, but the evidence shows the harm caused did not amount to grievous harm but merely actual bodily harm, he may be convicted of assault causing actual bodily harm although he was not charged with that offence. The reason is that the offence of assault causing actual bodily is minor to that of causing grievous bodily harm, but it consists of an assault and bodily harm, which are part of the constituents of the offence of assault causing grievous bodily harm. But a more serious offence cannot be substituted for a lesser offence.

Conviction for attempt in place of full offence When a person is charged with an offence but the evidence shows that he did not commit it but only attempted to commit it, he may be convicted of attempting to commit that offence (see s. 301 PC). So a person charged with theft may be convicted of attempted theft.

Substituted convictions for certain categories of offences In addition to substituted convictions for minor offences, it is permissible to substitute a conviction for an offence kindred to the one charged in certain specified cases. For instance, a person charged with rape may be convicted of the offence of indecent assault on females, insulting the modesty of a woman, defilement, or procuring a woman by threats or false pretences for purpose of having unlawful sexual intercourse, or incest by males. Similarly, a person charged under any of sections 294–298 of the Penal Code may be convicted of an offence under another of those sections if the evidence proves it but does not prove the offence charged. So a person charged with burglary may be convicted of the offence shop-breaking and stealing under section 296 of the Penal Code (see s. 304 CPA). Where a person is charged with the offence of stealing anything and the evidence does not prove theft but proves the offence of obtaining goods by

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false pretences, or cheating, or receiving property fraudulently obtained, or being in possession of property suspected to have been stolen or otherwise unlawfully acquired, he may be convicted of that offence although he was not charged with it. Similarly, a person charged with the offence of cheating or obtaining property by false pretences may be convicted of stealing the property in respect of which he was charged; a person charged with the offence of obtaining goods by false pretences may be convicted of cheating and vice versa; and a person charged with the offence of receiving stolen property may be convicted of retaining that property and vice versa (see s. 306 CPA). Although these provisions operate in favour of the prosecution more than in the accused’s favour, they do not lessen the need for a public prosecutor to draw up charges correctly. If the statements of witnesses reveal a charge of stealing, then prefer a charge of stealing. The variance between the charge and the evidence can only be excused where the witnesses take you by surprise or where no ordinary diligence would have been of help.

Chapter 9

COMMITTAL PROCEEDINGS Where an offence with which the accused is charged is not triable by a subordinate court, or where the Director of Public Prosecutions so directs in writing or otherwise that it is not suitable to be disposed of by summary trial the subordinate court will hold committal proceedings as stated hereunder. When the accused is brought before the court for the first time on such a charge, the subordinate court will read over and explain to the accused the charge set out in the charge sheet but he will not be required to plead thereto. Thereafter the court will address the accused as follows, or words to that effect: This is not your trial. If it is so decided, you will be tried later in the High Court, and the evidence against you will then be adduced. You will then be able to make your defence and call witnesses on your behalf. The accused will then be committed to remand prison nor released on bail by the subordinate court. Thereafter, after investigations have been completed, the officer in charge of investigations must forthwith cause to be typed statements in quintuplicate of persons intended to be called as witnesses at the trial and sent, along with the police case file, to the Director of Public Prosecutions or any other officer designated by him on that behalf. The Director of Public Prosecutions, after perusing the police case file and statements of the intended witnesses, may be of the view that the evidence is insufficient to warrant the institution of a prosecution. In such a case (where the accused has already been charged), the Director of Public Prosecutions will immediately enter a nolle prosequi unless he has reason to believe that further investigations can change the position, in which case he will direct further investigations to be carried out. If the Director of Public Prosecutions or such other authorised officer, after studying the police case file and the statements of the intended witnesses, decides that there is sufficient evidence to warrant prosecuting the accused, he will draw up or cause to be drawn up an information and, when signed by him, submit it together with three copies of each of the statements

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of witnesses to the High Court where the information will be filed. The Registrar of the High Court will then send a copy of it to the subordinate court where the accused was first presented. The subordinate court will then cause the accused to appear before it and will read and explain or cause it to be read and explained to the accused the information brought against him as well as the statements of witnesses whom the Director of Prosecutions intends to call at the trial. That done, the subordinate court will address the accused in the following words or words to that effect: You have now heard the substance of the evidence that the prosecution intends to call at your trial. You may either reserve your defence, which you are at liberty to do, or may say anything which you may wish to say relevant to the charge against you. Anything you say will be taken down and may be used as evidence at your trial (see s. 246 (4) CPA). The court should further make the accused to clearly understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been held out to him in order to make an admission or confess his guilt. He should then be told that if after that warning he does make a statement it will be given in evidence at his trial notwithstanding the threat or promise or favour (see s. 246(4) CPA). The court will then record everything the accused may say. What he has said should then be read over to him and he must be asked if it has been recorded correctly. If he is satisfied that it is correct, he should be made to sign at the end of the statement. If he has anything to say in addition to the statement, or if he wishes to correct what has been recorded, he must be allowed to do so, and such correction or addition must also be recorded and read over to him. When the accused is satisfied that the statement is correct, he will be made to sign it, and when all this has been done, the magistrate will commit the accused for trial by the High Court. It is the duty of the court conducting committal proceedings to inform the accused that he is entitled to a free copy of the proceedings in the court and the court should also take down the names and addresses of the witnesses whom the accused wishes to call at his trial. The court has the further obligation of making inquiry from the accused if he has the means to afford legal services at his trial. If he does not have the means, the court must recommend that the conduct of the accused person’s defence be at the expense of the State. The accused is then remanded in custody or released on bail and the record is transmitted to the High Court.

Part II

Criminal Law: Select Offences

Chapter 10

GENERAL RULES OF CRIMINAL RESPONSIBILITY Knowledge of Criminal Law A public prosecutor cannot hope to be or ever become a public prosecutor worth the name if he/she has no idea about elements of common offences often tried in subordinate courts, such as rape, house-breaking or burglary, stealing, assaults, robbery, cheating, forgery, abusive language, to name but a few. Such a public prosecutor will not walk into the court room with any confidence and he is bound to find his task almost impossible. He will be groping in the dark throughout the trial, and the chances will be that he will be confused, will confuse the witnesses as well as the court. To call a spade a spade, a public prosecutor who does not know elements of simple offences is bound to make himself a fool in a court room. No one, of course, expects a public prosecutor, who, more often that not, a mere police officer, to know the intricacies of the law. But a public prosecutor must have some basic knowledge of elements or constituents of offences of common occurrence. Such knowledge is as much his tool as are his police files and exhibits. Complete ignorance on the part of a public prosecutor of simple principles of law cannot be tolerated by any judicial system that uses public prosecutors in the dispensation of criminal justice.

General rules of criminal responsibility As a general rule, a person cannot be guilty of an offence unless he has done an act which the law prohibits or has omitted to do that which the law requires him to do, and that the act or omission was with a guilty mind or with mens rea. As they say in Latin, “Actus non facit reum, nisi mens sit rea”, which means: the act itself does not constitute guilt unless done with a guilty mind. In other words, as a general rule, the act done or omission made must be one which the law prohibits and it must have been done or omitted to be done with intent to cause the result. To state the principle differently, in order to prove that an accused person is guilty of an offence, you must prove that actus reus, that is, the act done and mens rea, that is, the guilty mind.

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As is usual with the conduct of human affairs, intention is not always capable of positive proof. It is often inferred from the conduct of a person and the circumstances in which he so conducted himself. If, for instance, a person pursues a line of active conduct which results in harm to some person or damage to some property, the question whether he intended that result will depend on whether he could have foreseen the consequences of his active conduct. To take a simple example, if a man were to throw a stone into a crowded restaurant and the stone causes some injury to some person in the restaurant, the intention to cause injury to some person will be inferred because injury to some person in the restaurant was a foreseeable consequence of the act of throwing a stone in the crowded restaurant. The principle that a man cannot be guilty of an offence unless the act or omission was with intent would appear to arise from the ethical principle that it is wrong to punish a man for a course of conduct which produces mischievous results which he neither intended nor could have foreseen. On the basis of that principle, we have several rules which are discussed below.

Bona fide claim of right A person is not criminally responsible for an act or omission which was done or omitted to be done in the exercise of a bona fide claim of right and without an intention to defraud (see s. 9 PC). In the case Charles Makanyaga s/o Makobo v. Republic, (1967) HCD n. 271, the accused was convicted of stealing cattle and sheep from his uncle. On a prior occasion the accused had openly claimed a right to the cattle and sheep, and he openly took them in the afternoon in the presence of the complainant’s wife and another person. The High Court held that even if the accused had no right to the animals, it would be a defence that he had an honest belief, based upon reasonable grounds that he had a right. The conviction was quashed because the trial magistrate had failed to consider that issue. It should be emphasised, however, that the belief of an honest claim of right must be honest and must be based upon reasonable grounds. It has also been held that it is not theft to take goods under a genuine claim of right, and that it is immaterial whether such claim is properly based in law, as long as the accused believed it to be good. In the case of Mussa Kandege v. Republic, (1968) HCD n. 398, Hamlyn, J., stated: To convict for theft, a court must be satisfied that the taking was not done under a “claim of right”. It matters not. . . whether such claim

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can in fact be substantiated in law: the question. . . is whether the accused person, at the time of the commission of the act complained of, considered that he had any right to act so. Even if in law he had no right, but considered that the taking was justifiable, then a conviction cannot be had. (See also Salum s/o Athumani v. Republic, (1991) TLR 137; and Haruna Ndoroga v. Republic, (1992) TLR 1.) The above holdings must be distinguished from cases where an employee takes money which he has collected on behalf of his employer and appropriates it for himself on the ground that it was part of his salary which had not yet been paid to him. In the case of Geofra s/o Buyombeya v. Republic, (1968) HCD n. 373, the accused was convicted of stealing by servant. He was a Divisional Secretary of TAPA, and collected revenue on its behalf. He admitted appropriating part of it for himself, but alleged that this was partly because he had not been paid his salary by TAPA for 8 months. On appeal, the High Court rejected his appeal, holding that even if an employee has not been paid his salary he has no right to use the money which he has received for his employer without authorization. It will be noted, therefore, that there are cases which are on the borderline, and the defence of honest claim of right can be devastating if it comes as a surprise to a public prosecutor. Therefore, in prosecuting cases of theft, malicious damage to property, etc., the public prosecutor must lead evidence which excludes the defence of honest claim of right. He must try to forestall this defence even if the accused does not suggest it in his cross-examination of the prosecution witnesses.

Intention or motive Subject to certain exceptions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident; but the motive which induces him to do an act or omit doing an act or to form an intention, is generally immaterial. Equally immaterial, unless otherwise expressly stated, is the result which the accused intended to be caused by an act or omission (see s. 10 PC). For instance, where an accused person takes anything capable of being stolen in circumstances which make the taking an offence of theft, it is no defence for him to say that the motive for the taking was hunger.

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Exceptions to the rule of need of proof of intention include offences relating to negligent acts or omissions (see Chapter XXII PC) and offences under the Road Traffic Act, 1973.

Mistake of fact Anyone who does an act or omits to do an act under an honest, but mistaken, belief as to the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed them to exist. Let us take an example: A goes out at night to hunt pigs which often destroy his cassava in his shamba. While he is in the shamba he notices a movement among the cassava trees and sees a dark object. At the same time he hears noises which he thinks are those of pigs. He calls out but receives no reply. So he throws a spear in that direction and wounds a man who was making love to a woman in the shamba. In those circumstances the defence of mistake of fact may be available to him because had the facts been what he had believed them to be, that is, that the man and woman were the pigs he was hunting for, he would have committed no offence. The requirements of the defence of mistake of fact are three (1) that the state of things believed to exist would, if true, have justified the act done; (2) that the mistake was reasonable in the circumstances in which the act was done or the omission made; and (3) that the mistake relates to a fact and not law (see s. 11 PC; Eliasi Seif v. Republic, (1984) TLR 244).

Ignorance of law Unless knowledge of law by the offender is expressly declared to be an element of the offence, ignorance of the law is no defence for any act or omission which amounts to an offence. This principle has found expression in the Latin maxim: “ignorantia juris non excusat.” It has been held, however, that in certain situations ignorance of the law could be a foundation of a mistake of fact and so afford a defence (see Harnam Singh v. Republic (1968) HCD 280).

Presumption of sanity Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question unless the contrary is proved (see

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s. 12 PC), and every same adult is presumed to intend all the consequences which are likely to flow directly from his intentional conduct. In the latter case, however, the prosecution must prove that the conduct of the accused was intentional before the presumption as to the consequences of it can arise. This principle is not one of law in fact, but one of common experience in everyday life (see Kenny’s: Outline of Criminal Law, 18th Edition). The presumption, therefore, can be rebutted or displaced by evidence providing the contrary.

Defence of insanity A person is not criminally liable for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind, incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. However, he may be criminally responsible for an act or omission if it is shown that the disease affecting his mind does not in fact affect his capability to understand what he is doing or of knowing that he ought not to do the act or make the omission. The question whether or not the accused was suffering from a decease affecting the mind and so was incapable, at the time of doing the act or making the omission, of understanding what he was doing or of knowing that he ought not to do the act, is one of fact and will depend on the circumstance revealed by the evidence. Medical evidence as to the conduct of the accused at the time he did the act or made the omission, and so on, will show whether accused was so affected by the alleged disease of mind as to avail himself of the defence of insanity (see s. 13 PC).

Intoxication As a general rule, intoxication is not a defence to a criminal charge. Intoxication, however, is a defence to a criminal charge where by reason of such intoxication the accused, at the time he did the alleged act or made the omission, did not know what he was doing, and (a) the state of his intoxication was caused without his consent by the malicious or negligent act of another person, or (b) the accused was by reason of intoxication insane, temporarily or otherwise, at the time he did the act or made the omission. Where the defence of intoxication has been established, in circumstances coming under paragraph (a) above, the accused will be discharged, and in a

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case falling under paragraph (b) the provisions relating to insanity (see below) will apply (See s. 14 PC). It should be noted that the term intoxication here includes the state produced by narcotics or drugs. Now, what is the burden of proof resting upon an accused person who puts up a defence of intoxication? In the case of Cheminingwa v. Republic (1956) 23 EACA 451), the Court of Appeal stated, at page 452: It is of course correct that if the accused seeks to set up a defence of insanity by reason of intoxication, the burden of establishing that defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove. But if the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required to constitute the offence charged, it is a misdirection if the Court lays the onus of establishing this upon the accused. In the case of Nyakite s/o Oyugi v. Republic (1959) EA 322, the Court followed its decision in Cheminingwa’s case and held that it is a misdirection to say that the burden of raising a defence of intoxication so as to negative intent is on the accused. This principle was reiterated by the Tanzania High Court in the case of Republic v. Magoma (1971) HCD 44, in which the court stated: Although the burden of proving insanity as a result of intoxication is on the accused, the burden is not on him to prove that due to intoxication he was incapable of forming the specific intent . . . e.g. to kill or cause grievous harm necessary to prove malice aforethought. The burden of proof in this case is always on the prosecution.

Immature age A person under the age of 10 years is not criminally responsible for any act or omission (s. 15(1) PC) and a person under the age of 12 years is not criminally responsible for any act or omission unless it is proved that at the time of doing the act or making the omission he had the capacity to know that he ought not do the act or make the omission (see s. 15(2) PC). Whether or not a person under the age of 12 years had the capacity to know that he ought not to do the act or make the omission is a question of

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fact. It will depend, inter alia, on the circumstances in which the alleged act was done or the omission made. Evidence as to his conduct just before, during or after the alleged act or omission will give some clue as to his capacity to know that he ought not to do the act or make the omission in question. A male person under the age of 12 years is presumed to be incapable of having sexual intercourse (see s. 15(3) PC). If, therefore, an accused is charged with a sexual offence, and he appears to be below 12 years of age, the public prosecutor should arrange for accused to be examined by a doctor as to the accused’s age before filing the charge in court, or to prove that despite his age, he was capable of having sexual intercourse.

Judicial officers As a general rule, no act or omission done or omitted to be done by a judicial officer will render such judicial officer criminally responsible if the act or omission was done or omitted to be done bona fide, and in the exercise of his judicial functions. To establish this defence therefore, the accused must show (a) that the act or omission was done or omitted to be done in good faith, and (b) that it was in the exercise of his judicial functions (see s. 16 PC).

Compulsion A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted to be done only because during the whole of the time in which it is being done or omitted to be done the person is compelled to do the act or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses. But if the threats are of future injury they will not excuse any offence. A person putting up this defence must show that the other offenders threatened to instantly kill him or do him grievous bodily harm (see s. 17 Penal Code).

Use of force in effecting arrest Where a person is charged with a criminal offence arising out of the arrest or attempted arrest of any person who forcibly resists such arrest or attempts to evade being arrested, it is a defence that the force used which re-

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sulted in the harm to the person arrested was necessary in order to effect the arrest and that the degree of force used, having regard to the offence which had been committed or was being committed, was in the mind of the court, reasonable (see s. 19 PC). For instance, it would not be reasonable for one to shoot and kill an unarmed person who resists arrest for the offence of common assault.

In defence of person or property It is a defence to a criminal charge if the act or omission complained of was done or omitted to be done in defence of person or property (see s. 18 PC). If, for instance, the charge is one of assault on a burglar, it is a defence to the charge to show that the assault was committed on the burglar after he had broken into the building and started stealing property from therein. But in such an event, it has been held, the force used must be no more than is necessary to prevent him from doing or cause the intruder to desist from his action (see Uganda v. Muherwa, (1972) EA 466; and Muhumba Kamnya v. Republic, (1984) TLR 325). However, where a person is under attack from another and he acts in selfdefence, and in so defending himself, he inflicts fatal injuries on his attacker, the number of blows or injuries inflicted or the amount of force used does not necessarily detract from such defence. In the case of Mhabi Mtungi V.R. (1973) (EALJ, p. 170) the Court of Appeal quoted with approval the English decision in Palmer v. Reginam (1971) 1 ALL ER 1077) in which it was stated, at page 1088: If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weight to a nicety the exact measure of his necessary defensive action. However, in exercising such defence, only such reasonable force as may be necessary for that defence should be used (see s. 18 B (1) PC). If the force used is excessive, that person is guilty of an offence (see s. 18B(2) PC). In case of excessive use of force in the exercise of self defence, and death results, such person shall be guilty of manslaughter (see s. 18B(3) PC; and Seif Mohamed Senzagala v. Republic, (1994) TLR 122). The right of self-defence or the defence of another or property will be available to the person who, in exercise that right, causes death or grievous harm to another, and the person so acting acts in good faith and with an

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honest belief based upon reasonable grounds that his act is necessary for the preserving of his own life or limb or the life or limb of another or property under cases listed under section 18C(1).

Chapter 11

OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE Contempt of court One of the most important discretionary powers vested in courts for the protection of the authority and dignity of courts and the due administration of justice is the power to punish summarily for the offence of contempt of court. It is, therefore, imperative that magistrates and public prosecutors must be conversant with the elements of this offence, the circumstances in which the court’s discretion may be exercised, and the procedure that should be followed. The Penal Code does not define “Contempt of Court”. All that it does is to describe situations and circumstances in which the offence will be said to have been committed. An Australian Court has defined the offence of contempt of court as: Action or inaction amounting to interference with or obstruction to, or having tendency to interfere with or obstruct, the due administration of justice. (See Re Dunn (1906) Vict. LR 493.) Another lucid definition of contempt of court was given by Lord Russel of Killowen, C.J. in the case of Reg v. Gray (1900) 2 QB 36 in which he said, at page 40: We thought it right to explain a little more fully than is perhaps necessary what does constitute a contempt of court and what are the means which the law has placed at the disposal of the judicature of checking and punishing contempt of court. Any act done or writing published calculated to bring a court or judge of the court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class be-

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longs to the category which Lord Hardwicke L.C. characterised as ‘scandalising a Court or a judge’. Under the provisions of the Penal Code, any person who, within the premises or precincts in which any judicial proceeding is being taken, shows disrespect in speech or manner, to or with reference to such proceedings is guilty of contempt of court. Let us take one example. A enters a court-room in which a magistrate is trying a case, and he then shouts at the magistrate saying: What do you think you are doing up there? You cannot fool us. You are incapable of administering justice because we know that you don’t know what justice is. Stop cheating people! Such a person will, if sane, be guilty of the offence of contempt of court because his conduct shows disrespect to the person conducting the trial and has a tendency to interfere with or obstruct the due administration of justice. Secondly, if a person has been called upon to give evidence in a judicial proceeding and, without good cause, fails to attend or refuses to be sworn, or refuses to answer a question or produce a document, or refuses to leave when ordered to do so, he is guilty of contempt of court. So too if a person causes an obstruction or disturbance in the course of a judicial proceeding. Another situation in which contempt of court will be held to have been committed is where, while a judicial proceeding is pending, a person publishes, prints or makes use of any speech or writing misrepresenting such proceeding or capable of prejudicing any person vis-a-vis the parties to such proceeding, or which is calculated to lower the authority of the person before whom such proceeding is being had; and it is contempt of court to publish a report of proceedings directed to be held in camera. Finally, it is contempt of court to wrongfully influence or interfere with a witness in a judicial proceeding, or to commit any other act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being had or taken (see s. 114(1) PC). The offence is a misdemeanour and is normally triable summarily. In the case of contempt of court within the premises or precincts in which a judicial proceeding is being had, the magistrate need not open a fresh file. The record is kept in the case file in respect to which the contempt has arisen. The procedure to be followed is as follows: when a magistrate has noted that a particular person has committed contempt of court before him, he

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should cause the person to be brought before him. He must then frame and record the substance of a charge, and then call upon that person to show cause why he should not be convicted on that charge, and give him an opportunity to reply. The record should contain an adequate note of the accused person’s reply, if any, as well as the court’s decision (see Odhengo v. Republic (1954) 21 EACA 302; Republic v. Ramadhani Abdallah (1973) LRT n. 49). It is advised that magistrates must use their powers with regard to contempt of court very sparingly. In judicial proceedings there are occasional insults which the magistrate has to put up with. Where tempers rise, the wise thing to do is to adjourn the proceedings for some minutes and then resume later. By then the tempers will usually have subsided. Insults in court between litigants, or between the accused (or his counsel) and the public prosecutor do not necessarily amount to contempt of court, unless they are calculated to lead to a brawl or an uproar and so obstruct or interfere with the course of the judicial proceedings. Similarly, it is not every writing or publication which questions a court’s decision or proceeding that amounts to contempt of court. As Lord Russel said in Gray’s case: Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of Court. On the same point, in Ambard v. Attorney General for Trinidad and Tobago (1936) A.C. 332, Lord Atkin said: But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercised the ordinary right of criticising in good faith, in private or public, an act done in the seat of justice. The path of criticism is a public way; the wrong headed are permitted to error therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

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These two statements were quoted with approval in the case of Republic v. Ramadhani Abdallah (supra), in which the court held that the essence of contempt lies in conduct which tends to bring the authority and administration of the law into disrespect or to interfere with litigation – conduct which is really aimed at scandalising or scurrilously abusing a judge or magistrate, or which lowers the dignity and authority of the court. The Court added that the power to punish for contempt of court should be sparingly used (see also Parashuram Shandasani v. Republic (1945) AC 264).

Destroying evidence This is an offence of common occurrence. The offence is committed when a person, knowing that a particular document, book or thing of any kind will be required in evidence in a judicial proceeding, wilfully destroys, defaces, or in any way makes it undecipherable or incapable of identification, with the intention that it should not be used in evidence (see s. 109 PC). To prove a charge of destroying evidence, therefore, you must prove: (1) that the document, book or thing in question was required in evidence in a judicial proceeding; (2) that the accused person destroyed, defaced, or otherwise rendered it unusable in evidence; (3) that at the time he did so the accused person knew that the thing in question might be required in evidence in a judicial proceeding; and (4) that the accused person destroyed or defaced the same with the intention of preventing it from being used in evidence in a judicial proceeding (see Silvester s/o Malicel v. Republic (1968) HCD 141). I will give one example of a wrong interpretation of the elements of this offence. A few years ago a primary court magistrate convicted a man (a local party official) of the offence of destroying evidence. The facts were that the official had himself arrested a bicycle thief and taken him to court. He also went to the complainant and collected a receipt for the purchase of the bicycle so that the receipt could be used in evidence during the trial of the bicycle thief. The party official gave evidence before the primary court magistrate in the case against the bicycle thief, and on his evidence the bicycle thief was convicted. It transpired, however, that at the time the part official was giving evidence he had misplaced the receipt and it was never found. On these facts the primary court magistrate convicted the witness of the offence of destroying evidence! Such ignorance (or was it?) is as outrageous as it is inexcusable. There was no evidence that the accused had destroyed the document let alone intentionally. Indeed, the evidence was to the contrary.

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Perjury and subornation of Perjury Perjury If a person, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching upon any matter which is in question or is material to that proceeding, or intended to be raised in that proceeding, such person is guilty of the offence of perjury. It does not make any difference whether the testimony is on oath or not; or is written or oral; or that the person who gives the testimony is a competent witness or not; or that his testimony is or would be admissible in the proceeding; or for that matter, that the tribunal is not properly constituted (see s. 102(1) PC). To prove the offence of perjury, therefore, you must prove the following: (1) that the statement made by the accused person was false in fact; (2) that the accused person knew it to be false; (3) that the false statement was material to or touched upon any matter in a judicial proceeding; and (4) that the statement was wilfully made. Whether the statement touched upon any matter or was material to the proceeding is a question of law to be determined by the court or tribunal which is seized of the matter.

Subornation of perjury If a person aids, abets, counsels, procures, or suborns another person to commit perjury, he is guilty of the offence of subornation of perjury (see s. 102(2) PC). What ought to be remembered in respect of offences of perjury and subornation of perjury is that no person can be convicted of any of these two offences without corroborative evidence, and the corroborative evidence must be evidence touching upon the question of falsity of the statement alleged to be false, nor does the mere fact that a person has made two inconsistent statements, itself, establish perjury. It is not enough for the prosecution to show that one of the two statements must be false. The prosecution must prove the falsity of the statement which is the subject matter of the charge (see s. 105 PC).

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Escape from lawful custody Any person who, being in lawful custody, escapes from such custody, is guilty of an offence called escaping from lawful custody (see s. 116 PC). This offence is relatively easy to prove. All you need to prove is that the accused was in lawful custody and that he escaped from such lawful custody. What sometimes bothers public prosecutors is the phrase “lawful custody”. A person who has been arrested by a police officer for an offence is thenceforth in lawful custody of such police officer even before he is actually locked up in a police cell, or court lock-up or remand prison.

Conspiracy to defeat justice and interfere with witnesses Any person who conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert or defeat the course of justice, or, in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as witness from so appearing or giving evidence, or endeavours to do so, is guilty of an offence (see s. 114A PC).

Chapter 12

OFFENCES AGAINST PUBLIC TRANQUILITY, HEALTH AND CONVENIENCE A. Public tranquility Affray Any person who takes part in a fight in a public place commits an offence termed affray (see s. 87 PC). In a charge of affray, therefore, the prosecution must prove the following: (1) that there was a fight; (2) that the accused took part in that fight; and (3) that the fight took place in a public place. These ingredients of this offence were clearly stated in the case of Republic v. Ismael, (1968) EA 609. In that case the accused Ismael was charged jointly with one Tabu Salim. Ismael pleaded guilty to the charge and was convicted. Tabu Salim, however, pleaded not guilty. After the trial, Tabu Salim was acquitted as there was no evidence that she took part in the alleged fight. In fact in her defence she stated that she was the one who was assaulted. When the matter was referred to the High Court for revision or otherwise, the High Court stated, at page 610: It follows that the ingredients of this offence which must be proved are: (1) that there was a fight, (2) that the accused took part in it, and (3) that the fight occurred in a public place. Whatever transpired between Shabani (i.e. Ismael) and Tabu appears to have been in a public place and therefore the third element is not in question in these proceedings. The main point is whether there was a “fight” and if so, whether the accused took part in it. I presume that one must fall back on the old adage that it makes two to make fight. At any rate, I think the word implies a combat of two or more persons in such a manner as to cause a breach of the peace. The conviction of Ismael was quashed on the ground that the evidence did not establish clearly that there was a fight and the “facts” to which Ismael pleaded guilty might not have been true.

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Abusive language Any person who uses obscene, abusive or insulting language to another person in such a manner as is likely to cause a breach of the peace is guilty of an offence (see s. 89(1)(a) PC). To prove this offence, you must establish the following: (1) that the accused used language that was obscene, abusive or insulting, (2) that those words were uttered by the accused to another person, and (3) that they were likely to lead to a breach of the peace. The third element of this offence is the one that causes some difficulty in practice. It is not enough to prove that the words were uttered and that they amounted to obscene, abusive or insulting language if they were uttered to no particular person, or if no one could reasonably have said that they referred to a particular person or persons. The prosecution must go further and prove that the language was uttered to a particular person or persons and that the words were uttered in such circumstances as was likely to lead to a breach of the peace, in the sense that it was in such circumstances as would have caused the person or persons to whom the words were uttered or others present to act in a manner that would have caused a breach of the peace (see Republic v. John Augustino, (1967) HCD n. 61; Republic v. Nelson and Another, (1972) HCD n. 181; Republic v. Tilubanya Mwishaki and Others, (1983) TLR 422; and John Sima v. Republic, (1981) TLR 51).

Brawling A person who brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace, is guilty of an offence (see s.89(1)(b) PC). From the language used, this offence has the following ingredients: (1) that the accused brawled, that is, that he engaged in a noisy quarrel; (2) that the brawling was such as was likely to cause a breach of the peace; and (3) that the place in which he brawled did have other persons. If a person utters angry words to himself in the presence of no other persons, such conduct does not amount to the offence of brawling because, in such a case, there is not likely to be a breach of the peace. The nature of the offence presupposes that there are other persons present. If, for example, a man were to enter a bar and angrily demanded to be given beer free of charge or else he would set the building on fire, and such conduct created fear or panic among those people present in the bar, such a person would be guilty of brawling.

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Going armed in public Any person who goes armed in public without lawful excuse and in such a manner as to cause terror to any person, is guilty of an offence (see s. 84 PC). What you need to prove here are the following: (1) that the accused was armed; (2) that he went so armed in a public place; (3) that he had no lawful excuse to do so; and (4) that it was in such a manner as to cause terror to some person. Of the four elements of this offence, it is the fourth one which presents some difficulty in practice. Masais often go armed with their sticks or even spears in public. But as people are not driven to terror thereby, no one dreams of charging them with this offence. The central element of this offence is whether the manner in which the accused went so armed in public was such as to cause terror to some person.

B. Offences against health and inconvenience Sale of noxious food or drink If a person sells, offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for human consumption, when he knows or has reason to believe that the same is noxious as food or drink, he is guilty of an offence (see s. 181 PC). This offence has three ingredients, namely, (1) that the accused sold, offered or exposed for sale food or drink; (2) that such food or drink had become noxious as food or drink and so in a state unfit for human consumption; and (3) that the accused knew or had reason to believe that the same was noxious as food or drink. It is immaterial whether or not the article became noxious by reason of the deliberate or negligent act of the accused. This offence differs from that of adulteration of food or drink intended for sale (see s. 180 PC) in which it is necessary to prove that the noxious article was adulterated by the accused. Similar to this are the offences of adulteration of drugs, and fouling air or water (see ss. 180–185 PC).

Negligent act likely to spread infection Any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life, is guilty of an offence (see s. 179 PC). What has to

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be proved here is (1) that the accused unlawfully or negligently did some act which was likely to spread the infection of some disease dangerous to life; and (2) that he knew or had reason to believe that such act was likely to spread the disease. What the words “dangerous to life” mean is not clear. If, say, the disease in question is scabies, which normally affects just the skin and is normally not dangerous to life, it would seem that the section would not apply. There are so many diseases which affect “health” but are not dangerous to life. These would appear to be outside the purview of this section.

Rogues and vagabonds Every person who has been convicted of the offence of being idle and disorderly (under s. 176 PC); every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any kind under any false or fraudulent pretence; every suspected or reputable thief who has no visible means of subsistence and cannot give a good account of himself; and every person found in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place (not being a recognized place of religious worship) at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose, is deemed to be a rogue and vagabond, and so is guilty of an offence (see s. 177 PC). In the case of Juma s/o Abdallah v. Republic, (1967) HCD n. 396, it was held: The gravamen of a charge of being a rogue and vagabond is the presence of the accused for an illegal or disorderly purpose. It is not, therefore, enough to prove that the accused person is a “reputed thief ” or “a suspected person”. In the case of Rex v. Mtambala, 1 TLR (R) 29, the facts were that the accused was charged as a “reputed thief ” and was convicted of “being a suspected person with no visible means of subsistence who cannot give a good account of himself ”. The evidence was that the accused was penniless and out of work, and the magistrate held that “his present mode of living was ‘not good’” and that “the accused’s record (he had two previous convictions) was a bad one.” In revision, the High Court stated, at page 30: Assuming the accused is rightly held to be “a reputed thief ” or “a suspected person”, a conviction under section 167(3) (now section177 (3))

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would lie only if the considerations (a) of inability to prove the source of his livelihood and (b) of inability to account for himself in the circumstances in which he was found...indicate that the suspicion that he is sustaining himself dishonestly attaches to him. If this were not so, gaols might be full of persons whose misfortune it was to be without work and money, a predicament in which many an honest man may find himself to be. Nor is it enough to prove merely that the accused has no visible means of subsistence or that he is a man of no fixed abode. As was pointed out in the case of Hamisi Juma v. Republic, (1968) HCD n. 469, under section 177(3) of the Penal Code, the accused must be “a suspected thief ” or “reputed thief ”, and he must fail to give an account of himself in such circumstances that the suspicion that he is sustaining himself dishonestly would attach to him. The Court added that mere homelessness is not roguishness (see also Omari Ramadhani v. Republic, 2 TLR (R) 118; and Juma Bakari v. Republic, (1985) TLR 175).

Chapter 13

OFFENCES AGAINST MORALITY Rape The passing of the Sexual Offences (Special Provisions Act), 1998 has somewhat changed the landscape of offences against morality. Foremost in the changed landscape is the definition of “rape” and elements thereof as well as the prescribed sentences; and a few more offences have been created under this heading.

Elements of the offence of rape Section 130 of the Penal Code provides that a male person commits the offence of rape in any of the following circumstances: 1. if he has sexual intercourse with a woman who is not his wife or, being his wife, who is separated from him, without her consent at the time of the sexual intercourse; 2. if he has sexual intercourse with a woman with her consent where such consent is obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; 3. if he has sexual intercourse with a woman with her consent when such consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by any drugs, matter or thing, administered to her by him or by some other person unless it is proved that there was prior consent between the two; 4. if he has sexual intercourse with a woman with her consent when he knows that he is not her husband, and that such consent is given because the woman believes that he is her husband. A person is also said to commit rape if he has sexual intercourse with a woman, with or without her consent, when she is under 18 years of age, unless she is his wife and she is 15 or more years of age with whom he has not separated. It is also an offence where a person being in position of authority, or being on the management or staff of a remand home or other place of custody of

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women or children’s institution, or being on the management or the staff of a hospital, or being a traditional healer, or being a religious leader, takes advantage of such position or wrongfully restrains a woman or girl and commits rape. Subsection (4) of section 130 of the Act provides that penetration, however slight, is sufficient to constitute the offence of rape; and that evidence of resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without the woman’s consent. The term “woman” is defined in section 129 of the Act as meaning any female person irrespective of age, unless the context otherwise requires or otherwise expressly provided. Separation need not be judicial separation for purposes of this offence. Spouses are deemed to be lawfully separated even if the separation is arranged by the family or clan members (see s. 130(5) PC).

Punishment for rape A person found guilty of the offence of rape is liable to be sentenced, except in certain circumstances, to life imprisonment, in any case for imprisonment of not less than 30 years with corporal punishment and fine and will be ordered to pay compensation to the victim for injuries caused to her. However, if the accused is a boy of 18 years or less, and a first offender, he is liable to be sentenced to corporal punishment only, or to a term of 12 months imprisonment with corporal punishment in the case of a second offender; or to life imprisonment if he is a third time offender and recidivist offender. If, however, the rape is committed to a girl under the age of 10 years, such an offender must be sentenced to life imprisonment whoever the accused may be (see s. 131 PC).

Gang rape This offence is committed when the rape is committed by one or more persons in a group of persons. In such a case, each of them must be sentenced to life imprisonment regardless of the actual role he played in the commission of the offence.

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Attempted rape Any person who attempts to commit rape commits the offence of attempted rape and is liable to the same punishment as if he had committed the offence of rape except in certain circumstances as discussed below. A person commits attempted rape,if, with intent to have prohibited sexual intercourse with any girl or woman, he manifests his intention by 1. threatening the girl or woman for sexual purposes; 2. being a person of authority or influence in relation to the girl or woman, applying any act of intimidation over her for sexual purposes; 3. making any false representations to her for the purposes of obtaining her consent; and 4. representing himself as the husband of the girl or woman which puts the girl or woman in a position where, but for the occurrence of anything independent of that person’s will, she would be involuntary carnally known. If the offence of attempted rape is committed by using threats or the use of a person’s authority to intimidate her, such person is liable on conviction to a sentence of imprisonment of not less that 10 years (see s. 132 PC).

Abduction Any person who, with intent to marry or have sexual intercourse with a woman of any age, or to cause her to be married or to have sexual intercourse with any other person, takes her away or detains her against her will, is guilty of the offence of abduction and is liable on conviction to a sentence of 7 years imprisonment (see s. 133 PC). It is also an offence where any person unlawfully takes an unmarried girl under the age of 16 years out of the custody of her parent or guardian against the will of such parent or guardian (see s. 134 PC).

Sexual assault and indecent assault on women If a person, with the intention to cause any sexual annoyance to any person, utters any word or sound, makes any gesture or exhibits any word or object intending that such word or object will be heard or seen by such other person, commits the offence of sexual assault. If the charge for this offence re-

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lates to a boy or a girl under the age of 18 years, it will be no defence to the charge that the boy or girl consented to the act of the accused (see s. 135 PC).

Defilement of imbeciles or idiots If a person, knowing a woman to be an idiot or imbecile, has or attempts to have unlawful sexual intercourse with her in circumstances not amounting to rape, is guilty of an offence of defilement of an idiot or imbecile (see s. 137 PC).

Defilement by husband of wife under the age of 15 years A person who is married to a woman under the age of 15 years and has or attempts to have carnal knowledge of her with or without her consent is guilty of the offence of defilement of a wife by husband (see s. 138 PC).

Acts of gross indecency Any person who commits or is party to committing or procures the commission of any act of gross indecency to another person, be it in public or private, is guilty of an offence and is liable on conviction to imprisonment for not less than 1 year. But if the offence is committed by a person of 18 years of age or more, to a person under the age of 18 years or to a primary school pupil or a secondary school student, the punishment will be not less than 10 years with corporal punishment and an order of compensation (see s. 138A PC).

Other offences of sexual morality Other sexual acts that are criminalised include procuration for prostitution, trafficking of persons, procuring rape, detention in any place or brothel against a woman’s will for the purpose of having sexual intercourse with any man, keeping a brothel, and unnatural offences (see ss. 139, 139A, 143, 148 and 154 PC).

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Incest by males or females An offence that deserves some mention is the offence of incest by males or females. It is an offence for any male person to have prohibited sexual intercourse with a female person who is, to his knowledge, his granddaughter, daughter, sister or mother (see s. 158 PC). It is no defence to this charge that the girl or woman consented to the sexual intercourse. Likewise, it is an offence for any female person of or above the age of 18 years who, with consent, permits her grandfather, father, brother or son to have carnal knowledge of her while she is aware of such relationship.

Chapter 14

OFFENCES INVOLVING BODILY INJURY Grievous harm If a person unlawfully causes grievous harm to another, he is guilty of the offence of causing grievous harm (see s.225 PC). The expression “grievous harm” is defined in section 5 of the Penal Code as meaning any harm which amounts to a maim or dangerous harm, or harm which seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense; and “dangerous harm” is defined in the same section as meaning harm which endangers life. To prove this offence, therefore, you must adduce evidence to prove (1) that the accused caused grievous harm to the complainant; (2) that he did so unlawfully; and (3) that he did so intentionally.

That the accused caused grievous harm The two essential things here are evidence of the identification of the accused, be it direct or circumstantial, and that the harm amounted to grievous harm within the definition of the term. A wound two inches deep and caused by an arrow has been held to amount to grievous harm (see Republic v. Mipaa, (1968) HCD n. 265). Generally a medical report (usually on a PF 3) will be a guide to the public prosecutor in deciding whether or not the harm amounts to grievous harm. But it is for the court to determine whether the harm is grievous harm or not, and the prosecutor’s duty is to adduce evidence on which the court will reasonably come to the conclusion that the harm amounted to grievous harm.

That the accused intended to cause such harm The existence on the part of the accused of an intention to perpetrate harm is an essential element of the offence of causing grievous harm. No amount

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of mere negligence or lack of care on the part of the accused will suffice to prove the offence. In the case of Maulid Yusufu v. Republic, (1967) HCD n. 70, the accused was charged with the offence of doing grievous harm. The evidence showed that the wounding was caused when the accused was showing a firearm to his friend, the complainant, and the weapon discharged. It was held that the offence was not proved. So, where in a case of doing grievous harm the evidence and other circumstances suggest pure accident or negligence on the part of the accused and there is nothing from which to infer intention, a public prosecutor should expect an acquittal or possibly a substituted lesser offence. But there are cases where the accused, intending to cause grievous harm to A, causes such harm to B. In such cases it is no defence to the accused to say that he did not intend to do harm to B but he intended to do such harm to A only that B came in the way of the blow. The more difficult cases are where the grievous harm caused is not caused directly by the act of the accused. The case of Republic v. Msungwe, (1968) EA 203, is a good example. In that case the facts were that the accused first assaulted the complainant and then chased him with a knife. Whilst running away from the accused, the complainant tried to jump over a furrow but fell and broke his leg. The accused left him lying semi-conscious. Eventually the complainant was found and taken to hospital where he spent 5 months and his leg had to be amputated. The accused was convicted of doing grievous bodily harm. In revision, a question arose as to whether the conviction could be supported when the injury to the complainant was not caused directly by the accused. The Court applied the principle laid down in the case of Republic v. Halliday, (1889) 61 LT 701, in which it was held that where one person creates in the mind of another person such an immediate sense of danger that such other person is made to endeavour to escape, the person who created such a state of mind is responsible for any injuries which may result from his acts to the person endeavouring to escape.

That the harm was caused without lawful excuse It is not enough for the prosecution to prove that the accused caused grievous bodily harm and that he intended to cause such bodily harm. If, that were the law, doctors would find it impossible to do their work. Indeed, even the police would in certain cases be hampered in the performance of their duties. A public prosecutor, therefore, must go further and lead evidence to

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prove that the accused caused such harm without lawful excuse. If, for instance, the grievous harm is caused by a police officer in the course of effecting an arrest of an armed robbery suspect, such police officer is not guilty of this offence. But if a doctor were to damage the uterus of a pregnant woman in the course of attempting to do an illegal abortion, that would be an offence of causing grievous harm, provided the harm amounted to grievous harm.

Unlawful wounding Any person who unlawfully wounds another is guilty of an offence (see s. 228 PC). The term “wound” is defined in section 5 of the Penal Code as meaning any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior (for the purposes of this definition) which can be touched without dividing, or piercing any other membrane. The elements of this offence are similar to those of causing grievous harm. The two differ in two respects: grievous harm, as we have seen, entails that the harm done must be serious. But unlawful wounding merely requires that there must be a wound within the definition of that term. Secondly, while the offence of unlawful wounding requires evidence to prove that there was an incision or puncture of an “external membrane of the body”, the offence of causing grievous harm is somewhat wider in the sense that it includes injuries to the external or internal organ of the body. But in all other respects the two offences are similar. It should be noted too that the two offences include cases where the harm or wound is caused by the use of any poison or other noxious thing.

Assault causing actual bodily harm This offence, created by section 241 of the Penal Code, is in certain respects similar to that of unlawful wounding, and in the majority of cases the public prosecutor will have some difficulty in deciding whether to prefer a charge of unlawful wounding or assault causing actual bodily harm. There is, however, some difference. In a charge of unlawful wounding, you have to prove that an exterior organ, member or sense of the body was incised or punctured. But the offence of assault causing actual bodily harm is more general in the sense that the harm means any bodily hurt, disease or disorder whether permanent or temporary (see s. 5 PC).

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The defences to a charge of assault causing actual bodily harm are similar to those for unlawful wounding. Assault as a result of consent, accident, or assaults which are legally justifiable do not amount to an offence. It is also a defence to such charges that the accused did the act in self-defence; but such bodily harm must not be excessive (see Saidi Abdallah v. Republic (1968) HCD n. 274). One more point: provocation, it has been held, is no defence to a charge of assault or related offences (see Hassan v. Republic, (1971) HCD n. 274).

Common assault Common assault may be defined as an attempt to commit a forcible crime against another, or the actual commission of a battery. In the majority of cases it is an actual battery. A typical example is where the accused slaps another without lawful excuse and no actual bodily harm results (see s. 240 PC). From the authorities it would appear that to prove this offence, the prosecution must prove the following: (1) that the accused touched or attempted to hit, touch, or commit a forcible crime against the complainant, and (2) that such act was unlawful. In the case of Republic v. Rev. Father John Rwechungura, (1972) HCD n. 168, it was held that the act will be said to be an unlawful assault if it is done in an angry, revengeful, rude, insolent or hostile manner; that is, that the accused acted so with an evil mind.

Chapter 15

THEFT AND ALLIED OFFENCES Cases of theft account for quite a substantial percentage of cases tried in subordinate courts. It is, therefore, imperative that a public prosecutor should have a reasonably intimate knowledge of this and allied offences. Fortunately, the Penal Code provides an almost exhaustive definition of what constitutes theft. Besides, there is a large body of decided cases on the subject which a public prosecutor can consult where he finds the statutory provisions either inadequate or incomprehensible.

Theft Section 258(1) of the Penal Code defines theft as the fraudulent taking, without claim of right, of anything capable of being stolen, or the fraudulent conversion to the use of any person other than the general or special owner of such thing. Subsection (2) of that section lists situations in which the offence will be said to have been committed. From those provisions, we find the following elements of the offence of theft: (1) that there was a thing capable of being stolen within the definition of that phrase in section 257 of the Code; (2) that there was a conversion or a taking, that is, that the thing was actually moved or caused to be moved; and (3) that the accused did so with a fraudulent intent.

Was it a thing capable of being stolen? Section 257 of the Penal Code lists things that are capable of being stolen. Among these are all moveable inanimate things which are the property of another, tame animals, and dead bodies of wild animals. What is important to bear in mind is that the thing alleged to have been stolen is moveable or can be caused to move, and is the property of some person. Land and houses, for example, being immoveable things, are incapable of being stolen.

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That there was a taking In a charge of theft, it is essential to prove that the thing alleged to have been stolen was moved or caused to be moved. In other words, it must be proved that there was asportation. Where, for example, a pick-pocket dips his hand into the coat pocket of another and holds that other’s purse but is caught before he moves it out, he is not guilty of theft because there has been no “taking” or asportation. He could, however, be convicted of attempted theft. If, however, he moves it from the pocket but is caught before he moves away with it, then he is guilty of theft because there has been an asportation (see Rwenzola v. Republic, (1971) HCD n. 312).

That it was with a fraudulent intent and without claim of right A person is deemed to have taken anything with a fraudulent intent if there is evidence to prove: (a) that he did so with an intent to permanently deprive of it the general or special owner of the thing; or (b) that he did so with an intent to use the thing as a pledge or security; or (c) that he did so with an intent to part with the thing on condition as to its return which the person taking or converting it may be unable to perform; or (d) that he did so with an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time he took or converted it; or (e) in the case of money, an intent to use it at the will of the person who takes it or converts it, although he may intend afterwards to repay the amount to the owner (see s. 258(2) PC). A few decided cases may help to illustrate the application of these provisions. In the case of Saidi Ally v. Republic, (1968) HCD n. 98, the accused entered a truck and sorted through its contents picking out what he desired. Just about when he was to depart, the owner arrived and locked him in the motor vehicle. The accused was then charged with the offence of stealing from a motor vehicle. The High Court held that although the asportation requirement for a conviction for simple theft is fulfilled by any movement of the item involved, here the charge was the graver one, and that for a conviction for this offence it must be shown not merely the items were moved, but that they were removed from the vehicle. In the case of Issa Mwandachi v. Republic, (1967) HCD n. 414, the evidence against the accused was that he was seen inside a house and was apprehended before he could flee. Shs. 10/- worth of groundnuts were found

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wrapped in some clothes somewhere in the house and it was found that he had stolen them. On appeal, the High Court held that there was no evidence that the bundle of groundnuts had been moved from one place to another by the accused, and so the charge of stealing was unsupported by the evidence. In the case of Ladislaus s/o Lukasi v. Republic, (1968) HCD n. 112, the accused was found with a shortage when his TANU Youth League accounts were checked by the Area Commissioner. He admitted having taken the money and said he was ready to refund it. It was held that that was theft regardless of his intention to refund the money. In the case of Lerunyani v. Republic, (1968) EA 107, a passer-by saw the accused sitting outside a cattle boma. On inquiring about buying a cow in the boma, the accused told the passer-by that the cattle were owned by him (the accused) and the accused agreed to sell the cattle to the passer-by for Shs. 40/- and five goats for it. No sooner than the money changed hands than the owner of the cattle came to the scene, and so the transaction ended. The trial court convicted the accused of stealing the cow. On those facts, the Kenya High Court held that the conviction for stealing of the cow on those facts was bad because there had never been a taking of the cow. Answering the question whether there had been a conversion, the Court held that there was no conversion of the animal at all because, the Court stated, at page 108: . . . there must yet be a conversion, and that word used in this context we think implies at least an act which results in a turning about, a change, in the control of a thing in the ownership of a thing or in the possession of a thing . . . There was no delivery of the cow, and absolutely nothing happened either in law or in fact, to the eye of a lawyer or to the eye of a layman, except the transfer of Shs. 40/- from Kale’s (the passer-by) pocket to that of the appellant. Emphatically, Kale never got the use of the cow. There is one more point which the public prosecutor ought to remember. As we have seen earlier, it is a complete defence for an accused if he can show that in taking or converting the article that is said to have been stolen, he honestly believed that he had a claim of right to the article. There must, however, be an honest belief, however unfounded in fact, by the taker that he has the right to take the thing and keep it (see Sewava v. Uganda, (1966) EA 487; and Salum Athumani v. Republic, (1991) TLR 137).

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Stealing by servant This offence, like that of stealing by public servant (s. 270 PC), is essentially the same as that of simple theft. The two only differ in one respect. In stealing by servant, you must prove that the accused was a servant, and that the thing he is alleged to have stolen was the property of his employer, or it came into his possession by virtue of his employment or on account of his employer (see s. 271 PC). Let us look at one case to help shed some light over these provisions. In the case of Gakubu v. Republic. (1968) EA 395, the facts were that the appellant was a bus conductor. Two police officers entered the bus at Kabete and were going to Kariobangi. The correct fare for that journey was shs. 1/50. In the course of the journey one of the police officers gave the accused shs. 1/50 and the appellant issued two tickets worth shs. 1/50 and gave them to him. When the second police officer gave the appellant shs. 1/50 as his fare, the appellant issued two tickets for shs. 1/30 and gave them to the police officer together with -/10 cents piece. It was held that the appellant had stolen -/10 because he received shs. 1/50 on behalf of his employer yet at the end of the day, he accounted for only shs. 1/30 (see also Christian Mbunda v. Republic, (983) TLR 340).

Stealing by public servant In a charge of stealing by public servant, the prosecution must prove, in addition to the elements of theft, that the accused is a person employed in the public service, and that the thing stolen is the property of the Republic, or that it came into his possession “by virtue of his employment” as a public officer. If, therefore, a public servant steals anything in his conduct of his private affairs which are unconnected with his office, that would appear to be simple theft (see s. 270 PC). The interpretation of the phrase “by virtue of his employment” has been a subject of controversy in some cases. In some cases it has been held that the phrase refers to acts falling within the performance of his duties (see Francis Kitana v. Republic, (1967) HCD n. 224; Ramadhani Athumani v. Republic, (1968 ) HCD n. 110 and Kessy v. Republic, (1970) HCD n. 89). However, there are some decisions which have somewhat widened the interpretation of the expression. In the case of Yesaya Gweseko v. Republic, (1970) HCD n. 160, the High Court (Biron, J.) stated:

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I am not persuaded that the narrow construction put on the expression “by virtue of his employment” by the English authorities should be followed in this country. Accordingly, with respect, I must differ from the decision by Spry, J. and hold that in the circumstances of this instant case, the appellant received the monies by virtue of his employment as a prison officer, that is, a servant of the Government. In the case of Vincent Mapunda v. Republic, (1970) HCD n. 227, Georges, C.J., said: The appellant was also a public servant. He could not, however, be convicted of stealing by a public servant unless the theft had taken place in the course of the performance of his duties as a public servant or unless the opportunity for theft had arisen because he was a public servant. In the case of Republic v. Nicholas Bungoma, (1972) HCD n. 204, Makame, J. (as he then was) was even more emphatic. He said: In the broad spirit of our day and considering the evil aimed at by the law, I think the words should be interpreted less narrowly, to include situations in which an accused person criminally comes by a thing which he would not have come by but for the semblance of his office. It is submitted that the law should be as stated in Bungoma’s case (supra). The phrase “person employed in the public service” is defined in section 5 of the Penal Code. As in stealing by servant, the prosecution must prove the fact of employment beyond reasonable doubt (see Rajabu s/o Mbaruk v. Republic, (1962) EA 669). One more point: in a charge of stealing by servant or by public servant, it is not enough to prove mere shortage, or merely that the accused person was negligent in the performance of his duties as a public servant. There must be evidence that the accused stole the money. In other words, animus furandi or fraudulent conversion must be proved (see Jackson Sumuni v. Republic, (1967) HCD n. 369). A matter which sometimes causes some difficulty in cases of theft and allied offences is the interpretation of the word “fraudulently”. As stated in the definition of theft in section 258 of the Penal Code, particularly with regard to paragraph (e) of subsection (2) of that section which provides:

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(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to say, (e) in the case of money, an intent to use it at the will of the person who takes or coverts it, although he may intend afterwards to repay the amount to the owner. Two cases will help to show the difficulty that may arise in interpreting these provisions. In the case of Anthony De Mello v. Republic, TLR (R) 332, the appellant, a postal clerk, took shs. 176/36 from his cash-in-hand a few hours before he was paid his salary and used it for his own use. A superior officer checked the appellant’s accounts just after the appellant had taken the money and discovered the shortage. Asked for an explanation later on the same day, the appellant said that he had never intended to steal the money as he had intended to pay it back later in the day after receiving his salary. He added that he thought he had a right to take part of his salary as it was pay-day and would make good the deficiency by drawing the balance from his salary. By then he had already made good the deficiency. He was convicted by the subordinate court. Dismissing the appeal, the High Court stated: There is, in my opinion, no substance in the submission that, as it was pay-day, the appellant was entitled to pay himself his salary out of his cash-in-hand and that by taking the money before he was authorised to do so he committed merely a departmental instruction. The fact that his salary was payable that day gave him no right whatever to take it out of money which he held on behalf of the Post Office. Until he was given authority to pay the salaries and was given the salary vouchers he was not entitled to appropriate any Post Office funds to his own use. In the case of Yusuph Salim Mkali v. Republic, (1969) HCD n. 264, the appellant was charged with stealing by servant. He was the Regional Executive Officer of TANU at Songea and on 7/8/68 was entrusted with shs. 695/for repair of the Party’s Landrover. The mechanic refused to take the money until he had made an estimate as to the probable cost of the repairs. When the appellant returned to his office, he received permission from his Headquarters in Dar es Salaam to proceed to Morogoro to see his sick child. There was at the time no superior officer of the Party at Songea. So he decided to use part of the shs. 695/- to pay his fare to Morogoro. On arrival at Morogoro he spent more of the money. On 13/9/68 he reported to accounts section at the Party Headquarters that he had used the money. It was

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then decided and agreed that the whole sum would be deducted from the appellant’s salary for December, 1968. This was done. But on 14/2/69 the appellant was charged with stealing that same money and was convicted. Allowing the appeal, Georges, C.J. stated: In my view it must be borne in mind that theft must inevitably carry with it a connotation of fraud. After quoting section 258 (1) of the Penal Code, His Lordship went on: In this case, on the facts put forward by the defence it seems clear that appellant felt that he would have obtained the permission to use the money in the circumstances which had arisen. He reported to the Headquarters of TANU that he had done so. No steps were taken against him. He was allowed to remain in the employment of TANU and he was allowed to go on leave. Arrangements were made to have the money deducted from his pay at his convenience and the money was in fact deducted. I find it impossible in these circumstances to hold that there was a fraudulent taking. His Lordship concluded: If there was specific instructions that money must not be used other than for the purposes for which they have been given then obviously an employee will not be able successfully to advance in his defence a belief that he would subsequently have obtained authority. In this case the reasonableness of the appellant’s belief was justified by the action taken afterwards in treating the amount as a debt and having it deducted from his salary. From these two cases it would appear that whether a particular taking of money was fraudulent or not will depend on the circumstances of each case and the intention of the accused. It has also been held that a mere shortage does not suffice to prove the case of stealing by servant (see Simon Kilowoko v. Republic, (1989) TLR 159).

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Stealing by agent A person is said to be guilty of the offence of stealing by agent where the person steals (1) property which has been received by him with a power of attorney for its disposition; (2) property which has been entrusted to him to retain in safe custody or to apply, pay or deliver for any purpose or to any person the whole or any part of it or any proceeds thereof; (3) property which has been received by him for or on account of any other person; (4) the whole or part of proceeds realised from the disposition of any property which have been received by him as an attorney requiring him to apply the said proceeds in a particular manner or to pay the same to a specified person; or (5) the whole or part of proceeds of any valuable security which has been received by him with a direction that the proceeds thereof should be applied to any purpose or paid to any specified person (s. 273 PC).

Receiving or retaining stolen property A person who receives or retains any chattel, money or valuable security or other property whatsoever, knowing or having reason to believe the same to have been feloniously stolen, taken, extorted, obtained or disposed of, is guilty of the offence of receiving or retaining stolen property (s. 311(1) PC). In order to prove this offence, the prosecution must prove: (1) that there was a chattel, money, etc. which the accused received or retained; and (2) that the accused knew or had reason to believe that it was stolen or feloniously obtained. It is not necessary to prove that the accused was in physical possession of the article in question. It is enough if it is proved that the accused exercised control over it, or over the person who had actual possession. But there must be satisfactory evidence showing that the property was in fact stolen or unlawfully obtained, and that the accused knew or had reason to believe that this was the case (see Alli s/o Ramadhani v. Republic (1968) n. 430). This does not necessarily mean that the owner of the property should be identified, or that there should be direct evidence of theft. The circumstances under which the accused person received or possessed the articles may prove that it was stolen and that the accused knew this to be so. In order to prove that the accused knew or had reason to believe that the article in question was stolen or unlawfully obtained, the prosecution should adduce evidence to show, for instance, that when interrogated in connection therewith, the accused offered no explanation, or that he denied being

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found in possession of it, or that he took part in the disposal of it in an unusual manner. Knowledge on the part of the accused may also be proved by adducing evidence to show that the accused hid the article, or that he offered it for sale at an unreasonably low price. Even the manner in which the accused conducted himself at the time he was found in possession of the article, such as abandoning the article and attempting to run away, may all tend to indicate inferentially that the accused knew or had reason to believe that the goods were stolen or unlawfully obtained. In the case of Idi s/o Waziri v. Republic, (1961) EA 146, the appellant was convicted of receiving four bags of coffee, but there was no direct evidence to prove conclusively the theft or ownership of the stolen goods. The appellant had offered to sell the bags of coffee to a police inspector at well below the market price and showed the inspector the way to a maize field where the goods were hidden. The appellant then saw a police party and run away, but the goods were later found among the maize, a short distance from the appellant’s shop but there was no evidence how the goods were received by the appellant. On appeal, the issue was whether the circumstances in which the appellant was in possession of the stolen goods were sufficient to prove that the goods were stolen and that the appellant knew or had reason to believe that the goods were stolen. The Court held that the conviction was sound, and said, at page 149: Evidence that the property is bought at a price very much below the market price is sometimes an indication of guilty knowledge in the buyer. The fact of a sale of property by a person at a price very much lower than the market price sometimes similarly tends to indicate inferentially that the latter person himself had acquired it illicitly and had guilty knowledge. The Court went on: In my opinion the learned resident magistrate came to the right conclusion in finding that the circumstances in which the appellant was found in possession of the coffee, and the circumstances in which he attempted clandestinely to sell it and his subsequent denial of knowledge, or possession, of it, irresistibly pointed to the fact that the appellant received the coffee knowing it to have been stolen. (See also Peter Mtengo and Others v. Republic, (1994) TLR 112; Mazuruku Hamisi v. Republic, (1997)TLR 1; and George Mingwe v. Republic, (1989) TLR 10.)

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Conveying or being in possession of suspected stolen property If a person who has been detained by a police officer in exercise of powers conferred on a police officer by section 25 of the Criminal Procedure Act is found in possession of, or conveying in any manner anything which may reasonably be suspected to have been stolen or otherwise unlawfully acquired, he may be charged with the offence of being in possession of, or conveying or having control over property suspected to have been stolen or otherwise unlawfully acquired. If he fails to satisfy the court that he did not steal or otherwise unlawfully acquire the property, he will be guilty of the offence (see S. 312 (1) (a) PC). The first ingredient of this offence is the detention of the accused person by a police officer under powers conferred on him by section 25 of the Criminal Procedure Act. That section vests in a police officer of any rank the power to stop, search, or detain any vessel, boat, aircraft, or vehicle if he has reason to suspect that anything stolen or unlawfully obtained may be found in or on it. He may also stop, search, or detain any person who may reasonably be suspected of having in his possession or conveying in any manner anything stolen or unlawfully acquired (Charles s/o Mumba v. Republic, (1967) HCD n. 221). The second ingredient of this offence is that the thing should be found in possession of the accused or that the accused should be shown to have been conveying it at the time of his detention by a police officer. The third ingredient is that the thing should be something reasonably suspected of having been stolen or unlawfully acquired. When these ingredients have been established by the prosecution, it will then be for the accused to satisfy the court that he did not steal the article or unlawfully acquire it (see Alli Ramadhani v. Republic, supra). In order to negate innocent possession, the prosecution could adduce evidence of the conduct of the accused at the time he was found in possession of the article in question if such conduct is inconsistent with innocent possession. Denial of possession, an attempt to destroy the article, or an attempt to run away, may all inferentially tend to negate innocent possession. In addition to cases in which the accused is detained or searched under the provisions of section 25 of the Criminal Procedure Act, any person is guilty of an offence if found by any police officer of or above the rank of inspector in possession of or having control over any property which may, having regard to the circumstances , be reasonably suspected of having been stolen or otherwise unlawfully acquired, and such person fails to satisfy the court that he did not steal or otherwise unlawfully acquire it (see s. 312(1)(b) PC).

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In a charge of this offence, it is not necessary to prove that the accused was conveying, or that the police officer acted under powers conferred by section 25 of the Criminal Procedure Act. But it is necessary to show that the police officer was of or above the rank of inspector. In both of these situations, the accused has to satisfy the court that he did not steal or otherwise unlawfully acquire the property. He will have failed to satisfy the court if, for instance, he gives no account to the court as to how he came by the said property, or if he gives an account which is so inherently improbable as to be unreasonable or which the prosecution has rebutted. If, on the other hand, he gives an account which might reasonably be true and which is consistent with innocent possession, he will be entitled to an acquittal. The section does not require him to prove that he came by the property honestly (see Lerai v. Republic, 1 TLR (R) 366). This principle was re-iterated in the case of Kiondo Hamisi v. Republic, (1963) EA 209. The expression “unlawfully acquired” in this section means acquired in circumstances which constitute a criminal offence under any written law. And also means any consideration or proceeds from the sale, barter or other disposition of any property unlawfully acquired; or by way of purchase with funds, the whole or any part of which was so unlawfully acquired. If in the course of a trial on a charge under this section, the evidence shows that the accused could have been convicted of theft or such like offence in respect of the property, then that alone will not entitle him to an acquittal. But once he has been convicted of an offence under this section he cannot be prosecuted for stealing or other like offence in respect of the same property.

Conversion not amounting to theft Any person who unlawfully and without colour of right, takes or converts to his own use, but in circumstances which do not amount to stealing, any draught or riding animal, vehicle, cycle or vessel, commits the offence of conversion not amounting to theft (see s. 284 PC). From the wording of the section, it should be clear that this offence falls short of the offence of theft in that there is no intention on the part of the accused of keeping the article permanently, and no intention of using it as a pledge or security. All there is is the unlawful taking or conversion without the other elements which would make the taking or conversion an offence of theft. One more point: the section refers to moving or movable objects, and specifically refers to draughts or riding animals, cycles or vehicles. In the

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case of Henry Ebrahim v. Republic, (1972) HCD n. 178, the accused removed a battery from the complainant’s car in order to test the engine of his own car. The High Court held that he was not guilty of conversion not amounting to theft because a battery is not one of the moving objects covered by the section.

Occasioning loss to government or parastatal organization This offence was created as a result of increasing thefts and losses caused by employees in Government and public corporations. It would appear that it was intended to cover situations in which a charge of theft or fraudulent conversion may not be easy to prove. The provisions of the section state that any person who, being an employee of a specified authority, by any wilful act or omission, or by his negligence or misconduct or by any reason of his failure to take reasonable care or to discharge his duties in a reasonable manner, causes his employer to suffer a pecuniary loss or to suffer damage to any property owned by or in possession of his employer, notwithstanding any law to the contrary, shall be guilty of an offence (see s. 284 A PC). “Employee of a specified authority” has been defined to include the employees of the Government, a local authority, the Party (then CCM) and its affiliates and parastatal organisations. The wide net of this section must be understood. Its provisions are a departure from the general requirement that an accused must be proved to have done the act with the necessary mens rea. Under this law an accused may be convicted so long as it is proved that as a result of his negligence, or failure to discharge his duties in a reasonable manner, he caused his employer to suffer a pecuniary loss, or caused damage to his employer’s property. The act or omission which results in loss or damage need not necessarily be wilful. The question that arises is: what is the degree of proof to establish criminal negligence under this section? In the case of Bujukano v. Republic, (1971) HCD n. 446, the facts were that the appellant was a revenue collector. In the course of his duties he collected shs. 2842/- but remitted only shs. 2496/-. When asked to plead, he said: “It is true I lost this money”. In the facts recited by the prosecution, there was no allegation that the appellant had stolen the missing money. The trial court convicted him of stealing by agent. On appeal the main issues were whether the appellant had pleaded guilty to the charge, and whether he could be convicted of occasioning loss to the Government c/s 284 A of the Penal Code. The High Court held, inter alia:

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. . . occasioning loss to the Government is not, per se, a criminal offence. To be a criminal offence it is necessary that the loss should be as a result of ‘any wilful act or omission, or by his negligence or misconduct, or by reason of his failure to take reasonable care or to discharge his duty in a reasonable manner’, proof of which is lacking in the present case. In a charge under section 284 A, therefore, the prosecution must prove beyond reasonable doubt that the accused caused loss or damage as a result of any wilful act or omission, or by reason of his negligence or misconduct, or by reason of his failure to take reasonable care or to discharge his duty in a reasonable manner. All these are questions of fact, and the prosecution must prove them by evidence. It is not enough to prove merely that there was a loss.

Chapter 16

FORGERY AND ALLIED OFFENCES Forgery is defined as the making of a false document with intent to defraud or to deceive (see s. 333 PC).

How to prove the offence of forgery In order to prove the offence of forgery, the prosecution must prove: (1) that there was a false document; (2) that the accused made the false document; and (3) that he made it with intent to defraud or to deceive.

That there was a false document made For the purpose of this offence, the term “document” does not include a trade mark or any other sign used in connection with articles of commerce though they may be written or printed. Within the definition of that term, the prosecution must prove that the document is false in fact.

That the accused made the false document A person is said to have made a false document when (a) he makes a document which purports to be what it is not; (b) if he alters a document without authority in such a manner that if the alteration had been authorized it would have altered the effect of the document; (c) if he introduces into a document without authority whilst it is being drawn up, some matter which, if it had been authorized, would have altered the effect of the document; (d) if he signs a document in the name of any person without such person’s authority whether such name is or is not the same as that of the person signing; or in the name of any fictitious person alleged to be of the same name as the person signing; or in the name represented as being the name of a different person from that of the person signing it and intended to be mistaken for the name of that person; or in the name of a person impersonated by the person signing the document, provided that the effect of the instrument depends on the identity between the person signing the document and the person whom he professes to be (see s. 335 PC).

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In any of these circumstances the person will be said to have made a false document in the sense that the document so made will be telling a lie about itself in that it then purports to be what in fact it is not. It is not, therefore, enough to prove that the document tells a lie. The document must tell a lie about itself. For instance, it is forgery for a person to make alterations to duplicate receipts so as to show that he received less amounts than was actually the case. But if such person were to enter those figures in, say, his cash book or daily summary sheet, such entering of false figures will not amount to forgery but fraudulent false accounting. The case of Ramadhani s/o Athumani v. Republic , (1968) HCD n. 110, is a good example of the application of the foregoing provisions. In that case the accused was convicted on 10 counts of forgery, 10 counts of uttering false documents and 10 counts of stealing. The evidence was that the accused, a village executive officer, wrongly issued permits to brew local brew and appropriated shs. 5/- for his own use. He had no authority to issue such permits, but gave each applicant a receipt from a receipt book which he had wrongfully retrained. The charges of forgery and uttering alleged that he had forged and uttered false receipts. On appeal, it was held that the accused could not be held to have forged or uttered false receipts because the receipts which he issued were unequivocally what they alleged to be – receipts for payment of shs. 5/- and so were not false documents within the meaning of section 333 of the Penal Code. The Court held that what the accused did on those facts amounted to obtaining money by false pretences. A public prosecutor, therefore, must check the facts very carefully before drawing up a charge. It is not every falsification that amounts to forgery. The test is whether the document tells a lie by itself. In the case of an altered duplicate receipt, the receipt tells a lie by itself (see also Edward Mponzi v. R. , (1968) HCD n. 438).

That it was with intent to defraud or deceive In a charge of forgery, it is not enough to prove that the accused made a false document. It must further be proved that he made the false document with intent to defraud or to deceive. As we have seen earlier, intention is not always capable of positive proof. It is very rare that a public prosecutor will have positive or direct evidence to prove that in making the false document the accused had an intention to defraud or to deceive. But such intention can be inferred from the overt acts of the accused. Besides, it has been expressly laid down by statute that an intent to defraud is presumed to exist if it appears that at the time the accused made the false document there was in existence a specific person, ascertained or

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unascertained, capable of being defrauded thereby. This presumption is not rebutted by proof that the offender took or intended to take measures to prevent such person from being defrauded in fact, nor by the fact that the maker of the false document had, or thought he had, a right to the thing to be obtained by the false document (see s. 336 PC). In addition to direct evidence that the accused made a false document and with intent to defraud or deceive, forgery can also be proved by circumstantial evidence. In the case of Chokwe v. Republic , (1969) EA 23, it was held that if it is established that the accused had the opportunity and that the document alleged to have been forged was at all material times in the possession of the accused not having passed through the hands of another person or persons, those facts and circumstances could well be sufficient from which to draw an inference that the accused forged the document even without proof of the handwriting (see also Alley and Another v. Republic, (1973) LRT n. 43).

Uttering a false document A person who knowingly and fraudulently utters a false document commits the offence of uttering a false document and is liable to the same punishment as if he had forged that document himself (see s. 342 PC). To prove this offence, the prosecution must prove: (1) that the document is false in material particulars about itself; (2) that the accused person uttered it to some person; (3) that the accused knew at the time he uttered it that it was false; and (4) that he uttered it fraudulently, that is, that he uttered it with intent of making that other person to act to his detriment or to that of other persons (see Ally and Another v. Republic, (supra)). Other offence related to forgery and uttering false document include uttering cancelled or exhausted documents, procuring execution of documents by false pretences, obliterating crossing on cheques, making documents without authority, and falsifying warrants for money payable under public authority (see s. 352A PC).

Fraudulent false accounting by public officers Any person who, being an officer charged with the receipt, custody or management of any part of the public revenue or property, knowingly furnishes any false statement or return of any money or property received by him or entrusted to his care, or of any balance of money or property in his possession or under his control, is guilty of an offence (see s. 318 PC).

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In order to prove this offence all you need to prove is that the accused was a public officer; that he was entrusted with the collection or custody of the revenue or other public property; that he, knowingly, furnished a false statement or return in respect of that money or property. It is not enough to prove that the statement was false. It must be proved that the accused knowingly furnished the false statement or return.

Fraudulent false accounting by clerks or servants Any person who, being a clerk or servant, or being employed or acting in the capacity of clerk or servant, with intent to defraud, destroys, alters, mutilates or falsifies any book, document, valuable security or account which belongs to or is in the possession of his employer, or any entry in any such book, document or account; or who makes, or is privy to making, any false entry in such book, document or account; or omits, or is privy to omitting, any material particular from any such book, document or account, is guilty of an offence (see s. 317 PC). The essential ingredients of this offence are: that the accused was a servant or clerk or acted as such; that he destroyed, falsified, etc. the documents of his employer or in possession of his employer, or he was privy to such acts; and that he did so or omitted to do so with intent to defraud.

Chapter 17

FALSE PRETENCES AND ALLIED OFFENCES A false pretence is a representation by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows it to be false or does not believe it to be true (see s. 301 PC). To establish a false pretence, therefore, there must be evidence to show: (1) that there was a representation by word, writing or conduct by the accused person; (2) that such representation was about a matter of fact past or present; (3) that such representation was false in fact; and (4) that the accused or the person who made such a representation knew that it was false or did not believe it to be true. By definition, a representation that is false as to the future does not amount to false pretence (see Alli Mohamedi v. Republic, (1968) HCD n. 277; and Mathew Merere v. Republic, (1967) HCD n. 316).

Obtaining goods by false pretences Any person who, by false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of the offence of obtaining goods by false pretences (see s. 302 PC). The elements of this offence are: (1) that the accused did make a false pretence; (2) that it was with intent to defraud; (3) that the accused thereby obtained from that other person something capable of being stolen or induced him to deliver to another person something capable of being stolen. It should be noted that in order for the offence to be committed, the complainant must have been made to part with the goods as a result of the accused person’s false pretence that operated on him at the time. In the case of Robert Bayo v. Republic, (1973) LRT n. 62, the accused received shs. 5100/from B and promised to go and change the money into 100-shilling notes at the request of B. The accused, however, spent the money for his own use. He was convicted of obtaining goods by false pretences. On appeal, the High Court held that there was no false pretence because the appellant had

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made no false pretence which induced B to part with the money. It was a voluntary agreement between the parties for the accused to do something in the future. But under the provisions of section 187(2) of the Criminal Procedure Code (now section 306) a conviction for theft was substituted (see also Sarwano Mawanda v. Republic, (1962) EA 119; and Jumanne Ramadhani v. Republic, (1992) TLR 40). In certain circumstances, silent conduct may amount to false representation of fact. However, this is so not because the presenter is under legal or moral duty to speak, but because his silent conduct itself conveys a false meaning and was intended to convey that meaning (see Longinus Komba v. Republic, (1973) LRT n. 39). It may be well to point out here that the words “to deceive” and “to defraud” are not used interchangeably. As was pointed out in the case of Augustino Brown Chanafi v. Republic, (1968), “to deceive” means to induce a state of mind by falsehood, and “to defraud” means to induce a course of action by deceit. One word of warning: a public prosecutor must bear in mind that in a charge of obtaining goods (or money) by false pretences, the nature of the false pretence must be set out in the particulars of the charge with sufficient particularity. If it is not, the resulting conviction runs the risk of being quashed on appeal (see Mahindi v. Republic, (1967) HCD n. 220; and Alli Mohamed v. Republic (supra)). But it will not necessarily be quashed if the resulting defect does not prejudice the accused (see Blasius Ndambaliro v. Republic, (1973) LRT. N. 35). Besides, the charge must allege that it was with intent to defraud (see Msafiri Kulindwa v. Republic (1984) TLR 276).

Cheating A person is guilty of the offence of cheating if that person, by means of any fraudulent trick or device, obtains from any person anything capable of being stolen or induces any person to deliver to any person any money, goods, or any greater sum of money or greater quantity of goods than he would have paid or delivered but for the trick or device (see s. 304 PC). As will be observed, this offence has the same or almost the same ingredients as that of obtaining goods by false pretences. In a charge of cheating, the prosecution must prove: (1) that the accused used a fraudulent trick or device; (2) that as a result of that trick or device, he obtained something capable of being stolen from someone. The difficulty of drawing a distinction between the two offences was discussed at length in the case of Blasius

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Ndambaliro v. Republic (supra). In that case Mfalila, Ag. J. (as he then was) observed at page 380: In my view, the problem underlying the distinction between these two offences is that in every cheating situation there is involved a false pretence, for in order to succeed, the trick, device or stratagem must be accompanied by false description of it, which therefore is a false statement, leading to the offence of obtaining whatever is obtained by false pretences. He concluded: The result of this analysis is that all cheating situations contain elements of obtaining by false pretences, although the converse is not true. If this is so, then, no prosecutor can go wrong by always preferring charges under section 302 and relegating the offence under section 304 to the back-ground until such time that it is either removed from the statute book or suitably merged with section 302. In the case of Paulo Mwanjiti v. Republic, (1967) HCD n. 187, it was held to amount to cheating where the accused, posing as a police officer, “arrested” the complainants and took away from them shs. 304/10 saying that the money was “bail” and told them to appear at the police station the next day. In the case of Nathaniel Mputi v. Republic, (Dar es Salaam High Court Criminal Appeal No. 182 of 1975 (unreported)), it was held to amount to cheating where the complainant was made to believe the accused person’s trick to part with his money which the trickster (the accused) said he would multiply for the complainant. It is not enough to prove that by a fraudulent trick or device the accused deceived the complainant. It must be further proved that as a result of that trick or device, the complainant parted with some thing capable of being stolen (see Ali Simba v. Republic, (1968) HCD n. 240). Where the public prosecutor is not certain whether to prefer a charge of cheating or one of obtaining goods by false pretences, it would be advisable to prefer a charge of obtaining goods by false pretences. If, in the course of the trial, the evidence should lean to the offence of cheating, it will be open to the trial court to substitute a conviction for the offence of cheating under the provisions sanctioning substituted convictions. What should be borne in mind is that as in a charge of obtaining goods by false pretences, the fraudulent trick or device must be clearly stated in the particulars to the charge.

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Obtaining credit by false pretences Any person who, in incurring any debt or liability obtains credit by any false pretence or by means of any other fraud; or with intent to defraud his creditors or any of them makes or causes to be made any gift, delivery or transfer of any charge of his property, or with intent to defraud his creditors or any of them, conceals, sells or removes any part of his property after or within 2 months before the date of any unsatisfied judgment or order for payment of money obtained against him, is guilty of an offence of obtaining credit by false pretences (see s. 305 PC) These provisions are best clarified by illustrations. If A obtains a night’s lodging in a guest house by falsely promising to pay next morning but deliberately disappears from the guest house early next morning without paying for such accommodation, he has committed an offence of obtaining credit by false pretences. If D secures a bank loan on the strength of a Right of Occupancy of a plot which he sold to E the previous week, he is guilty of the offence of obtaining credit by false pretences.

Personation Allied to offences of false pretences are offences involving personation. Some of those are the following:

Personation in general Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of an offence termed personation (see s. 369 PC). To prove this offence, evidence must be led to show that the accused falsely represented himself to be some other person; and that he did so with intent to defraud.

Personating a public officer If a person personates any person employed in the public service on an occasion when the person personated is required to do any act or attend in any place by virtue of his employment, commits the offence of personating a public officer. The offence is also committed if the person falsely represents himself to be a person employed in the public service, and assumes to do any act

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or attend in any place for the purpose of doing any act by virtue of such employment (see s. 100 PC; and Celestine Kaziba v. Republic, (1984) TLR 269). From the foregoing, it is obvious that it is not enough to prove that he alleged himself to be a person employed in the public service. It must further be proved that having thus represented himself, the accused did some act or attended in some place for the doing of any act which a person employed in the public service in that capacity as a public officer would be required to do; and it must further be proved that he did so with intent to defraud (see Xavier v. Republic, (1967) HCD n. 302).

Personation of a person named in a certificate Any person who utters any document which has been issued with lawful authority to another person, and whereby that other person is certified to be a person possessed of any qualification recognised by law for any purpose, or to be the holder of any office, or to be entitled to exercise any profession, trade or business, or to be entitled to any right or privilege, or to enjoy any rank or status, and falsely represents himself to be the person named in the document, is guilty of an offence and is liable to be punished as if he had forged the document (see s. 371 PC). All that has to be proved here are: (1) that the accused uttered the document; (2) that the document was not issued to him but to some other person; (3) that the document was lawfully issued and certified the true owner to be a person to be possessed of any qualification recognised by law, or entitled such true owner to any office, or to exercise any profession, trade or business; and (4) that the accused, by uttering such document, falsely represented himself to be the person named in such document. It is also an offence to lend, or sell a certificate or testimonial or certificate of character for the purposes of personation (see s. 372 PC). If, for example, A lends his Higher School Certificate to his son, B, who has only a Standard Seven certificate, in order to enable B to gain admission to a University, A is guilty of lending a certificate for the purpose of personation. If B utters it to the University authorities and falsely represents himself to be A, then B is guilty of the offence of personating a person named in a certificate.

Chapter 18

ROBBERY AND EXTORTION Robbery This is one of the most serious offences which subordinate courts have jurisdiction to try. A person who steals anything and at, or immediately before or immediately after such stealing, he uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the offence of robbery (see s. 285 PC). The elements of the offence of robbery are: (1) that the accused stole something; (2) that immediately before or immediately after such stealing he used or threatened to use actual violence to any person or property; and (3) that the use of or threat to use such violence was with intent to obtain or retain, or prevent or overcome resistance to its being stolen or retained. To start with, then, it must be proved that the accused stole something. It must therefore be shown that there was a taking away (see Nuru s/o Ayub v. Republic, (1968) HCD m\n. 279). Next, it must be proved that the accused formed the intention to steal at the time or before he used or threatened to use violence to any person. If the intention to steal is formed after the assault, that cannot be termed robbery. The case of Mkwepu s/o Hamisi v. Republic, 2 TLR (R) 108 is a good example. In that case the facts were that the accused met the complainant, a woman, and made overtures to her. She rejected them. Thereupon he seized her by the wrists, and as she struggled, he snatched her basket of food and clothing and ran a short distance into the bush. He then invited her to come after him to claim her basket but she, being under no illusion as to the intentions of the accused, declined and went off in search of help. The accused was arrested the next day, but the complainant’s goods were not recovered. The trial court convicted him of robbery. On appeal, it was held that since at the time the accused took away the complainant’s basket he had no intention of stealing it, and that he did so in the hope that she would be enticed to follow him, and further that he formed the intention to steal the goods after his ruse of enticing her into the bush had failed, he could not be

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convicted of robbery because the intention to steal was not formed at the time that he assaulted her. A conviction for theft was substituted. Similarly, general belligerent behaviour in which theft is committed with no rational connection between the theft and the belligerent behaviour is not robbery (see Miderege s/o Bemeye v. Republic, (1968) HCD n. 74). In addition to the connection between the theft and the violence, the use or threat to use violence must not be too remote in time or place in relation to the theft. In the case of Gathuri Njuguna v. Republic, (1965) EA 583, the facts were that the complainant had left his house at 7 a.m. and was returning at about 9 p.m. the same day when he saw the appellant proceeding from the direction of the complainant’s house carrying a bundle. On discovering that it was his house which had been broken into, he alerted his neighbours and they set out after the accused whom they found about 500 yards away. The appellant resisted the complainant and hit him with a club before he was overpowered. He was convicted of robbery. On appeal, the Court said, at page 584: We think that the essence of the offence of robbery is an openly committed theft from or in the presence of someone or a theft where the offender is caught more or less in the act or immediately after the act. We do not think it extends to a case such as this where the offence was committed clandestinely without discovery or chase until after the offender had left the premises and had proceeded so far on his way as he had in this case without being discovered to be the thief. A conviction for burglary and theft was substituted (see also Mkwe s/o Lakimoja v. Republic, (1967) HCD n. 372; and Seliani v. Republic, (1968) HCD n. 243). It may puzzle some public prosecutors as to the degree of violence that must be caused to establish robbery. The degree of violence is immaterial; if anything, the fact that very little violence was used should be a factor in mitigation of sentence and not a defence. Even if little violence was used to overcome the complainant’s resistance to the theft, that will amount to robbery (see Isau and Another v. Republic, (1971) HCD n. 53). However, merely snatching property from a person unawares and running away with it does not amount to robbery. Where the prosecution’s case depends on an allegation that the accused threatened to use actual violence to any person or property, the threat need not have been uttered. General conduct may constitute threat of violence. It is equally immaterial that the accused did not take but was given the property by the complainant, so long as it is proved that the complainant parted

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with his property through apprehension of immediate injury to him or to some other person or property (see Nuru Ayub v. Republic –supra).

Assault with intent to steal Any person who assaults any person with an intent to steal anything is guilty of an offence. To prove this offence, you must prove: (1) that there was an assault; and (2) that the assault was coupled with intent to steal. To prove an assault, it is not necessary to prove that the accused committed actual violence upon the complainant or any other person; nor is it necessary for the person assaulted to be the person from whom the accused intended to steal. The intention to steal, of course, can be proved by circumstantial evidence. The circumstances attending the assault, the time and place in which the assault was committed, the expression or gestures of the accused at the time, etc., are matters from which an inference may be drawn that the accused had an intention to steal. This offence and those of attempted robbery (s. 287 PC), demanding money or property with menaces (s. 292 PC) do have certain elements in common and so it will not always be easy for the public prosecutor to know for certain which charge to prefer.

Demanding property with menaces If a person, with intent to steal any valuable thing, demands it from any other person with menaces or force, he is guilty of an offence called demanding property with menaces (see s. 292 PC). This offence, as stated above, is similar to robbery and attempted robbery, but it differs from robbery in certain respects. In robbery there is a taking, but in demanding property with menaces there is no taking. In the latter, however, it must be proved that there was demand with menaces, and that if the demand had succeeded, the property could be said to have been stolen. Secondly, robbery and attempted robbery involve immediate threat or injury to person or property, but demanding property with menaces may involve a veiled threat which may be of such a nature that an ordinary reasonable man would read menace into the demand. Thirdly, while robbery or attempted robbery involves immediate threat of violence,

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demanding property with menaces may involve a threat to accuse the victim of misconduct (see Nuru Ayub v. Republic – supra). To prove a charge of demanding property with menaces, therefore, there must be evidence to show that the accused made a demand; that the demand was made with menaces or force; that it was with intent to steal; and that the menacing demands were unwarranted. It should be noted here that “menaces” includes not only threats of injury to persons or property, but also threats to accuse the victim of misconduct and threats which would involve injury to a third person intended to be injured, and which would induce the person to whom the menaces are addressed to part with money or valuable property. What constitutes sufficient evidence of menaces or force will depend upon the circumstances of a given case. Threats and conduct of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand are sufficient, and it does not matter whether there were special circumstances unknown to the accused (e.g. the presence of a police officer) which would make the threats innocuous and unavailing for the accused’s demands (see Republic v. Clear, (1968) 1 QB 670; and 52 Cr. App. R. 58.). In the case of John Raymond Vaz v. Republic, (1961) EA 320, Sir Ralph Windham dealt with the elements of this offence and said, at page 323: With regard to the first point, the legal positions to be borne in mind in deciding whether the Crown has established a case of demanding money with menaces with intent to steal, contrary to section 292 of the Penal Code, are the following. First, the menaces or threats need not be uttered explicitly; it is sufficient if the menace, though veiled, is implicit in the circumstances in which the money was demanded, so that an ordinary reasonable man would read menace into the demand . . . Secondly, while the menace must be calculated to, that is to say must be of such a nature as to be likely to, produce in the person menaced, considered as an ordinary reasonable man, some degree of fear or alarm such as would unsettle his mind, it is not necessary to show that it did in fact induce such fear or alarm in him; it is on the intention of the accused and the nature of the menace that the accused’s guilt depends, rather than on the effect of the menace . . . Thirdly, in the event the menace proving unsuccessful . . . the test is whether if it had been successful and the money had been obtained, ‘it would have been obtained in such circumstances that it

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could properly be said to have been stolen’, with particular attention to the question whether it had been taken fraudulently and without a claim of right. Similar to this offence is the offence of demanding property by written threats (see s. 289 PC). There are also offences of attempting to commit these offences and attempting to extort by threats as per section 290 of the Penal Code.

Chapter 19

BURGLARY, HOUSEBREAKING AND ALLIED OFFENCES Subordinate courts are flooded with cases involving offences of burglary, housebreaking and stealing and similar offences. So a public prosecutor who is ignorant of the elements of these offences is in for a rough ride.

Housebreaking What is meant by “to break a building,? By statutory definition, a person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, lifting, or any other means whatever, any door, window, shutter, cellar, cellar flap or other thing, intended to close or cover an opening into a building or an opening giving passage into a building or an opening giving passage from one part of the building to another, is deemed to break the building. To open a locked door with a key, or to push it open, or to pull or lift a latch of any door or window and so open it, constitutes breaking of a building. Indeed, if one pushes a door that is closed but not locked, he is said to break the building (see s. 293 PC). So, the offence of housebreaking is committed when a person breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offence therein; or having entered any building, tent or vessel used as a human dwelling with intent to commit a an offence therein or having committed an offence therein breaks out thereof (see s. 294 PC). In order to obtain a conviction on a charge of housebreaking, therefore, the prosecution must prove the following: (1) that the accused broke the building, tent or vessel used as a human dwelling; (2) that having so broken it, he entered the same; and (3) that he did so with intent to commit a offence.

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That there was a breaking The first essential element of the offence of housebreaking is that there was a breaking within the meaning of that term. In other words, it is necessary to prove that the door window or other aperture was closed before the breaking (see Renderito s/o Laidosoli v. Republic, (1972) HCD n. 169).

That the accused entered the building A second important element of the offence of housebreaking is an entering; that is, there must be evidence to prove that having broken the building, tent or vessel, the accused entered the same (see Said Ali v. Republic (1973) LRT n. 66). The term entering here means both active and constructive entering. A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building (see s. 293 PC). If, for instance, the accused forces open a window and then pushes his hand or stick through the window into the building, he is deemed to have entered the building because part of his body, that is, his hand, or his instrument, the stick, is within the building. If he pushes the stick into the building, it is immaterial that the whole of his body remained outside the building (see Paul v. Republic, (1971) HCD n. 135). The least degree of entering will suffice. One more point. If a person enters a building through a chimney or other aperture of the building left permanently open for any necessary purpose but not intended to be ordinarily used as a means of entrance, or if he obtains entrance into the building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, he is deemed to have broken and entered the building (see s. 293 PC; and Peter s/o Mussa v. Republic, (1973) LRT n. 68). So, if an accused colludes with an occupant of a dwelling house to open the door for the accused, and the occupant opens for the accused who then enters the dwelling house, that is as much a breaking and entering by the accused as if he had opened the door himself.

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That it was used as a human dwelling The third element of housebreaking is that the building tent or vessel which the accused broke and entered was used as a human dwelling. Section 5 of the Penal Code defines a “dwelling house” as including any building or structure which is for the time being kept by the owner or occupier for the residence therein for himself, his family or servants or any of them, and it is immaterial that it is left from time to time uninhabited. A building or structure adjacent to or occupied with a dwelling house is deemed to be part of the dwelling house if there is a communication between such building or structure and the dwelling house, either immediate or by means of a covered or an enclosed passage leading from the one to the other. The important thing to remember is that the building or structure should be used or kept for dwelling by the owner or occupier, or by his family or servants. If the building or structure has been abandoned as a result of the owner having shifted to some other place, such building or structure will not, strictly speaking, come within the definition of a “dwelling house”.

That it was with intent to commit a felony It is not enough to prove that the accused broke and entered a building, tent or vessel used as a human dwelling. The prosecution must go further and prove that the accused did so with intent to commit an offence. As observed elsewhere in this book, intention is not always capable of positive proof. It can be, and often is, inferred from overt acts and surrounding circumstances. In many cases where the accused did not, in addition to the housebreaking, succeed in committing the offence he intended to commit, that intended offence can be inferred from his overt acts. What he did in the building or where he was, or what he was carrying, including what he said to the occupant, may all be of assistance in proving the offence he intended to commit. This difficulty, of course, does not arise where the housebreaking is accompanied by the commission of a felony therein, such as theft, rape or doing grievous bodily harm. The offence he intended to commit, however, must be particularised in the charge (see Republic v. Ntibilanti, (1972) HCD n. 106).

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Burglary The only difference between burglary and housebreaking is that burglary refers to a breaking and entering into a building at night with intent to commit an offence. In simple terms, burglary is housebreaking at night (see s. 294 PC). From the punishment provisions of this offence, it will be noted that burglary is a more serious offence than that of housebreaking. So, in a charge of burglary, the facts must state that the offence was committed at night and evidence must be adduced to show that the offence was committed at night (see Republic v. Damas, (1961) EA 59). The terms “night” and “night-time” are defined in section 5 of the Penal Code as the interval between 7 o’clock in the evening and 6 o’clock in the morning.

Entering a dwelling house with intent to commit a felony As the wording implies, any person who enters or is in any building, tent or vessel used as a human dwelling with intent to commit an offence therein, is guilty of the offence of entering a dwelling house with intent to commit an offence (see s. 295 PC). It is clear, therefore, that the entering must be through an opening normally used for ingress or egress, and that such opening is not locked or closed. If, however, the accused had a free access to the building by the nature of his duties or by virtue of his close relationship with the occupier, it will not be easy to prove that he entered the building with intent to commit an offence even after he does commit an offence while within the building. The case of Paskale Stephano v. Republic, (1968) HCD n. 196, is a good example. In that case the facts were that the accused, a servant of the complainant, was convicted, inter alia, of entering a dwelling house with intent to commit a felony therein, namely, stealing. On appeal, the High Court held that since the accused had a free access to the house of his employer, it could not be inferred from the theft of the goods that the accused entered the house with intent to commit a felony. The conviction for the offence of entering a dwelling house with intent to commit a felony was quashed, and that of stealing was upheld.

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Breaking into a building and committing a felony This offence may be loosely termed as a compound offence. If a person breaks and enters a school house, shop, warehouse, store, workshop, garage, office or counting house, or a building which is adjacent to a dwelling house and occupied with it but is no part of it, or any building used as a place of worship, and commits an offence therein, he is guilty of the offence of breaking into a building and committing an offence; so too if, having committed an offence in any one of the places aforesaid, he breaks out of it (see 296 PC). In order to prove this offence, therefore, you must prove: (1) that there was a breaking of a building by the accused; (2) that the building was one of those aforesaid; (3) that he entered the building; and (4) that he committed an offence therein (see Masenu s/o Butili v. Republic, (1967) HCD n. 81). It is not, therefore, enough to prove merely that the accused broke and entered one of the structures aforesaid. It must be further proved that having broken and entered the building, he actually committed an offence therein. A mistake often made by public prosecutors in respect of this offence is that they prefer two counts instead of a single count. They prefer a charge of breaking and entering a building as one count and the offence committed as another count. That is wrong. The offence committed under section 296 of the Penal Code combines breaking, entering and committing an offence therein as one offence. Closely related to this offence is the offence termed breaking into a building with intent to commit an offence (see s. 297 PC).

Chapter 20

OFFENCES INVOLVING AND CAUSING DAMAGE TO PROPERTY Arson Arson is the wilful and unlawful setting on fire to any building, structure or vessel whatever, whether completed or not, or to any stack or cultivated vegetable produce, or of any mineral or vegetable fuel, or to a mine, or the workings, fittings or appliances of a mine (see s. 319 PC). The elements of the offence of arson, therefore, are: (1) that the accused set fire to one of the things aforesaid; and (2) that he did so wilfully and unlawfully.

That the accused set fire to the building etc. This constitutes the act done by the accused – the actus reus. The difficulty that often arises in proving the offence of arson is not so much that the act was done, but in proving that it was the accused who did it. Where, for example, the offence was committed at night (and it is usually the case), conditions for a favourable identification are usually bad (see Samson Bagazora v. Republic, (1972) HCD n. 180). It is, therefore, important that the public prosecutor elicits as much as he can from those witnesses who claim to have seen the accused do the act. It is not enough for a witness to make a bare assertion that he identified the culprit to be so-and-so. What was the culprit wearing? How far from him was the identifying witness? What hour was it? How much light was there at the scene and from what source? Was the witness familiar with the accused? How good is the sight of the witness? Is there any grudge between the witness and the accused? Was there any motive on the part of the accused? All these questions and more, if need be, should be asked. Apart from that, the prosecution should adduce circumstantial evidence, where possible, particularly where the evidence of identification is that of a single witness.

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It is also pertinent to note that it is not necessary to prove that the whole structure was destroyed. It is sufficient to prove that some part of it was burnt, however small.

That he did so wilfully In addition to proving the actus reus, it must also be proved that the act was wilful. It must be shown that it was a conscious act of the accused. Burning a house etc. through negligence or accident is not arson (see Sixtus Anini v. Republic, (1967) HCD n. 6). Even proving that the accident occurred in the course of a felonious act will not, it would appear, be sufficient in itself to render the consequent burning of a house an arson (see Republic v. Foulkner, (1877) 13 Cox 550).

That he did so unlawfully The prosecution must prove that the act of the accused was both wilful and unlawful; that is, that he had no lawful excuse for doing so. In other words, it must be proved that he acted with an evil mind or maliciously.

Attempts to Commit Arson Any person who attempts unlawfully to set fire to any of the aforesaid things, or who wilfully and unlawfully sets fire to anything which is so situated that any such thing as is mentioned above is likely to catch fire from it, is guilty of a crime (see s. 320 PC).

Setting fire to crops and growing plants Any person who wilfully and unlawfully sets fire to a crop of cultivated produce, whether standing, picked or cut; or a crop of hay or grass under cultivation, whether natural or indigenous product of the soil or nor, and whether standing or cut, or any standing trees, saplings or shrubs, whether indigenous or not, under cultivation, is guilty of an offence (see s. 321 PC). The main elements of this offence are: (1) that the act was both wilful and unlawful; and (2) that the crop, grass tree etc. was cultivated or under cultivation. Mere accident will not suffice.

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Malicious damage to property Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence. There are many ways in which this offence may be committed, and the sentences differ according to the nature of the property, extent of the damage or the value of property so damaged. To prove this offence, it must be established that the accused damaged the property in question and that he did so wilfully and unlawfully (see Juma s/o Ramadhani v. Republic, (1968) HCD n. 147). Situations do arise where, say, in the course of an assault, there is damage caused to such things like clothes. In such an event, it has been held, it is wrong to charge the accused with the offence of malicious damage to property in addition to assault because the damage was only incidental to the assault, unless there is evidence to prove that such damage was wilful and not merely incidental to the assault (see Leo Pigangoma v. Republic, (1967) HCD n. 131).

Chapter 21

OFFENCES UNDER THE ROAD TRAFFIC ACT The Road Traffic Act, 1973, Cap. 168 RE 2002, repealed and replaced the Road Traffic Ordinance, Cap. 168 of the Revised Laws. The large number of traffic cases which are handled by subordinate courts necessitates that a public prosecutor should be conversant with the elements of these offences and how to deal with them in courts. Let us look at a few of them.

Causing bodily injury or death through dangerous or reckless driving Any person who causes bodily injury to or the death of any person by driving a motor vehicle or trailer recklessly or at a speed or in a manner which, having regard to all the circumstances of the case, is dangerous to the public or any other person, is guilty of an offence usually referred to as causing death or body injury through reckless or dangerous driving (see s. 40(1) of the Act). This is one of the most serious offences under the Act. In order to prove this offence, the following must be established, namely, (1) that the accused was driving a motor vehicle or trailer; (2) that the manner of driving was reckless or dangerous; and (3) that such manner of driving resulted in injury or death of some person.

That the accused was driving It is essential to prove that it was the accused who was driving at the relevant time. Who, then is a “driver”? Section 2(1) of the Act defines a driver in relation to a motor vehicle or any other vehicle, as meaning a person who drives or attempts to drive or is in charge of a vehicle, and includes an instructor of a learner driver; in relation to animals, a driver is a person who guides cattle, singly or in herds, or flocks, or draught, pack or saddle animals on a road; and in relation to a towed vehicle, it means the person who drives the towing vehicle.

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That the manner of driving was reckless or dangerous This is the crucial element of the offence. Most acquittals in trials of this offence arise as a result of failure by the prosecution to establish reckless or dangerous driving. What amounts to reckless or dangerous driving? There is no tailored answer to this question. What constitutes reckless or dangerous driving is a question of fact and depends on the circumstances of each case; and the test is an objective test. The mere fact that an accident has happened does not, ipso facto, mean that the driver drove recklessly or dangerously. So an act of driving or manoeuvre of a motor vehicle may or may not be dangerous or reckless, depending on the circumstances of a given case. In the case of Republic v. Wallace, (1958) EA 582, dealt with the question of what is the expected standard of a motorist. After referring to many English authorities on the question, Law, J. (as he then was) said, at page 585: The standard expected of a motorist is the exercise of the degree of care and attention which a reasonably prudent driver would exercise; the courts do not expect every motorist to be an expert driver. He went on: The duty is to keep reasonable look-out and not to have to anticipate unreasonable or dangerous behaviour on the part of other drivers. He concluded: A conviction for driving without due care and attention cannot be founded on a mere fact of a collision but must be based on a finding of fact that the driver charged with the offence was guilty of some act or omission which was negligent and which was a departure from the standard of driving expected of a reasonably prudent driver. Although this was a decision on what amounts to driving without due care and attention under section 47(1)(a) of the repealed Traffic Ordinance, the principle would appear to be applicable to cases of reckless or dangerous driving. It must be proved that the manner of driving or manoeuvre in the circumstances was reckless or dangerous. In the case of Patel v. Republic, (1968) EA 97, the appellant was charged with driving a car in a manner dangerous to members of the public contrary to section 47(1) of the Kenya Traffic Act. The evidence showed that

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the appellant was driving in a cautious and orderly manner on a wet road but that, suddenly, the car skidded to the right and collided with a car which was being driven in the opposite direction on its correct side of the road. The magistrate accepted the evidence and at the close of the prosecution’s case, he dismissed the charge, holding that the accused had no case to answer. The State appealed to the High Court which allowed the appeal and remitted the case to the magistrate. The appellant then appealed to the Court of Appeal for East Africa. In dismissing the appeal, the Court said, at page 101: If on the plain facts, as shown by the evidence, the act done by the driver is one which any reasonable person in the absence of any explanation would say is a dangerous piece of driving, then that driving is dangerous within the terms of section 47. But if by reason of some explanation given, whether that explanation be obtained from the evidence of the prosecution or for the defence, it is clear that for all practical purposes the driver at the time when the act was committed did not have control of the vehicle for reasons beyond his control, then that would be a defence to the charge. . . The Court added: It is well-known that cars, even on a wet road, do not skid or swerve without reason. It is also well-known that for no reason at all cars do not turn into an oncoming vehicle. Unless an explanation is given which shows that for all practical purposes the driver of the car was not, for reasons beyond his control, in control of it, turning immediately in front of an oncoming vehicle is, on the face of it, a patently dangerous manoeuvre. (See also Lawrence Maliki v. Republic. (1973) LRT n. 12.) To prove this offence, therefore you need, as the best evidence, oral evidence of eye-witnesses. If there were eye witnesses, the public prosecutor must try to extract from them as much as they can remember: the speed of the offending vehicle, the manner in which the accused was driving, the position of the vehicle in relation to the victim, the conduct of the victim just before impact, the condition of the road (whether wet, tarmac, straight or winding), visibility, and condition of the motor vehicle both before and after the accident and so on.

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This, however, is far from suggesting that you cannot prove this offence without oral evidence. In a proper case you can. In Maliki’s case (supra), dangerous driving was established by circumstantial evidence which constituted real and documentary evidence. The facts of the case, so far as they are material, were that accused was driving on a straight tarmac road on the Dar e Salaam–Morogoro road and overturned on the wrong side of the road at 4.00 a.m. A police sketch-plan showed that the width of the road at that point was 23 feet and a grass verge on either side of the road. A police officer testified that the vehicle started from a point on the left grass verge 10 feet from the tarmac and swerved diagonally across the road for a distance of 200 feet to the right grass verge where it hit an embankment and overturned 30 feet from the point of impact with the embankment. In its resultant position the vehicle was lying on the tarmac leaving a passage of 12 feet. The vehicle was completely wrecked and one of the passengers died at the time of the accident. The appellant was convicted. On appeal, the High Court (Onyiuke, J.) stated: The accident occurred at 4.00 a.m. and it is not surprising that there was no independent eye-witness at that late hour. But certain facts were established and not disputed by the defence. The skid marks showed that the appellant’s vehicle went from a point left of the grass verge (that is its correct side of the road) and swerved diagonally for a distance of 200 feet across the road to the right (that is its wrong side), hit an embankment on the right and overturned 30 feet from the point of impact with the embankment. These facts established dangerous driving. It was piece of dangerous manoeuvre to drive a vehicle in that fashion and this called for some explanation from the appellant. It did not require an eye-witness to testify to these facts. The real evidence was as eloquent as any oral evidence could be.

That the dangerous or reckless driving caused injury to, or death of some person The word injury has not been defined in the Act. It must be proved that as a result of the dangerous or reckless driving, some person died or was injured.

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Reckless or dangerous driving Any person who, on any road, recklessly drives a motor vehicle or trailer; or drives a motor vehicle or trailer at a speed which, having regard to all the circumstances of the case, is or might be dangerous to the public or to any person; or drives a motor vehicle or trailer in a manner which, having regard to all the circumstances of the case, is or might be dangerous to the public or to any person, is guilty of an offence usually referred to as dangerous or reckless driving (see s. 42 of the Act). All that has to be proved here are: (1) that the accused drove the vehicle; (2) that it was on a road; and (3) that he drove at a speed or a manner which, in the circumstances, was dangerous to the public or to any person.

Careless or inconsiderate use of a motor vehicle Section 50 of the Act provides that any person who uses, parks or stands a motor vehicle or trailer on any road carelessly or without reasonable consideration for other persons using the road is guilty of an offence. These provisions are self-explanatory and require no further elucidation (see DPP v. Abdi Nyenye, (1984) TLR 37).

Penalties Penalties for offences discussed above are to be found in section 63 of the Act. In addition to imposing imprisonment and fines, courts are empowered to order that the convicted driver be disqualified from driving or obtaining a driving licence for a specific period unless there are special reasons.

Part III

Basic Principles of the Law of Evidence

Chapter 22

WHAT EVIDENCE IS ADMISSIBLE? ne day I was trying a case in a district court. The accused person had been charged with unlawful wounding and the complainant was a brother of the accused. There was evidence from two independent witnesses who testified that they were present when the accused quarrelled with the complainant over some change and that in the course of arguing, the accused slashed the complainant with a knife. They added that the father of the two young men was also present and was the person who intervened and disarmed the accused. But when the father was called to give evidence, he completely denied having witnessed such an incident and went on to say that there had been no quarrel between his sons and that the complainant sustained the injury while working on a hoe handle. My public prosecutor was bewildered. He tried one question after another but the witness would not yield to the truth. In the end, the public prosecutor sneered at the witness and sat down looking defeated.

O

“Has this witness turned hostile, Inspector?” I asked. “Hostile, Your Honour?” he asked looking lost. The problem was that my public prosecutor had never heard of a “hostile witness” let alone how to deal with such a witness. This underscores the fact that it is not enough for a public prosecutor to know the elements of offences and how to draw up charges. In addition to his knowledge of criminal law and criminal procedure, a public prosecutor must also be familiar with simple rules of evidence.

What is evidence? The term “evidence” is used in many senses. The Tanzania Evidence Act defines the term as follows: the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and without prejudice to the following generality, includes statements by accused persons, admis-

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sions and observations by the court in its judicial capacity. (See s. 3(1) of The Evidence Act, Cap 6 RE 2002.) In this book we shall talk of evidence in two main senses, namely, (1) those rules of law used in judicial proceedings which lay down as to what matter is or is not admissible for the purpose of proving or disproving facts in dispute, and the manner in which such facts, the truth of which is submitted to investigation, may be placed before the court; and (2) that which is received by the court to prove the truth or otherwise of an alleged matter of fact which is under inquiry before the court , such as statements of witnesses and of accused persons, documents, and other objects which are received by the court for the purpose.

Types of evidence A public prosecutor should try to be familiar with terms which are often used in courts. The following are some of the terms used to refer to particular types of evidence: (1) Oral evidence: This means statements by witnesses in court as to matters which they know, have heard or felt, seen or in any way perceived by any of their five senses, and, where such evidence is admissible, opinions of such witnesses in court. 2. Documentary evidence: This means documents produced in court for inspection by the court. Autopsy reports, payment vouchers, cheques, sketch-plans, etc. are all documentary evidence. 3. Direct evidence: This is evidence of a fact actually in issue, that is, evidence of a fact actually perceived by a witness with his/her own senses. For instance, if the question is whether A assaulted B, evidence by C that he saw A assault B is direct evidence. 4. Circumstantial evidence: This is evidence of a fact not actually in issue, but which is legally relevant to a fact in issue. It is sometimes referred to as indirect evidence. 5. Real evidence: This refers to evidence supplied by material objects produced for inspection by the court. For example, if the question is whether A stabbed B with a knife, a knife produced in court as the knife used by A to stab B is real evidence. 6. Extrinsic evidence: This means oral evidence given in connection with written documents. The oral evidence given by a handwriting expert on documents prepared by him in respect of a given handwriting is extrinsic ev-

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idence, while the document itself is documentary evidence if produced for inspection by the court. 7. Hearsay evidence: This, like direct and circumstantial evidence, is oral evidence of a fact not actually perceived by the witness with his own senses, but proved by him to have been stated by another person.

What evidence is admissible? A public prosecutor must bear in mind that not everything in the statements of witnesses may go in as evidence in the course of the trial. The law will admit in evidence only that evidence which it declares material and proper for proof of matters at issue or in dispute. Generally speaking, only such material as relates directly or circumstantially to questions at issue or questions relevant to questions at issue are admissible. Almost the entire study of the law of evidence is aimed at answering the question: what evidence is admissible? The purpose of adducing evidence is to establish a fact in dispute. The facts which are in dispute are called “facts in issue”, and so evidence which goes directly to prove facts in issue is admissible. But there are facts which, though not directly bearing on facts in issue, are relevant to facts in issue and proof of such facts may go to prove those facts in issue. So evidence of facts relevant to facts in issue is also admissible. If, for example, it is alleged that A stabbed B with a knife, evidence of X that he saw A stab B with a knife is directly bearing on the question in issue, which is: who stabbed B? That evidence is admissible. Evidence of Y that he saw A take out a knife from his house and went towards B shortly before B was stabbed is circumstantial and not bearing directly on the question as to who stabbed B with a knife. But that evidence is relevant to the question at issue because of the short period between the taking of the knife by A and the stabbing of B. and also because the weapon alleged to have been used by A is a knife. Y’s evidence, therefore, is admissible.

What facts are relevant? There is usually no difficulty in identifying what facts are in issue in any given case if you know what must be proved in the case. The difficulty is to know what facts are relevant to those in issue. The Evidence Act contains a list of matters which have been declared to be relevant facts. These are to be found in sections 8–18 of the Act. They include facts or acts

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which form part of the same transaction; facts which are the occasion, cause or effect of relevant facts or facts in issue or which constitute a state of things, etc.; explanatory or introductory facts; facts relating to motive, preparation or conduct with reference to a fact in issue or relevant fact; statements or actions referring to common intention; facts inconsistent with or affecting the probability of a fact in issue or relevant fact; and facts showing any state of mind or feeling.

Other relevant and admissible facts Other relevant and admissible facts include facts showing course of business, the existence of any right or custom, and facts affecting damages. Also admissible, but under certain circumstances, are admissions, confessions, statement of witnesses who cannot be called as witnesses, statements made under special circumstances (e.g. dying declarations), judgments of courts, opinions of third parties and the character of parties.

Chapter 23

COMPETENCY, COMPELLABILITY AND PRIVILEGE As a large body of evidence which the prosecution adduces in courts of law consists of oral evidence, it is necessary for a public prosecutor to know which of those persons may be allowed to testify in court if they have some knowledge relevant to the case. There are some witnesses who can testify but are not compellable witnesses. Then there are witnesses who, though competent to testify, will not be permitted by the court to do so.

Competency in general In general, all witnesses are competent to testify unless the court considers that they are prevented from understanding questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease (of mind or body), or such similar reason (see s. 127 Tanzania Evidence Act). The question whether a particular witness is competent to testify in court is determined by the court which is seized of the matter. Since all witnesses generally give their evidence on oath or affirmation, and since competency is a pre-condition to the administration of an oath or affirmation, the court must first determine the question whether the witness is competent to give testimony before such oath or affirmation. If, for instance, the person is old, or a lunatic, or a child of tender years, the magistrate will ask him questions to find out the extent of his intellectual capacity and understanding, and whether he has the ability to remember and describe what he has done or perceived or seen on particular occasions.

Competency in special cases In certain cases certain people are competent to give testimony provided that certain requirements are met. These include the accused, the dumb, young children, accomplices, husbands or wives and police spies or decoys.

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The accused An accused person is a competent witness for the defence whether he is charged alone or jointly with any other person. As the law stands, however, he is not compelled to give evidence in his defence at his trial.

Dumb witnesses A dumb witness is not incompetent merely because of his being dumb. He can give evidence in some other manner that is intelligible, for example, writing, or signs in open court, and evidence so given is deemed to be oral evidence (see S. 128 TEA). If the witness be both dumb and deaf, he is nevertheless competent if he can give evidence through an interpreter. In such a situation the magistrate will have to be satisfied that the method of interpretation has been tested, and he must further satisfy himself that it is reasonably sophisticated. If he finds the method of interpretation to be crude, he must exclude the evidence (see Hamisi s/o Salum v. Republic (1951) 18 EACA 217).

Young children In quite a number of cases the public prosecutor finds himself with witnesses who are young children. The law is that where in any criminal matter any child of tender years called as a witness does not, in the opinion of the court, understand the nature and value of an oath, his evidence may be received, though not given on oath or affirmation, if in the opinion of that court, to be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth. But it should be noted that if the testimony of such a child is received without oath or affirmation, it cannot form a basis for a conviction unless it has been corroborated by some other material evidence implicating the accused (see S. 127 (2) TEA. This is a requirement of law. So if you have a case based solely on the testimony of a child of tender years and his evidence is received without oath or affirmation, with no independent and material evidence to corroborate it, the result will be an acquittal. It makes no difference that such evidence is very eloquent. So do not go about calling the magistrate names if he lets off the thief, robber, burglar, arsonist, or rapist. There is nothing he can do about it.

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It should also be noted that the situation will not be any different if you have the testimony of two or more witnesses who are children of tender years and whose evidence has been received without oath or affirmation. The result will be the same. This is so because the law is that the testimony of a witness which itself requires corroboration cannot corroborate that of a witness which also requires corroboration. Where, however, the testimony of a child of tender years has been received on oath, such evidence does not, in law, require corroboration. But be warned: as a rule of practice, such evidence requires corroboration. This is a rule of prudence. A court ought not to convict an accused person on such evidence unless it has been corroborated in a material particular. In the absence of such corroboration a court must warn itself that it is dangerous to base a conviction on the uncorroborated testimony of a child of tender years even though such evidence has been received on oath. As was stated by the Court of Appeal for Eastern Africa in the case of Kibangeny arap Kolil v. Republic (1959) E.A. 92), at page 95: There was moreover another irregularity regarding the evidence of these boys which has fortified us in allowing the appeal, and that is the failure of the learned trial judge, . . . to warn either himself or the assessors of the danger of convicting on their uncorroborated evidence. Had their evidence been neither sworn nor affirmed, then there would have been a legal necessity for its corroboration by other material evidence implicating the appellant, . . . and a conviction upon it, if uncorroborated, would have been bad notwithstanding such a warning. But even where the evidence of a child of tender years is sworn (or affirmed), then although there is no necessity for its corroboration as a matter of law, a court ought not to convict upon it, if uncorroborated, without warning itself and the assessors (if any) of the danger of so doing. The next important point to remember with regard to witnesses who are children of tender years is the procedure to be followed before receiving their testimony be it on oath or affirmation or without such oath or affirmation. The procedure is that when a child of tender years is offered as a witness, the magistrate should ask question to the child as to his age, his religion, if any, and such other questions as will assist him in determining whether the child understands the nature of an oath or affirmation and its obligations. From that examination, which must be recorded in the case file, the magistrate will make a finding as to whether or not, in his opinion, the child understands the nature and obligations of an oath. If he comes to a

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finding that the child does understand the nature and value of an oath and its obligations, he will order that the child should give his evidence on oath. If he is not so satisfied, he will record such finding accordingly. If he comes to the latter conclusion, he should then proceed to question the child, this time for the purpose of determining whether or not the child has sufficient intelligence to warrant reception of his testimony and whether he appreciates the duty of telling the truth. His decision one way or the other must be recorded. If he decides that the child does possess sufficient intelligence to justify the reception of his testimony, and understands the duty of telling the truth, he will record such finding and allow the witness to testify without taking the oath or affirmation. If, however, the magistrate is of the opinion that the child is not possessed of sufficient intelligence to justify the reception of his evidence, and does not appear to appreciate the duty of telling the truth, he will record such finding and rule that the child ought not to give his testimony. The difficulty is that no age is given at which a child should be said to be a child to tender years. The whole matter should depend on the good sense of the magistrate. But it has been suggested that children under fourteen should be treated as children of tender years (see Kibangeny’s case - supra).

Accomplices Accomplices are persons who are participes criminal is (participants in crime) in respect of the crime charged, whether as principals or accessories before or after the fact, or persons committing, procuring, aiding or abetting (see Davies v. DPP (1954) AC 378). Accomplices are competent witnesses for the prosecution; and by virtue of the provisions of section 142 of the Evidence Act, 1967, a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. For the avoidance of doubt, it should be pointed out that a person who aids and abets the commission of a crime, or assists the guilty person to escape punishment is always an accomplice. But a person who merely acquiesces in what is happening or fails to report a crime is not normally an accomplice, though the weight to be given to such person’s evidence will vary according to the reason for the acquiescence. If the acquiescence was apparently based on approval of the crime, the evidence will be treated as no better than that of an accomplice; if it was based on indifference, the evidence will be treated with considerable caution; but if,

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say, it was the result of fear, the evidence can be relied on (see Kamau v. Republic (1965) EA 501 CA). From the authorities, it is clear that although as a matter of law the evidence of an accomplice does not require corroboration, it is a rule of practice that the evidence of an accomplice should not be the basis of a conviction unless such evidence is found to be credible and there is some corroborative evidence, that is, some independent testimony connecting or tending to connect the accused with the commission of the crime (see Kuruki and 7 Others v. Republic (1945) 12 EACA 84; and Uganda v. Shah (1966) EA 30 CA) The court will only convict an accused on uncorroborated evidence of an accomplices in exceptional circumstances (see infra).

Husband and wife As a general rule, a wife is a competent but not compellable witness for the prosecution where the accused is the husband. Conversely, a husband is a competent but not compellable witness for the prosecution where the accused is his wife. This rule, however, is subject to two important exceptions: a husband or wife is a competent and compellable witness (1) where the charge is under Chapter XV of the Penal Code or under the Law of Marriage Act, 1971; and (2) in any case where the person charged is chardged in respect of an act or omission affecting the person or property of the wife or husband (as the case may be) of such person or the children of either of them. If the witness is not covered under one of the above exceptions and he or she is called to give evidence for the prosecution to testify against the wife or husband (as the case may be), the public prosecutor should inform the court of such relationship between the accused and the witness. The court will then inform the witness of his or her privilege of being a competent but not compellable witness, and the magistrate must record that this has been done. If the witness opts not to give evidence, his or her evidence will not be received. It is important to note that if a husband or wife should elect not to give evidence for the prosecution, which he or she is entitled to do, that should not be a subject of any comment by the prosecution, let alone the court (see. s. 130 TEA).

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Police spy or decoy A witness who is a genuine police spy or decoy is a competent witness for the prosecution and his evidence does not require corroboration (see Davda v. Republic, (1965) EA 201).

Compellability of ordinary witness A witness cannot, generally speaking, be excused from answering any question as to any matter relevant to the matter in issue in any case on the ground that the answer to such a question would incriminate him, or expose him to a penalty, or establish that he owes a debt; but such answer which he is compelled to give cannot subject him to any arrest or prosecution, or be proved against him in any subsequent criminal proceedings, except in a prosecution for giving false information by such answer, say, if he is charged with perjury. If the witness refuses to be sworn or to answer any question put to him when he has been sworn, or refuses to produce any document when required to do so, without any lawful excuse, he is liable to prosecution for contempt of court (see s.141 TEA).

Privileged witness There are certain persons who are privileged, that is, witnesses who cannot be compelled to disclose certain information. Among these are (1) public officers with knowledge of an official communication; (2) judges, magistrates, and police officers; and (3) advocates.

Privilege of official communication No public officer can be compelled to disclose communications made to him in the course of his duty when a Minister or Secretary-General of the Community has stated that such disclosure would be against public policy or public interest (see s. 132 TEA).

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Privilege of judges, magistrates, police officers No judge, magistrate, or police officer can be compelled to say whence he got any information as to the commission of an offence, nor can a revenue officer be compelled to say whence he got information as to the commission of any offence against public revenue (see s. 133 TEA). Further, no judge or magistrate can be compelled to answer any questions as to his own conduct in court as such judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate, except where there has been a special order of some court to which he is subordinate. However, he may be examined as to other matters which occurred in his presence whilst he was so acting (see s. 129 TEA).

Privilege of advocates Generally speaking, an advocate is not permitted, unless with the consent of his client, to disclose any information given to him in the course, and for the purpose of, his employment by or on behalf of his client, or to state the contents or condition of any document or advice given by him to his client. However, this privilege does not cover communication made in furtherance of any illegal purpose, or any fact observed by any advocates (see s. 134 TEA).

Chapter 24

FACTS NOT REQUIRING PROOF We have seen that every allegation in a charge must be proved by evidence. In other words, all facts in issue or relevant to facts in issue must be proved by evidence which establishes such facts. There are, however, two exceptions to this rule. There are matters which the courts take as existing without evidence to prove their existence and those facts which have been admitted by the party against whom they have been made.

Judicial notice No fact of which the court takes judicial notice need be proved. The Evidence Act contains a list of matters of which courts take judicial notice or are required to take judicial notice. These include all Acts and Ordinances, subsidiary legislation and statutory instruments; the course of proceedings in Parliament; the names of the members and officers of the court the rule of the road on land and sea; the divisions of time, geographical divisions of the world; the ordinary course of nature; and all matters of general or local notoriety (see s. 59(1) TEA). This list, however, is not exhaustive. If the court is called upon to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it considers necessary for it to do so. It is on the principle of judicial notice that a public prosecutor does not need to adduce evidence to prove such facts, for instance, as that fire burns, that the sun rises in the east and sets in the west, that the period of gestation in man is nine months, or that motor vehicles on roads in Tanzania drive or keep on the left side of the road. In matters of geography, it has been held that a court may take judicial notice of the distance between Nairobi and the Hague for purposes of determining the question whether to bring a witness from the Hague to Nairobi, in the circumstances of a particular case, would or would not be unreasonable (see Commissioner of Customs v. S.K. Panachand, (1961) EA 303 CA) It has also been held that a magistrate is entitled to take judicial notice of the facts that Switzerland is in Europe and that Kampala is in Uganda (see Mohamed Taki v. Republic (1961) EA 206 CA).

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On the question of taking judicial notice of matters of local notoriety, the case of Nazir Ahmed v. Republic, (1962) EA 345 CA, is a good example. In that case it was in evidence that at different occasions two cars were stolen from a car park in Nairobi and were found stripped of some of their parts some 15 miles from Nairobi on Magadi Road. Talking about that road and the place where the cars were found abandoned the Court of Appeal stated, at page 349: It is relevant that the part of Magadi Road in question is remote, unfrequented and at a material distance from Nairobi, facts of which all Nairobi courts would take judicial notice. By implication, then, what one court would take judicial notice of under the rule of “local notoriety” will not necessarily be taken judicial notice of by other courts in different localities. Judicial notice based on local notoriety, however, cannot be taken too far. The case of Mwaitige v. Republic (supra) affords a good example. In that case the appellant was convicted of the offence of selling coffee illegally to a dealer at Mbeya in contravention of an order directing that all coffee grown and produced in Rungwe district by Africans must be sold and marketed through Rungwe African Co-operative Union. However, there was no evidence that the appellant brought the coffee to Mbeya from Rungwe district. But the magistrate convicted the appellant holding that although there was not direct evidence where the coffee came from, the conclusion was irresistible that it came from Rungwe district because the appellant had said that he had not grown or bought any coffee in Mbeya district. His appeal to the High Court was dismissed. On appeal to the Court of Appeal for Eastern Africa, the Court allowed the appeal. On this point the court stated, at page 474: There was no evidence to show who produced the coffee, and likewise there was no evidence to show where the coffee came from. It might, for all that is known, have come from a district other than the Rungwe or Mbeya district. The Learned Crown Counsel has submitted that the magistrate was entitled to take judicial notice of the fact that it had not come from the Mbeya district “the only place he could have got it is in the Rungwe district”. There is no evidence to this effect and we do not agree that this is a matter of which judicial notice could be taken.

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The Evidence Act also states that in addition to matters listed in subsection (1) of section 59, and in matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference. It has been held, however, that this does not mean that the court should take judicial notice of all facts mentioned in all books of public history, literature, art, and so on. Only books of acceptance or recognized authority may be resorted to for obtaining information regarding only undisputed and notorious facts. The provisions do not mean that such books or documents of reference should themselves be treated as evidence. The provisions enable or require the court to solve for itself, by reference to textbooks, difficult and perhaps controversial questions in medicine or other sciences (see Sharmpal Singh v. Republic (1960) EA 762 CA).

Admitted facts This applies to civil proceedings rather than to criminal proceedings. But for what it is worth, the law is that in any civil proceeding, no fact need be proved which the parties or their agents agree to admit at the hearing, or which before the hearing, they agree to admit in writing. The court may, however, in its discretion, require the facts admitted to be proved otherwise (see s. 60 TEA). But this could apply to facts admitted during preliminary hearing.

The hearsay rule All facts, except the contents of documents, must be proved by oral evidence, and oral evidence must in all cases be direct evidence. Now, what is “direct evidence”? Section 63 of the Evidence Act defines “direct evidence” to mean, with reference to a fact which could be seen, the evidence of a reference to a fact which could be seen, the evidence of a witness who says he saw it; with reference to a fact which could be heard, the evidence of a witness who says he heard it; with reference to a fact which could be perceived by any other sense or any other manner, the evidence of a witness who says he perceived it by that sense or that manner; and with reference to an opinion or to the grounds on which that opinion is held, the evidence of a person who holds that opinion or, as the case may be, who holds it on those grounds (see s. 61 TEA).

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This general rule means that assertions by a witness of what some other person has told him as what that other person has perceived is not admissible for proving that such statement is true. This rule is called “the hearsay rule”. An enlightening definition of the general rule against hearsay evidence has been given by Durand in his manual Evidence For Magistrates (1969). He states the rule thus, at page 149: A statement made by a person not called as a witness, which is offered in evidence to prove the truth of the facts contained in the statement is hearsay and is not admissible. If, however, the statement is offered in evidence, not to prove the truth of the facts contained in the statement, but only to prove that the statement was, in fact, made, is not hearsay and is admissible . . . In the simplest terms, hearsay means that a witness ‘says’ in court what he ‘heard’ from someone else, that other person not having been called as a witness for the purpose of providing that what he had heard was true. So, if a witness were to say in court: “Juma told me that he saw the accused steal the money”, and Juma is not called as a witness and the statement by the witness as to what Juma told him is made for the purpose of proving that the accused stole the money, then the statement by the witness is hearsay and inadmissible. To this general rule, however, there are important exceptions. Among them are (1) admissions; (2) confessions; (3) statements by persons who cannot be called as witnesses; and (4) statements made in special circumstances. Admissions and confessions are dealt with later in this book.

Statements made by persons who cannot be called as witnesses Statements made by persons who cannot be called as witnesses are, in certain circumstances, admissible although strictly speaking they are hearsay. These include statements written or oral, of admissible facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence by reason, say, of insanity, or a person whose attendance cannot be produced without unreasonable delay or expense (see ss. 19–40 TEA).

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Dying declarations Among the commonest admissible statements of persons who cannot be called as witnesses are dying declarations. Conditions precedent for the admission of a dying declaration are (1) that the maker of the statement is, in fact, dead; (2) that the statement relates to (a) the cause of his death or (b) the circumstances of the transaction which resulted in his death; and (c) that the cause of that person’s death is a question in the case (see Mohamed Warsama v. Republic (1956) 23 EACA). It should be noted that where the dying declaration is not completed before death, and there is any reason for believing that the actual utterances would have been qualified by other words which the dying person wished to utter but was by some cause prevented from uttering, the statement has little probative force, and may be held to be inadmissible (see Republic v. Charles (1960) EA 34 U). Even where the statement appears complete and there is no reason for believing that the maker was intending to qualify his utterances, dying declarations are, nevertheless, received with caution. As a matter of law, dying declarations do not require corroboration. In other words, they can be acted upon without corroboration. But it is generally recognised that it is very unsafe to base a conviction solely upon the dying declaration of a deceased person made in the absence of the accused and not subject to cross-examination. In such cases, no conviction should be based on a dying declaration unless it is satisfactorily corroborated (see Moyovya bin Msuma v. Republic (1936) 6 EACA 128); Mibinga v. Uganda (1965) EA 71 CA; Mande v. Republic (1965) EA 193 CA). There maybe circumstances, however, which go to show that the deceased could not have been mistaken in his identification of the accused (see Pius Jasunga s/o Akumu v. Republic (1954) 21 EACA 331, 333). In such a case a conviction could be based on the statement without corroboration. A pubic prosecutor must, therefore, be on his guard. The fact that the dying declaration has been admitted in evidence does not mean the end of your problems. Having produced the dying declaration, you should, wherever possible, adduce such evidence as will corroborate it. If there is no corroborative evidence, the magistrate will have to consider whether the dying declaration is so clear and the circumstances are such as to exclude the possibility that the deceased could have been mistaken. In other words, a court would have to warn itself of the danger of basing a conviction on an uncorroborated dying declaration.

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The reasons for advising caution and requiring corroboration of dying declarations is that a dying declaration has not been tested by way of crossexamination, and particulars of the incident may have occurred under circumstances of confusion and surprise calculated to prevent accurate observation. Further, the deceased may have stated his inferences from facts concerning which he may have omitted important particulars, from not having his attention called to such particulars. Where the dying declaration was made in the presence of the accused, corroboration could be found in conduct of the accused at the time. If, for instance, the deceased named the accused as the person who ran him down with the car whereupon the accused runs away, such conduct of the accused could amount to corroboration.

That the witness cannot be found If it is sought to admit in evidence a statement under this rule, it must be shown that due search for the witness has been made, and that he has not been found because his whereabouts are unknown.

That the witness has become incapable of giving evidence The statement of a witness may be admitted in evidence if it is shown that the witness has become incapable of giving evidence because, for instance, he has, since the occurrence of the incident, become insane, or has become extremely senile, or blind, or deaf by reason of some disease or accident.

Without unreasonable delay or expense Where, since making the statement, a witness has gone to a distant place and having regard to the distance and means of travel, he cannot be made to appear to give evidence without delay and expense, the statement of such witness may be admitted in evidence. But before such statement can be admitted, the court must be satisfied that the delay and expense in the circumstances of the case, would be unreasonable (see Mohamed Take v. Republic – supra). Such a statement, however, must not have been made with a view to the institution of the case in question.

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Statement made in special circumstances These include statements made against the interest of the maker, statements made in course of businesses and statements relating to family affairs. The admissibility of statements against the interest of the maker is based on the ethical principle that a person is not likely to say something that would expose him to a civil suit or criminal action unless such thing be true.

Chapter 25

ADMISSIONS AND CONFESSIONS Admissions and confessions have certain things in common. The simplest way of describing the similarity between these two terms is to say that all confessions are admissions, but not all admissions are confessions. Admissions and confessions come up too often in trials that a public prosecutor ought to be very conversant with them. He must know their definitions, the circumstances under which they are or are not admissible, and their evidential value.

Admissions Definition Section 19 of the Evidence Act defines an admission as a statement, oral or documentary, which suggests an inference as to a fact in issue or relevant fact, and which is made by a party to a proceeding or by his agent, expressly or impliedly authorised to make it. Statements made by persons whose position or liability it is necessary to prove as against any party to a suit are admissions if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability. (See S. 21 T.E.A.). Further, statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Admissibility of admissions As a general rule, admissions may only be proved as against the person who makes them, or his representative in interest, and not on his own behalf. This rule, however, is subject to three exceptions. The first exception is that an admission may be proved by or on behalf of the person making it when it consists of a statement of the existence of any state of mind or body which is in issue or relevant, made at or about the time when such state of mind or body existed, and is accompanied by conduct which renders its

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falsehood improbable. (See S. 23 (b) T.E.A.). In his book Evidence In East Africa, Morris gives the following example: A is accused of receiving stolen goods knowing them to be stolen and he offers to prove that he refused to sell them below their value, he may prove these statements though they are admissions in his favour, because they are explanatory of conduct influenced by facts in issue. In this example, the fact that he refused to sell the articles below their value tends to render as improbable the fact that he knew them to be stolen. The second exception to the rule is that an admission may be proved by or on behalf of the person making it when it is of such a nature that, if the person making it were dead, it would be relevant as between third parties under section 34 of the Evidence Act. (See S. 23 (a) T.E.A.). The third exception is that an admission may be proved by or on behalf of the person making it if it is relevant otherwise than as an admission. (See S. 23 (e) T.E.A.). Where an admission is partly in favour and partly against the interests of the maker, then the whole statement should be taken together and tendered in evidence in order that the full meaning may be ascertained. (See Zarina Akbarali and Another v. Noshir Pirosesha and Others (1963) E.A. 239 (C.A.). For instance, if A, who is charged with housebreaking and stealing, admits that he was found in possession of the goods alleged to have been stolen but adds that he bought them at their full value on an open market, the statement is an admission of possession, which is against him, but it also contains an exculpatory statement that he bought them innocently. In such an event, the whole statement must be admitted.

Confessions As stated earlier, confessions are a species of admission. But, as will be noted presently from the definition, and the special rules that govern the admissibility of confessions, they differ from admissions.

Definition The Evidence Act does not define a confession. However, East African courts have often relied on a decision (opinion) of the Privy Council in the case of Swami v. King Emperor (1939) 1 ALL E.R. 396), in which Lord Atkin stated, at page 405:

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“in their Lordships’ view, no statement that contains selfexculpatory matter can amount to a confession if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. Moreover, a confession must admit in terms either the offence, or, at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession”. (Emphasis added). His Lordship added: The definition is not contained in the (Indian) Evidence Act, 1872, and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused “suggesting the inference that he committed” the crime.

Admissibility of confessions A confession may or may not be admissible depending on the circumstances in which it was made and to whom it was made.

Confessions made to police officers No confession made to a police officer of any rank is admissible. (See S. 27 T.E.A.). It is that simple. You only need to ask yourself two questions: (1) Is the statement a confession? If so, (2) was it made to a police officer? If the two questions are answered in the affirmative, the statement is inadmissible.

Confessions made under a promise or threat No confession which is tendered in evidence must be rejected on the ground that a promise or threat has been held out to the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be made. Where an inducement has been made to a person accused of an offence in such circumstances and of such a nature as was likely to cause an untrue admission of guilt to be made, and the con-

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fession is made after the impression caused by the inducement has, in the opinion of the court, been fully removed, the confession is relevant and need not be rejected. (See S.S. 29 and 30 T.E.A.). These somewhat intricate provisions may be analysed thus: in the first place you should decide whether or not the statement amounts to a confession. If it is a confession, then the next question is whether it was made under a promise or threat. If it was made under a promise or threat, the court will next have to consider whether, in its opinion, such inducement was made in such circumstances and was of such a nature as to cause an untrue admission of guilt to be made. One of the things which the court would take into consideration here are the gravity of the promise or threat, and the circumstances in which the confession was made. If the court comes to the conclusion that the circumstances and the nature of the threat or promise were such as to cause an untrue admission of guilt to be made, then it must next consider, whether, at the time the person made the confession, in its opinion, the impression caused by the threat or promise had been fully removed. If it is of the opinion that at the time the confession was made the impression caused by the inducement had not been fully removed, and the inducement was of such a nature and the circumstances were such as to make an untrue admission of guilt to be made, the court will reject the confession. If, on the other hand, it is of the opinion that the circumstances and nature of the inducement were not such as to cause an untrue admission of guilt to be made, or, having found that the inducement was of such a nature and the circumstances were such as to cause an untrue admission of guilt to be made, but it is nevertheless of the opinion that at the time the statement was made the impression caused by the inducement had been fully removed, the court will not reject the confession.

Confessions made while in police custody No confession made while the person confessing is in police custody is admissible unless it is made in the immediate presence of a magistrate or justice of the peace. (See S. 28 T.E.A.). For instance, if a police officer, having arrested a man for an alleged theft calls a village chairman and asks such village chairman to ask the arrested person in the presence of such police officer what the man has done, and thereupon the chairman asks the arrested person and the arrested person in the presence of such police officer stated what he has done, and thereupon the chairman asks the arrested person and the arrested person confesses, in the presence of the police officer that he has stolen something, such confession will be inadmissible.

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Information received from accused in police custody When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant. (See S. 31 T.E.A.). These provisions are the only exception to the rule that a confession made to a police officer or in the presence of a police officer is inadmissible in evidence. But to be admissible, it must be shown that the statement led to a discovery of a fact in issue or some relevant fact, and only that part of the statement which led to the discovery should be admitted. In the case of Nanyalika v. R (1971) H.C.D. 314), the appellant was convicted on two charges of (a) entering a dwelling house with intent to steal, and (b) stealing. The appellant made statements to a police officer leading to the discovery of several stolen articles. On appeal, the High Court (Biron, J.) said: “The confession to the police officer is naturally inadmissible as laid down in sections 27 and 28 of the Evidence Act 1967. However, the evidence that the appellant showed the police the spot where the complainant’s stolen box was recovered, and also his leading the police to the laundryman from whom the complainant’s stolen shirt was recovered, is admissible and fully justified those convictions”. His Lordship added: “. . . the evidence as to the appellant leading the police to the house of the complaint, whereby the police first discovered that it had been entered and the sandals stolen there from is admissible against the appellant as provided for in section 31 of the Evidence Act 1967”.

Confession as a result of secrecy, deception, etc. The mere fact that a confession was made under a promise of secrecy, as a result of deception practised on the accused, or when he was drunk, or in answer to a question which the accused need not have answered, or as a result of not having been warned that it might be given in evidence against him, does not render such confession inadmissible. (See S. 32 T.E.A.). Let us take one example: B, who is a neighbour of A, suspects A to have broken into the shop of C and stolen goods there from. B then goes to A and

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tells A, falsely, that he, B, is anxious to find the thieves who broke into C’s shop so that he can buy some of the stolen articles, and he intimates to A that he, B, would keep the whole thing secret. Thereupon A tells B that he is the person who broke into the shop and stole the articles there from and promises to sell some of the stolen articles to B provided that B keeps his promise of secrecy. In those circumstances, A’s confession to B is admissible although it has been obtained under a promise of secrecy. It has been held, however, that a judge or magistrate may refuse to admit a confession in any of the above circumstances if he is of the opinion that the statement was not voluntary or was made in circumstances that rendered it unreliable or unfair. In the case of Nayinda s/o Batungwa v. R. (1959) E.A. 688), the Court of Appeal had occasion to deal with the provisions of section 29 of he Indian Evidence Act, 1872, which is identical to section 32 of the Tanzania Evidence Act, 1967. In that case the Court stated, at page 694: “We see nothing in section 29 which negatives the discretion of a judge to refuse to admit in evidence a statement by a prisoner if, to use the words employed in R. v. Voisin (1918) 1 K.B. 531), the trial judge “thinks the statement was not a voluntary one in the sense abovementioned, or was an unguarded answer made under circumstances that rendered it unreliable, or unfair for some reason, to be allowed in evidence against the prisoner”.

Retraced and repudiated confessions and the evidential value of confessions generally The definitions of and distinction between retraced and repudiated confessions have been made amply clear by the Court of Appeal in the case of Tuwamoi v. Uganda (1967) E.A. 84, where the Court stated, at page 88: “We now come to the distinction that has been made over the years between a statement “retracted” and a statement “repudiated”. The basic difference is, of course, that a retracted statement occurs when the accused person admits that he made the statement recorded but now seeks to recant, to take back what he said, generally on the ground that he had been forced or induced to make the statement, in other words that the statement was not a voluntary one. On the other had a

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repudiated statement is one which the accused person avers he never made”. The Court went on to enunciate the law governing confessions generally, be they retracted, repudiated, or admitted confessions, and stated, at pages 90 – 91: “On reconsideration of the position we find it difficult to accept that there is any real distinction in principle between a repudiated and a retracted confession. . . A conviction can be founded on a confession of guilt by an accused person. The prosecution must first prove that this confession has been properly and legally made. The main essential for the validity of a confession is that it is voluntary, but the other legal requirements of each territory must also be established. . . If the court is satisfied that the statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and in doing so will consider the weight to be placed on any confession that has been admitted. In assessing a confession the main consideration at this stage will be, is it true? And if the confession is the only evidence against an accused then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with that degree of certainty required in a criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted, but when an accused person denies or retracts his statements at the trial then this is a part of the circumstances of the case which the court must consider in deciding whether the confession is true”. The Court went on: “We would summarise the position thus – a trial court should accept any confession which has been retracted or repudiated or both retracted and repudiated, with caution, and must before founding a conviction on such confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after

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considering all the material points and surrounding circumstances that the confession cannot but be true”. The next important point to remember about retracted and repudiated confessions is the procedure to be followed where the accused at his trial either retracts or repudiates his confession. When such a situation arises, the court will hold what is called “a trial within a trial”. In other words, the public prosecutor will be called upon to adduce evidence from such witnesses as were present or know the circumstances in which the confession was obtained including the person to whom the statement was made and the interpreter (if any). The purpose of such evidence is to prove that the statement was made by the accused, and that it was made voluntarily. After the prosecution has adduced such evidence, the accused will be called upon to give such evidence or make such statement as he wishes in order to prove his allegation that he never made the statement, or that he did not make it voluntarily, as the case may be. The accused may also call such witnesses as he deems necessary to support his allegation. Thereafter the court will make a ruling, on the basis of the evidence given in the “trial within a trial”, whether or not the accused made the statement, and if so, whether it was voluntarily made. If the trial is with assessors, the assessors must not be present during the “trial within a trial”. After the ruling the assessors are called in and, if the statement has been ruled to be admissible, the evidence of the prosecution regarding the manner in which the statement was taken is given again, and the statement is read over to the assessors. (See Kinyori v. R. 1956) 23 E.A.C.A. 480, and Ezekia v. R. (1972) H.C.D. 240). It should be borne in mind that where the prosecution seeks to rely on a confession, the burden of proving that the confession was voluntary lies on them. (See Ezekia’s case (supra). If the statement is held to be inadmissible, the assessors should not hear about it. Further, it has been held that if it is ruled to be inadmissible, then it cannot later be used by the prosecution in cross-examining the accused.

Confessions implicating co- accused If an accused person has made a statement affecting himself and such confession also affects another accused person with whom he is being jointly tried for the same offence, or for different offences arising out of the same

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transaction, such confession may be taken into consideration as evidence against that other person, as against the maker of it. (See S. 33 T.E.A.). Such evidence however, must be treated with caution as it is evidence of an accomplice (See R. v Mabuku and Another (1972) H.C.D. 95). In the case of Gopa s/o Gidamebanya and Others v. R. 20 E.A.C.A. 318) the Court considered the application of these provisions as contained in section 30 of the Indian Evidence Act, 1872, which is identical with section 33 of the Tanzania Evidence Act, 1967, as amended by section 19 of Act No. 16 of 1971, and stated, at page 322: “a confession can only be used as lending assurance to other evidence against the co-accused, evidence which only falls short by a very narrow margin of the standard of proof necessary for a conviction”. In the case of Karaya s/o Njonji and Others v. R (20 E.A.C.A. 324) the Court dealt with the same provisions and said, at page 326: “We are quite satisfied, however, from our study of the Indian cases that it is incorrect to regard a confession made by one accused in an extra judicial statement as a basis for a case against a coaccused, and to hold that, with some corroboration it is safe to convict. On the contrary what is needed is independent evidence from a trustworthy source, which when linked and supported by the confession of the co-accused, removes beyond any reasonable doubt the question of innocence”. (See also Ezera Kyabanamaizi and Others v. R. (1962) E.A. 309 (C.A.).

Reliance on confessions generally From the foregoing, it is quite clear that a public prosecutor must not place total reliance upon confessions in attempting to secure a conviction. The circumstances under which it was made may render it inadmissible in evidence, or, if admitted, the court may place little reliance on it in the absence of other independent evidence. The warning cannot be better sounded than in the words of Barth, C.J. in the case of R. v. Kamau (1924) 10 K.L.R. 8, in which he stated: “Short-cuts are usually inexpedient, and every effort should be made to prove the case alleged against an accused without a reliance on a

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confession which can as easily be retracted as made. The police should not be satisfied that, a confession having been obtained, a case is complete”.

Chapter 26

DOCUMENTARY EVIDENCE Definition “Documentary evidence” means all documents produced as evidence before the court, and “document” means any writing, typewriting, printing, photostat, photograph and every recording upon any tangible thing, any form of communication or representation by letters, figures, marks, or symbols or by more than one of these means, which may be used for the purpose of recording any matter provided that such recording is reasonably permanent and readable by site (see s. 3 TEA). Documents that are often produced in court are those of handwriting, printing, photostat, photograph and typewriting.

Primary and secondary evidence Documentary evidence is divided into two categories, namely, primary and secondary evidence. As the rules regarding their admissibility differ, a public prosecutor should have some idea of those categories. The rule is that unless there are special circumstances, a document can only be proved by primary evidence. In other words, for a document to be admitted, it must be the document itself, that is, the original document (see s. 66 TEA). Secondary evidence which may be produced in the absence of primary evidence, in certain circumstances, include certified copies of originals; copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and the copies compared with such copies; copies made from and compared with the original; counterparts of documents as against the parties who did not execute them; and oral accounts of the contents of a document given by some person (see s. 65 TEA).

Admissibility of secondary evidence Secondary evidence is admissible, among others, in the following circumstances:

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1. when the original is in the possession or power of the person against whom the document is sought to be proved, or of a person out of reach of, or not subject to the process of the court, or on failure of the possessor of the original to produce it after due notice; 2. when the contents of the original or the existence of it are proved to be admitted in writing by the person against whom it is intended to be proved; 3. when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect, produce it in reasonable time; 4. when the original is of such a nature as not to be easily moveable; 5. when the original is a public document; 6. when the original is a document of which a certified copy is permitted by the Evidence Act or by any written law to be given in evidence; and 7. when the original consists of numerous accounts or other documents which cannot be conveniently examined in court, and the fact to be proved is the general result of the whole collection (see s. 67 TEA). It is for the party seeking to have secondary evidence admitted to prove that such secondary evidence falls under one of the foregoing categories. Such party must first adduce evidence to show the circumstances in which the primary evidence has been made unavailable before attempting to introduce the secondary evidence under any of the exceptions.

Proof of execution of documents A document has little or no evidential value unless it goes some way to prove the case or provides the basis on which the evidence connecting the accused is founded; and in a number of cases involving documentary evidence the case turns on the question as to who executed a particular document. It is, therefore, the duty of a public prosecutor to lead evidence to prove the execution of a particular document he desires to be produced. If the case for the prosecution is that the accused executed the document or made it in any other way, the signing or making of such document must be proved (see s. 69 TEA). There are various ways in which the signature or handwriting of the person alleged to have executed a document may be proved. One such means is the evidence of a handwriting expert, and in other cases the opinion of nonexperts too may be used. Secondly, any signature or writing admitted or proved to the satisfaction of the court to have been written by the person con-

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cerned, may be compared by a witness or by the court with the one which is to be proved, even if the signature or writing has not been proved for any other purpose. Thirdly, the court may direct any person present in court to write any words or figures alleged to have been written by such person (see s. 75 TEA). These provisions remind me of a case in which I applied them and avoided a wrongful conviction. The accused, a taxi driver, was charged with the offence of stealing a battery. The accused person’s defence was that he bought it from a motor mechanic who gave him a “receipt” written by the motor mechanic and that he was ready to produce the receipt and wanted the mechanic summoned. When the mechanic was called by the prosecution to give evidence, the mechanic, naturally, denied having made the receipt. Police had not bothered to seize the receipt from the accused. In fact my public prosecutor resisted the admission of the receipt in evidence on the ground that its execution had not been proved and that the accused might have made it himself. I ruled that it be examined by the court. After I had examined it, I caused both the accused and the mechanic to copy it on separate pieces of paper. This was done. Both the public prosecutor and I were stunned at the result. The result was that the writing on the receipt was unmistakably that of the mechanic. It was a laboured scroll of a barely literate person. When I asked the mechanic if he still wanted the court to believe that the receipt was not made by him, he broke down and confessed having made the receipt. I need not dot the ‘i’s’ and cross the ‘t’s’ as to what happened to the accused and our mechanic. Where the person admits having executed a document, that is sufficient proof of execution as against him. If a document is required by law to be attested, it cannot be used as evidence unless at least one attesting witness, if available, has been called to prove its execution (see s. 70 TEA). If none of them is available, it must be proved that the attestation of at least one of them is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person (see s. 71 TEA).

Presumption as to documents The court is required to presume that certain types of documents are genuine and contain what they purport to contain (see s. 88 TEA). This presumption, however, is rebuttable. The court will also presume that any officer by whom a document purports to have been signed or certified held at the time the title which he claims in the document (see s. 88(2) TEA). The

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same is true with a record of judicial proceedings. The court will presume such record to be genuine, that any statement as to the circumstances in which it was taken, purporting to be made by the person signing it, are true, and that such evidence was duly taken (see s. 89 TEA). Further, a court is required to presume the genuineness of every document purporting to be the Government Gazette of the United Republic of Tanzania or of Zanzibar, a newspaper or journal, or to be a copy of a private Act of the National Assembly, printed by the Government Printer, and every document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. A court is also required to presume that maps or plans purporting to be made by authority of the Government were so made and are accurate; but where maps or plans have been made for the purpose of any legal proceedings such maps or plans, those must be proved to be accurate. Finally, the court is required to presume the genuineness of every book purporting to contain reports of decisions of the courts of any country (see ss. 90–92 TEA). Other matters which the court is required to presume as having been duly executed, genuine and /or accurate are covered in sections 93–99 (inclusive) of the Evidence Act.

Public and private documents Documents are classified as public or private documents. Public documents are (1) documents forming the acts or records of acts of (a) the President, (b) of official bodies and tribunals, (c) of public officers, legislative, judicial and executive, and (d) public records kept in the United Republic of private documents. All documents outside these categories are classified as private documents (see ss. 85–87 (inclusive) TEA). The procedure to be followed in proving or producing these documents is contained in sections 85–87 (inclusive) of the Evidence Act.

Chapter 27

OPINION EVIDENCE As a general rule evidence of opinion of witnesses is not admissible in evidence. It is for this reason that such questions like “What is your opinion?”, “What did you think about it?” are generally not allowed because essentially they call for the opinion of the witness. To this rule, however, there are two exceptions, namely, evidence of experts, and the evidence of non-experts on certain matters.

Expert evidence The opinions of people skilled in a subject or point in issue, for example, handwriting, finger impressions, art or any science, are admissible in evidence (see s. 47 TEA). It is for this reason that it is perfectly proper to ask a doctor to give his opinion as to the cause of death of any person, or as to what instrument could have caused a particular injury. Usually there is no difficulty in identifying who, in law, is an expert. But situations do arise when it becomes difficult to say who is an expert. Whether a particular person is an expert or not will depend on the nature of the question at issue, and the intricacy of the science, art, etc. In the case of Gatheru s/o Njahwara v. Republic, (1954) 21 EACA 384, the Court of Appeal for Eastern Africa held that when a trial court has to form an opinion upon the question whether a home-made gun is a lethal barrelled weapon, it must have the assistance of expert opinion, and that such “special skill” is not confined to knowledge acquired academically, but also includes skill acquired by practical experience; and that where a witness’s occupation imports a prima facie qualification, in questions touching upon matters usually dealt with in his capacity, he can be treated as an expert whose opinion is admissible. Difficulties often arise in subordinate courts in cases involving such substances as cannabis sativa (commonly known as bhang) and the local spirituous liquor commonly known as “moshi”. Who is an expert in identifying those substances? The usual practice is to send such substances to a Government Chemist who examines the stuff and issues a certificate as to its identity. In line with Gatheru’s case, it has been held that a police officer with vast experience in cases involving such substances may well be treated as an expert for the pur-

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pose of proving or disproving that the substance is or is not what it is alleged to be (see Iddi v. Republic, (1971) HCD n. 203; Salum Haruna v. Republic, (1968) HCD n. 37; and Jumanne Juma v. Republic, (1968) HCD n. 304). If, however, the witness has experience in an unrelated field, say, photography, and is treated as an expert witness for purposes of identifying the make of an engine, he will not be treated as an expert in the make of engines (see Omari Ahmed v. Republic, (1983) TLR 52). There is one more important point which public prosecutors often overlook when dealing with expert witnesses. Before proceeding to ask an expert witness on the point in issue, it is essential first to establish that he is, in fact, an expert in the field. He should, therefore, be asked questions such as his qualifications, his occupation, his experience and so on. That must be done even if the public prosecutor and the court know who he is. It must be on the court record. If the expert has prepared a report, it is not enough to ask him to produce it. He should be asked to explain it in as simple a language as he can. Not everyone understands the meanings of such words as “spercarditis” “subarachnoid”, “medulla oblongata”, etc. Besides, the bare opinion of an expert may sometimes be unconvincing. He must give reasons for his opinion. One more point: the mere fact that your expert has given an opinion which supports your case does not necessarily mean that your troubles are over. A court does not have to accept the opinion of an expert witness if it finds good reasons for not accepting it (see Fayed Hussein v. Republic, (1957) EA 844; and Hassan Salum v. Republic, (1964) EA 126). In the English case of Abinger v. Ashton, (1873) LR 17 Eq. 373, Jessel, M.R. observed at page 374: An expert is not an ordinary witness, who hopes to get his expenses, but he is employed and paid in the sense of gain, being employed by the person who calls him…Undoubtedly there is a natural bias to do something serviceable to those who employ you and adequately remunerate you. That is one reason why courts accept expert opinions with caution. In their book The Law of Evidence (9th Edition), Woodroffe and Ameer Ali have expressed the warning in similar terms. They have said, at page 440: The evidence of experts is to be received with caution, because they may often come with such a bias in their minds to support the cause in which they are embarked that their judgments become warped, and

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they themselves become, even when consciously disposed, incapable of expressing a correct opinion. So a public prosecutor should note this. Whenever possible expert evidence should be used for lending credence to some other evidence rather than relying entirely on expert evidence – unless it is the only evidence there is, in which case there is nothing you can do about it. This is far from suggesting that expert evidence cannot be a basis for a conviction. You can secure a conviction on expert evidence. But the court will have to be satisfied that such evidence is reliable. The court is entitled to form its own opinion on it.

Opinion of non-experts in certain matters When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom the document is purported to be written, or signed, that it was or was not written or signed by that person, is admissible in evidence. A person will be said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purported to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him (see s. 49 TEA). It is on the basis of these provisions that the opinion evidence of a superior officer in the office of an accused person, or the opinion of a co-worker of an accused person, as to the identity of an accused person’s handwriting or signature is admissible. Also admissible is the opinion evidence as to the existence of a public right or custom given by persons who would be likely to know of its existence (see s. 50 TEA). Where the question of relationship of one person to another is in issue or relevant, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is admissible. For example, if the question is whether A and B are husband and wife, the evidence of C, who is A’s brother, that A and B were usually received and treated as husband and wife, is admissible (see s. 52 TEA).

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There are other circumstances in which opinion evidence of non-experts is admissible for the simple reason that there is no better evidence available. Identity, age, health, intoxication, insanity, value, and speed are some of the instances. The weight to be attached to such evidence, however, will very depending upon the circumstances in which the witness saw the person or thing.

Chapter 28

BANKER’S BOOKS “Bank” or “banker” is defined as in section 76 of the Evidence Act as meaning any person carrying on the business of banking in the United Republic of Tanzania, Kenya or Uganda. A banker or officer of the bank cannot be compelled in any legal proceeding to which the bank is not a party, to produce any banker’s book, or to appear as a witness to prove matters, transactions and accounts recorded in such books unless by an order of a court made for special cause (see s. 80 TEA). So where the case requires the production of banker’s books and/or evidence of an officer of the bank as to transactions or accounts in the records of a bank, it is the prosecution’s duty or that of the investigating officer to apply to the court for a court order to have the books inspected, or produced before the court, and/or to have the officer of the bank as a witness in court. The application must state reasons for such application. On receipt of the application, the court will draw up an order requiring the banker to give a police officer the liberty to inspect, take copies, etc. from records of the bank, or requiring the banker to produce before the court such books, accounts or transactions as the case may be. The order, however, must be served on the bank three clear days before the same is to be obeyed, unless the court should direct otherwise (see s. 81 TEA). A copy of any entry in a banker’s book is prima facie evidence of such entry and of the matters, transactions and accounts recorded therein. Such a copy, however, cannot be received in evidence unless it has been proved that the book was at the time of making the entry one of the ordinary books of the bank, that the entry was made in the usual and ordinary course of business, and that the book is in the custody of or control of the bank. It is for the public prosecutor to see that this has been proved before seeking to produce the copies in court. Such proof may be given by a partner or officer of the bank, and may be given orally or by affidavit sworn before any commissioner for oaths or a person authorised to take affidavits (see s. 78 TEA). Even then the copy will not be received in evidence unless it has been further proved that such a copy has been compared with the original entry and is correct. Such proof must be given by some person who has examined

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the copy with the original entry, and may be given orally or by affidavit (see s. 79 TEA). Oral evidence by an officer of the bank as to the general result of the examination of banker’s books in the absence of the books or accounts or copies thereof may be admitted in evidence under the rule that secondary evidence is admissible where the original consists of numerous accounts or documents which cannot be conveniently examined in court, and the fact to be proved is the general result (see J.M.B. D’sa v. Republic, (1957) EA 627).

Chapter 29

EVIDENCE OF CHARACTER “Character” is defined in section 57 of the Evidence Act as including both reputation and disposition, and except as to rules of relevancy, evidence may be given of only general reputation and general disposition and not of particular acts by which reputation and disposition were shown. In criminal proceedings, evidence that the person accused is of good character is admissible, but the fact that he has a bad character is not admissible, unless evidence has been given that he has a good character, in which case evidence that he has a bad character becomes admissible (see s. 56 (1) TEA). The rule that evidence that an accused person has a bad character is inadmissible in evidence was restated by the Privy Council in the celebrated case of Makin v. Attorney-General for New South Wales, (1894) AC 57, where Lord Herschell stated, at page 65: It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which be is being tried. This case was referred to with approval by the Court of Appeal for East Africa in Kakindi’s case (supra) A public prosecutor, therefore, should not lead evidence to show that the accused is, say, a reputed thief in order to prove that the said accused committed the offence on which he is being tried. This rule covers direct evidence of bad character as well as innuendos of bad character (see Lighton v. Republic, (1951) EACA 309). To this rule, however, there are exceptions. These include evidence of previous convictions; where evidence of accused’s good character has been given; where the character of the accused is in issue; when it is admissible under rules of relevancy; and when the accused himself brings in the question of character into the case or where he has given evidence against any other person charged with the same offence (see s. 56 (2) TEA).

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Previous convictions After the court has convicted an accused person of an offence, evidence that the accused has previous convictions is admissible for the purpose of enabling the court to assess the punishment of the accused person in respect of the offence of which he has been convicted.

Where evidence of the accused person’s good character has been given If evidence has been given that the accused is of good character, then evidence that he has a bad character may be admissible. If, for example, an accused person or his advocate asks a prosecution witness with a view to establishing that the accused is of good character, or with a view of imputing bad character on a witness, then evidence that the accused is of bad character may be admitted. It should be noted, however, that where such imputations involving the character of a prosecution witness are an integral part of the defence, without which the accused cannot put his case fairly and squarely, then the accused cannot be cross-examined on his previous criminal history (see Royston v. Republic, (1953) EACA 147). But where an accused person or his advocate has been warned by the court about the danger of asking questions imputing bad character of prosecution witnesses, but such accused person or advocate persists in asking such questions indicating that the case against him has been fabricated, then cross-examination as to the character of the accused may be allowed (see Abdallah Katwe and Others v. Republic, (1964) EA 477). What this means is that questions by the accused as to character must not go beyond what is necessary for the purpose of putting forward his defence. Cases in which an accused person may put questions to prosecution witnesses imputing bad character of such witnesses without the accused’s bad character being admissible include cases of rape where the defence to the charge is consent of the complainant and the prosecutrix is alleged to be a woman of loose morals or a common prostitute.

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Where the character of the accused is in issue If the character of the accused is a fact in issue, then evidence of his bad character is admissible. For instance, if a person is charged with the offence of being a rogue and vagabond contrary to section 177(3) of the Penal Code, the question whether the accused has a criminal history becomes a fact in issue and so admissible in evidence.

When evidence of his bad character is admissible under rules of relevancy Evidence of the bad character of an accused person may be given where the purpose is to show the existence of any state of mind, such as intention, motive, knowledge, good faith, rashness, ill-will, etc., if the existence of any such state of mind is relevant. Makin’s, and Makindi’s cases are ready examples. In Makin’s case, after enunciating the general rule that the bad character of an accused person is not admissible, Lord Herschell added: On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

When the accused himself brings his own character into the case If an accused person himself brings his own character into the case, evidence of his character may be admitted, provided that such evidence was not necessary for his defence. So where an accused person, particularly if he is not defended by an advocate, asks a prosecution witness as to the accused’s own character, a magistrate must immediately find out from the accused what his defence is and what is the purpose of asking the question. The magistrate must also warn the accused the danger of bringing his own character into the case. In the case of Ali bin Hassan v. Republic, (1960) EA 171, in conducting his defence, the accused elicited from a witness the following answer:

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Yes, I know that you have recently come out of jail where you were sent for being found in possession of a big quantity of date wine. Thereupon the prosecutor was allowed to cross-examine the accused on his bad character and previous convictions. On appeal, the High Court stated, at page 172: From the very first question it was obvious that the appellant was bringing his bad character into issue. At this stage his bad character was inadmissible in evidence and could only have become relevant in the unlikely event that it was essential to the appellant’s defence that he should bring out his bad character. Immediately the magistrate should have stopped the accused and inquired of him what was his proposed defence and have warned him of the danger he ran in persisting in this line of questioning. In the case of Omondi and Another v. Republic, (1967) EA 802, the court was more emphatic on this point. It stated, at page 806: It is, we think, clear that the court has a discretion to disallow questions about convictions and bad character even if the accused has in strict law let them in by the conduct of his defence or otherwise. If the evidence of bad character of an accused person is wrongly admitted, it may be a ground for quashing the resulting conviction (see Onyango v. Uganda, (1967) EA 386). The test, however, is whether the admission of such evidence has occasioned any miscarriage of justice, and that will depend on the circumstances of each case.

Chapter 30

BURDEN OF PROOF The expression “burden of proof ” is defined in many ways depending upon the sense in which it is used. For our purposes, it may be defined as meaning the obligation to prove alleged facts; that is, the obligation to adduce evidence to prove or disprove alleged facts, and the failure to discharge which will mean risk of failure in the case. So the burden of proof in any case lies on him who would fail if no evidence at all were given by either side (see s. 111 TEA). Whoever, therefore, desires any court to give judgment in his favour as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Such a person is said to have the burden of proof. In Tanzania, as in all common law countries, in criminal cases, it is for the prosecution to prove its case beyond reasonable doubt against an accused person and not for the accused to prove that he is innocent, In other words, except where otherwise provided by law, in criminal cases the burden of proof is always on the prosecution. All that an accused person need do to be entitled to an acquittal is to give an explanation that creates reasonable doubt in the mind of the court.

What is proof beyond reasonable doubt? It is not easy to express in words what amounts to proof beyond reasonable doubt. Lord Denning gave one of the most lucid definitions of this phrase in the case of Miller v. Minister of Pensions, (1947) 2 All ER 372, in which he said: . . . and for that purpose the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave only a remote possibility in his favour which can be dis-

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missed with the sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will do. This dictum has often been quoted with approval by courts in Tanzania. It should be noted, however, that the degree of proof beyond reasonable doubt will vary with the degree of the seriousness of the offence under consideration. The more serious the offence the higher ought to be the burden of proof. The burden which lies on the prosecution, therefore, is not discharged merely by showing that the story of the accused is not truthful. The prosecution must prove its case beyond reasonable doubt. As was stated by Cross, J. in the case of Moshi d/o Rajabu v. Republic, (1967) HCD n. 384: The magistrate’s refusal to accept a defence as truthful is not a proper basis for conviction; here, the magistrate’s judgment did not give any indication that he was aware that the onus of proving guilt of the accused is on the prosecution. This principle was also referred to with approval by Georges, C.J. in the case of Fanuel s/o Kiula v. Republic, (1967) HCD n. 369, in which he stated: It is not necessary to accept a defence of the accused in order to find him not guilty. All that an accused need do is to raise a reasonable doubt as to his guilt. A court, therefore, must not convict a person on the basis of the weakness of his defence. The prosecution’s evidence must support its case on its own. This does not mean that the court should consider the evidence of the prosecution in isolation. It must consider the entire evidence as a whole; and a lie given by the accused may be taken into consideration in assessing the whole evidence on record and deciding the credibility of the versions given.

Defence of alibi Where an accused person puts up a defence of alibi, the law does not require him to establish such alibi. It is sufficient if the alibi creates reasonable doubt in the mind of the court. In the case of Leonard Aniseth v. Republic, (1963) EA 206, the Court of Appeal for East Africa stated this principle and

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quoted with approval a head note in the English case of Republic v. Johnson, (46 CR. App. R. 55) which reads: A prisoner who puts up an alibi as an answer to a charge does not assume any burden of proving that answer, and it is a misdirection to refer to any such burden as resting on the prisoner in such a case.

Prima facie case In criminal trials, there are two stages. The first stage is when the court has heard all the evidence of the prosecution and the prosecution has closed its case. The second stage is the defence case. At the stage of the close of the prosecution’s case, the court has to consider whether or not a case has been made out against the accused sufficiently to require him to make his defence. If the court is of the opinion that a case has been made out against the accused sufficiently to require him to make his defence, there is said to be a case to answer or a prima facie case. Then the second stage sets in: the court will call upon the accused to make his defence. If, on the other hand, the court finds that a prima facie case has not been made out by the prosecution sufficiently to require the accused to make his defence, the accused is said to have no case to answer, and the accused must be acquitted (see Murimi v. Republic, (1967) EA 542). The question which often troubles public prosecutors and magistrates is this: when is a prima facie case said to be made out? The leading authority on this question is the case of R.T. Bhatt v. Republic, (1957) EA 332, in which the court described when a prima facie case is said to be established. The Court stated, at pages 334–335: Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one ‘which on full consideration might possibly be thought sufficient to sustain a conviction’. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes that the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends on whether there is ‘some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence’. A mere scintilla of evidence can never be enough: nor can any amount of worthless dis-

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credited evidence. It is true, as Wilson, J. said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a ‘prima facie case’, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. The question whether or not there is a prima facie case, therefore, necessarily involves some evaluation of the evidence and consideration of the principles of law involved or applicable to the case. The court will then ask itself whether on that evidence and law the court could convict if no explanation is offered by the defence. If the court is not so satisfied, a prima facie case has not been made out; and so the court will acquit the accused person. There may be cases where a magistrate will not find it easy to decide. In such a case, it is preferable to hold that the accused has a case to answer.

Burden of proof shifted by statute In certain cases the burden of proof has been shifted by statutory provisions on to the accused. Among such statutes is the Wildlife Conservation Act. How heavy is the burden of proof on the accused in such cases? This will normally depend on the wording of the particular statutory provisions. Generally speaking, however, it would appear that where a statute shifts the burden of proof on to an accused person, that accused person is required to discharge that burden on a balance of probabilities. It was so held by the Court of Appeal for East Africa in the case of Repubic v. Francis Kioko, (1971) HCD n. 431. But a public prosecutor should note that even where the burden of proof is shifted by statute on to an accused person, the prosecution is not thereby relieved of its on burden. You cannot adduce no evidence and then hope to secure a conviction simply because the accused has the burden of proof. If, for example, the accused is charged with the offence of being in unlawful possession of Government trophies, it is not enough to merely allege it: evidence must be adduced to establish that the articles in question are, in fact, Government trophies and that the accused was found in possession of them. It is then that the burden of proof shifts to the accused person: he should show that he was in lawful possession, or that he was not in possession of

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them. There is authority for the proposition that even where the burden on an issue is upon the accused, it still remains for the court to be satisfied beyond reasonable doubt as to the guilt of the accused on the whole evidence (see Ali Ahmed Saleh Amgara v. Republic, (1959) EA 654 and Republic v. Popat, (1961) EA 263).

Chapter 31

CREDIBILITY OF WITNESSES AND WEIGHT OF EVIDENCE Questions of credibility of witnesses, the weight of their evidence and sufficiency of evidence cannot be determined by rules of thumb. It depends, largely on common sense, logic and experience. In the words of Birch, J. in the Indian case of Madhub Chunder, (1874) 21 WR Cr. 13, 19: For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and in each, common sense and shrewdness must be brought to bear upon the facts solicited. However, in determining credibility, weight and sufficiency of evidence, the courts are guided by such matters as consistencies and inconsistencies in the evidence of a witness or witnesses, the presumptions that apply, the burden of proof, corroboration, documents available (if any), demeanour of witnesses, etc.

Test of credibility of witnesses The credibility of a witness depends upon his knowledge of the facts to which he has testified, his intelligence, his disinterestedness or independence in relation to the issues in the case and the results thereof, his integrity, and veracity. Matters which obviously affect the credibility or weight of the evidence of a witness are his means of knowledge, the opportunity he had in observing the matters or events to which he has deposed, his reasons for remembering or believing what he has said, his experience (if, say, he is an expert witness), his powers of memory and perception and any special circumstances affecting his competency in the particular case. From the foregoing, it must be obvious to the public prosecutor that it is his duty to enhance the value of the testimony of a witness by ensuring as far as possible that the testimony of his witness is not easily impugned. The credibility of a witness can be impeached by cross-examining him to test his veracity, to discover who he is or what he is in life, his interest (if any) in the case, or by injuring his character (if such evidence be admissible). Further, a witness may be impeached (a) by evidence of persons who testify that they, from

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their knowledge of the witness, believe him to be unworthy of credit; (b) by proof that the witness has received a corrupt offer to induce him to give evidence; (c) by proof of former statements inconsistent with any part of his evidence; and (d) when a man is prosecuted for rape, or attempted rape, it may be shown that the prosecutrix is of generally immoral character (see s. 164 TEA).

Use of previous statements to contradict a witness One of the commonest methods of discrediting a witness is by using previous statements made by the witness whose contents contradict the evidence of the witness. If it does contradict his evidence, it must be put in (see Matofali v. Republic, 20 EACA 232). While on this point, it is well to point out that a defence counsel is entitled to see an earlier statement of a witness which the police have recorded. A public prosecutor has no right to refuse to give it to the defence. As the Court of Appeal for Eastern Africa pointed out in the case of Kartar Singh Bharaj and Another V.R., 20 EACA 134, at page 137: When the witness gives evidence, the defence should call for the earlier statement recorded by the police. The defence are entitled to see this statement and to cross-examine the witness on any apparent discrepancies. The person who recorded the earlier statement should then be called and prove and put in as an exhibit the statement. But that does not make what is said in the statement substantive evidence at the trial. Its only purpose and value is to show that on a previous occasion, the witness has said something different from what he has said in evidence at the trial, which fact may lead the Court to feel that his evidence at the trial is unworthy of belief. However, before the statement is admitted, it must become plain that the earlier statement is contradictory of the statements made by the witness in court.

Confirming evidence by circumstantial questions It should be noted that it is generally unsafe to leave the witness after he has described, say, what he saw at a particular time at the scene. The prosecutor must ask further questions which will elicit from the witness circumstantially confirming evidence. In other words, the witness should be asked ques-

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tions as to any circumstances which he observed at or near the place at which an event occurred. Such circumstances, if proved, often tend to confirm the testimony of the witness as to the facts to which the witness has testified. The questions so asked are not for the purpose of proving a fact in issue, but to test the truthfulness of the witness (see s. 165 TEA). For example, if in a case of rape, a witness testifies that he saw the accused lying on top of the complainant in the bush, you can ask the witness circumstantial questions, such as questions relating to the topography at the scene. A correct description of the scene will tend to confirm that the witness was, in fact, there.

Use of previous statements to prove consistency In addition to use of previous statements for the purpose of contradicting or impeaching the credibility of a witness, such statements may be used to prove that the evidence which the witness has given in court has not varied from his accounts of the facts given on an earlier occasion (see s. 166 TEA). When consistency is shown by such earlier statement, it has direct bearing on the weight to be attached to the evidence of such witness. In the case of Shabani bin Donaldi V. R. 7 EACA 60, the Court of Appeal for Eastern Africa said: We desire to add that in cases like this, and indeed in almost every case in which an immediate report has been made to the police by someone who is subsequently called as a witness, evidence of the details of such report (save such portions as may be inadmissible as being hearsay or the like) should always be given at the trial. Such evidence frequently proves most valuable, sometimes as corroboration of the evidence of the witness. . ., and sometimes as showing that what he now swears is an afterthought, or that he is now purporting to identify a person whom he really did not recognize at the time, or an article which is not really his at all. (See also Kella and Another v. Republic, (1967) EA 809.) This point is often overlooked by public prosecutors. This point becomes even more important where the prosecution’s case depends on the evidence of a single witness, or on the evidence of an accomplice, or in rape cases (see Leonard v. Republic, 10 EACA 113,114).

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Demeanour of witnesses One other clue as to the credibility of a witness is his/her demeanour, that is, the manner in which she/he comports herself/himself in court when giving evidence. The look or manner of the witness, which includes hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration, etc., reveal much about the witness and his evidence. These are or should be carefully watched by magistrates. It is for these reasons that findings of fact by a trial court are not lightly interfered with on appeal. It is appreciated that a trial court has had the advantage of hearing and seeing the witnesses. The trial court’s findings as to which witness to believe and which one not to believe are based as much on the content of the evidence of witnesses as on their demeanour. As was stated by Lord Shaw, afterwards Lord Dunedin, in the case of Clark v. Edinburgh Tramway: Witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuances of their expressions and even the turn of an eyelid, left an impression upon the man who saw and heard them which could never be reproduced in the printed page.

Inconsistencies in the evidence Material inconsistencies or contradictions in the evidence of various witnesses, or in the evidence of a witness, can be very damaging to a case for the prosecution and are often fatal. If, for instance, in a case resting on identification, one witness says that the incident happened during the night and that it was so dark that you could not see ten paces away and another says that it was during daylight, such inconsistency can be damaging. It must be noted, however, that it is not every inconsistency that will be fatal to a case. It depends on the nature of the inconsistency and on what points. Inconsistencies on broad and material points are the ones to worry about and not on trivial details. On this point, in his book The Law of Evidence(11th Edition), Sarkar has pointed out, at page 50: Discrepancies in the testimony of various witnesses on material or broad points have to be carefully weighed in arriving at the truth. But trifling discrepancies should be ignored, as they are often a test of truth. Several persons giving their versions of a transaction witnessed by them are nat-

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urally liable to disagree on immaterial points. Their powers of observation, expression or memory are not the same and honest differences are easily possible. In the case of Makuzi Zaidi and Another v. Republic, (1969) HCD n. 249, Georges, C.J. made similar remarks. He said: There were discrepancies in the evidence for the prosecution but they are not such as to make the evidence totally unworthy of belief. Whenever witnesses testify about quickly moving events there are likely to be discrepancies. Indeed if there are none, that would be, itself, cause for some suspicion that the story had been rehearsed. So a public prosecutor should not start panicking merely because one of his/her witnesses has said something different from other witnesses on an immaterial point. What is or is not material will, of course, depend on the nature of the case and the rest of the evidence.

Circumstantial evidence The nature and value of circumstantial evidence In Osborn’s Law Dictionary (4th edition), “circumstantial evidence” is defined as: A series of circumstances leading to the inference or conclusion of guilt. Evidence which although not directly establishing the existence of the facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or relation to them. In the case of Republic v. Yusuph Mohamed Osman (Dar es Salaam High Court Criminal Session Case No. 66 of 1966 (unreported), Georges, C.J. said: Now, there are, normally speaking, two types of evidence, circumstantial evidence and direct evidence. You have direct evidence when someone comes and says, I saw X take a panga and cut Y’s neck”. That is direct evidence. Someone comes and says “I have seen the very act”. In circumstantial evidence no one has seen the direct act. But, for instance, you may be outside a room, you may hear a tremendous tussle inside, and then you may see X emerge with a bloody panga in his

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hand. When you go into the room ... you see Y lying there dead and there is nobody else there. So you infer from that that X must have copped Y with a panga. It may not necessarily be so, but you deduce it from the facts you see, that there was a struggle, that he emerged with a panga, and so on. . .these are circumstances from which an inference may be drawn, and this is circumstantial evidence. In many cases direct evidence is not available, and so the prosecution has to rely solely on circumstantial evidence. It has sometimes been said that circumstantial evidence is inferior in probative value to direct evidence. But, as Georges, C.J., told his assessors in the Osman case (supra): I must tell you also that it is no criticism of evidence to say that it is circumstantial. It is often said that circumstantial evidence, when it leads to one irresistible conclusion, is probably better than direct evidence. Because it is easy to make up one fact and come and say “I saw him cut him” – one person says this – but it is very difficult to make up a series of facts and have them all tying together to lead to one conclusion, because it requires several different minds on these things happening at different times and in different places and all pointing to the same conclusion. So that when circumstantial evidence leads irresistibly to one conclusion it is just as safe, and some people might say even safer, to convict than on the direct testimony of one or two witnesses who may easily have been induced for some reason or other to lie as to the event. In the case of Republic v. Sabudin Merali and Another (Uganda High Court Criminal Appeal No. 220 of 1963 – unreported), Sir Udo Udoma, C.J. had this to say on circumstantial evidence: The whole evidence of the prosecution was circumstantial. But it is no derogation to say that it was so; for it has been said that circumstantial evidence is very 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. The important thing to remember is that before a court can base a conviction solely on circumstantial evidence it must be satisfied that the inculpatory facts are inconsistent with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than the guilt of the accused. In

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other words, the circumstances proved must irresistibly point to one conclusion. They must not suggest two or more reasonable conclusions (see Simoni Musoke v. Republic, (1958) EA 715; and Mtani v. Republic, (1983) TLR 179).

Recent possession One of the commonest types of circumstantial evidence is evidence of recent possession. The doctrine of recent possession may be stated as follows: the possessor of goods recently stolen may be presumed to be the actual thief, or else a guilty receiver. His possession raises also, but less strongly, a further presumption that he was connected with the further crime that accompanied the theft. The essential elements of this rule are that the accused must have been found in possession, actually or constructively, of the article in question, and that such possession must be recent. If, for instance, A’s house is burgled at 10.00 p.m. and a suitcase with an assortment of clothes is stolen there from, and at 6.00 a.m. the following day B is found in possession of the suitcase together with its contents, the possession of the stolen articles will raise a presumption that B is the thief, and could further be presumed that B was further connected with the crime that accompanied the theft, namely, burglary, although no one saw B steal or break into A’s house. So B could be convicted of the offences of burglary and theft under the doctrine of recent possession. It should be noted, however, that these presumptions are presumptions of fact and so can be rebutted. If the accused offers a reasonable explanation as to how he came into possession of those properties, which explanation is compatible with innocence, for example, the presumption will be said to have been rebutted. As was stated by Wilson, Ag. C.J. in the case of George Komorowiski v. R.(1 TLR (R) 332, at page 323: The doctrine of “recent possession” – that the possession of property recently stolen raises a discretionary presumption that the possessor is either the thief or else a guilty receiver – is so well known as hardly to need restatement. The presumption of facts thus raised is, of course, rebuttable and it is not so strong as to displace the presumption of innocence to the extent of throwing on the accused the burden of giving legal proof of the innocent origin of his possession. He merely has to give a reasonably probable explanation of how his possession originated and if he gives such an innocent explanation he is entitled to an

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acquittal unless the prosecution can disprove his story. Even if he gives an explanation which does not convince the court of its truth he need not necessarily be convicted. The test appears to be whether his story is one which might reasonably be true. Another question that often arises with regard to the doctrine of recent possession is: what period is recent enough for the doctrine to apply? There is no fixed period which can be said to suffice for the doctrine to apply. Each case depends on its own facts, and in each the nature of the article in question and the length of time will matter. If it is an article that easily moves from hand to hand, and depending on the period that passed, the presumption will be less readily drawn. Conversely, if it is an article which does not easily pass from hand to hand, the presumption will be more readily drawn; but the period of time must be considered in relation to the nature of the article. In any event, the period of time is a very relevant factor. In the words of Hearne, J. in the case of Marwa bin Siongo v. Republic, 1 TLR (R) 201 at page 202: The law on the subject of recent possession is: If a person is in possession of stolen property recently after the stealing, it lies on him to account for his possession and if he fails to account for it satisfactorily, he is reasonably presumed to have come by it dishonestly. It depends on the surrounding circumstances whether he is guilty of receiving or stealing. Lapse of time progressively weakens the presumption and finally extinguishes it. When possession is not recent no presumption of guilt arises from the mere fact of possession, for at this stage “it might be reasonably inferred that the prisoner had come honestly by the property.” In deciding the question whether possession is recent relative to the stealing, regard must be had to the character and value of the property. (See also Masiku v. Republic, (1967) HCD n. 454; Mahambi v. Republic, (1968) HCD n. 483; Lulu v. R., (1968) HCD n. 330; and Maruzuku Hamisi v. Republic, (1984) TLR 1)

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Number of witnesses and corroboration As a general rule, unless some law prescribes otherwise, no particular number of witnesses is required to prove any particular fact. In other words, a court can convict even on the basis of the evidence of a single witness. Some statutory provisions do provide from time to time that certain evidence requires corroboration. Even accomplice evidence does not, in law, require corroboration. It is only a rule of practice. So too with the evidence of a single witness (see Abdallah bin Wendo and Another v. Republic, 20 EACA 166).

Chapter 32

EXAMINATION OF WITNESSES The Order of Examination of Witnesses As is well known, there are three stages in the examination of witnesses. These are: examination-in-chief, cross-examination and re-examination (see ss. 146–247 TEA).

Examination-in-Chief This is examination of a witness by the party calling the witness. If the witness is called by the prosecution, for instance, after the witness has been duly sworn or affirmed, the public prosecutor will examine him first. That is called examination-in-chief. The object of examination-in-chief is to let the witness give all material facts which the witness knows and on which the party calling him depends in one way or another in proving his or her case. It is, therefore, imperative that you elicit from your witness all the material facts which he knows about the case. Do not omit to ask a witness in examination-in-chief the answer to which he knows and which is valuable to your case. If you omit it, you may never have the opportunity to ask it again. Get as much from your witness in examination-in-chief as you can.

Cross-examination When examination-in-chief has been completed, the accused or his advocate is given an opportunity to examine the witness. This is called cross-examination. The object of cross-examination is to test the accuracy or veracity of the witness’s evidence, to destroy or weaken it, or to obtain evidence which is favourable to the defence case.

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For this reason, cross-examination is not as restricted as examination-inchief. It must, of course, relate to relevant matters, but it does not have to be restricted to matters raised in examination-in-chief. Where there are more than one accused person, each of them must be given an opportunity of cross-examining the witness.

Re-examination This is the examination of a witness by the party calling the witness after cross-examination has been completed. It should be noted that in re-examination, questions must be restricted to matters raised in cross-examination. You may not ask questions in re-examination which would introduce new matters unless with the leave of the court. One more point: there can be no re-examination where there has been no cross-examination.

Leading questions A leading question is one which itself suggests an answer which the person putting the question desires from the witness (see s. 150 TEA). Or, as Sarkar puts it: It is a question assuming expressly or impliedly a material fact not testified to, which points out the desired answer to enable the witness to affirm such fact (op. cit. at page 1280). As a general rule, leading questions may not be asked in examination-inchief or in re-examination except with the leave of the court. But leading questions may be asked in cross-examination. The court, however, may permit leading questions in examination-inchief and re-examination when such questions concern matters which are introductory or undisputed, or which have, in the opinion of the court, been already sufficiently proved (see s. 152 TEA). Leading questions are also permitted where the witness is “hostile”. Although leading questions are permitted in cross-examination to test the accuracy, memory, or shake the witness’s credit, etc., questions which mislead the witness by making assumptions which are contrary to fact are not allowed (see Riano Lenalaimer v. Republic, (1960 ) EA 963).

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Indecent or scandalous questions The court has discretion to disallow any question which though proper in itself, appears to the court to be indecent or scandalous (see s. 160 TEA.). If, for example, in a trial of a case on a charge of rape, the proposed defence to the charge is that the woman consented, and that she is of loose morals, a question such as “Is it not true that you would allow even a dog to go to bed with you so long as it was for money?” may well be disallowed for being needlessly offensive, indecent and scandalous.

Hostile witness A witness is said to be hostile, as stated earlier, when by his testimony, conduct, attitude or demeanour, he appears to be biased or unwilling to tell the truth. A typical example is where a known eye-witness to an incident denies in his evidence that he was present, or gives evidence quite contrary to an earlier statement made by him on material points showing that he is not telling the truth and is biased. In such an event, the court will permit the party calling such witness to cross-examine the witness; that is, he may be asked questions to impeach his credit. The problem that most public prosecutors face is to decide when a witness is hostile and how to go about it. A hostile witness, it must be noted, is not the same as “an unfavourable witness”. A witness is not hostile merely because he gives unfavourable answers regarding the party calling him. A witness may give unfavourable evidence against the party calling him and yet be quite truthful. Such a witness cannot be said to be hostile. A hostile witness is one who tells lies about what he obviously knows, who deliberately changes his story, and from his demeanour is clearly biased against the party calling him. The procedure of dealing with a hostile witness is as follows: if the party calling the witness, say, the prosecutor, discovers in the course of examining the witness that what the witness is telling the court is materially different or inconsistent with the witness’s former statement, or any material part of it, to the police, the public prosecutor should apply to the court to treat the witness as a hostile witness. He should prove and put in the statement, and put the material passages to the witness so that the witness has an opportunity to explain any inconsistencies. Before the court can make a ruling on the application, it will have to be satisfied that the contents of the former statement and what the witness has told the court are substantially inconsistent. The witness, however, must be given an opportunity of explaining the alleged inconsistencies be-

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cause it sometimes happens that apparent inconsistencies are capable of a quite satisfactory explanation (see Mabati bin Ruadiba v. Republic, 5 EACA 52). When the court is satisfied that the witness is hostile in fact, and not merely unfavourable, it will grant the application to treat the witness as hostile. The public prosecutor will then proceed to cross-examine the witness. One thing must be borne in mind: if serious inconsistencies are revealed between the evidence of the witness and his earlier statement, the result will be that the court will take the witness to be unworthy of belief. Also to be borne in mind is that the statement which is put in to show that the witness is hostile, does not thereby become substantive evidence in the trial. Its only purpose is to show that the witness is hostile. It should also be obvious to the public prosecutor that once the witness has been treated as a hostile witness, the court will attach little or no weight to his evidence in deciding the issues in the case. In other words, treating a witness as hostile means that you are throwing his entire evidence overboard.

Refreshing the memory of a witness A witness may, while under examination, refresh his memory by referring to any writing made by himself or any other person at the time of the transaction or so soon afterwards if the court considers that the transaction was at that time fresh in his memory. But such writing must be produced and shown to the opposite party if it requires it (see ss. 168 and 172 TEA). Under this rule, then, a police officer may refresh his memory by referring to his diary, report book, or his statement, and a witness may refresh his memory by referring to the statement he made to the police. But the writing which the witness uses to refresh his memory is not evidence in the trial. In the case of an expert witness, he is permitted to refer to professional treatises (see s. 170 TEA). Before such writing can be used to refresh the memory of the witness, it must first of all be shown who made the writing, where, and when, so that it is shown that the writing was contemporaneous with the transaction. When that has been done, and the witness shows that he cannot remember a particular fact, the prosecutor or the person calling the witness should apply to the court for permission to show the writing to the witness for the purpose of refreshing the memory of the witness.

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Power of court for obtaining proper evidence The duty of a court of law is to arrive at the truth on matters in dispute. To that end, a court is given discretion to ask any question it pleases, in any form, at any time, and call for production of any document. The court will exercise this power if, in its opinion, answers to such question would help in the discovery of the truth (see s. 176 TEA). Neither the prosecutor nor the accused or his advocate may object to such questions. The role of the court to interrogate a witness, however, has its limits. In exercising this power a judge or magistrate ought to maintain judicial detachment and must not put himself in the position of a prosecutor or counsel for the defence (see Maina Ngotho and Others v. Republic., (1960) EA 453). Where the court has interrogated a witness, no party can, as of right, crossexamine the witness upon the matter. That can only be done with the leave of the court. If the interrogation comes after re-examination, the judge or magistrate will sometimes ask the accused or his advocate and the public prosecutor, if they wish to ask any questions arising from such examination by the court.

Visits to the locus in quo “Locus in quo” means the scene of an event, that is, the place in which or at which a transaction or incident occurred. In criminal cases it is often referred to as the scene of crime. The court may visit the scene or locus in quo at its own election, or on the application of either party to a dispute. The decision whether or not to visit the scene is, of course, that of the court. If the court decides to visit the scene, the accused and his advocate (if any), the witnesses who are able to explain anything at the scene, and the public prosecutor must be present. The purpose of visiting the locus in quo is to enable the court to understand the evidence better. The magistrate at the locus will examine it and may make such notes as he thinks will enable him to understand the evidence better. The notes must be made in the case file. At the scene or on returning to the court room, it is good practice for the magistrate to read over to the parties what he recorded at the scene so that the parties may examine the relevant witnesses on such matters. It should be noted that a visit to the scene must not be used for the purpose of investigating the case or for the purpose of seeking additional evidence. In the case of Kuyate v. Republic, (1967) EA 815, the appellant was charged with

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the offence of cattle theft. In his defence, he said that the animal in question was his property and that he had other cattle which had the same brand marks as the animal in question (a punch-hole in the ear) which he had kept at Turiani. The court reserved judgment for three days. On the day the judgment was set to be delivered, the court decided to visit “the herd at Madoto and Turiani where the accused’s cattle are” and noted this in the record. Allowing the appeal, the Court of Appeal for East Africa said, at page 816: Clearly the magistrate was not satisfied at this late stage that the appellant’s guilt had been proved, otherwise there would have been no need to visit the locus, and equally clearly, in our view, he should then have acquitted the appellant. It is no part of a magistrate’s duties to investigate crime; that must be left to the police (Bhogani v. Republic). It is competent for a court to view the locus at any time during trial, but such view must take place in the presence of the accused, his counsel (if any), the prosecutor, and such of the witnesses as may be required for the purpose of any demonstration or explanation.. A view should not be held for the purpose of seeking additional evidence, but to clarify doubts which may have arisen in the course of evidence, for instance as to the nature of the terrain. A proper note must be made on the record of what took place, and if necessary evidence should be recorded, if any additional matter has come to light, and the accused given an opportunity to cross-examine. Another reason why a court should not use the visit to the locus for the purpose of seeking additional evidence is that in that way the magistrate turns himself into a witness who cannot be cross-examined.

Effect of improper admission or rejection of evidence The improper admission or rejection of evidence is not, per se a ground for quashing a conviction if it appears to the court before which such objection is raised that, independent of the evidence objected to and admitted or wrongly rejected, there was other sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision (see s. 178 TEA). The question the court has to decide on appeal is whether the admission of inadmissible evidence or the rejection of admissible evidence has occasioned a failure of justice.

Part IV

The Art of Conducting Cases

Chapter 33

THE PUBLIC PROSECUTOR AND CASE PREPARATION The case file As already pointed out, the job of a public prosecutor demands intellect, courage, common sense, tact, patience, capacity for hard work, training and an interest in the job. As in everything else in human affairs, a public prosecutor needs planning and preparation. It is not enough to be a genius or to master the law and rules of procedure and practice. A public prosecutor has to prepare his case – just as a good teacher has to prepare his lessons. The evidence a public prosecutor will need at the trial is not in his head but in the police case file. The law and rules of practice and procedure that are simmering in his head can only be applied correctly when he knows the nature of the evidence. The case file is a prosecutor’s first contact with the minds of the witnesses, the accused and the nature of the terrain. It will remain the medium of communication throughout the trial. It is, therefore, essential that you know the contents of your case file thoroughly. When the case file is brought to you, read all the statements of witnesses, sketches and other documents very carefully. In the case of documents, make sure that none is missing, and make sure that their contents tally with or are explained by the contents in the statements of witnesses. Even photographs must be carefully scrutinized. There could be something in them that could make a hole in your case. You cannot afford to be taken by surprise. When you have read the case file carefully, you may find that the case is a complicated one. It may be one that requires an intimate knowledge of the terrain. If that should be the case, then make a point to visit the locus with your investigator. The point is that you must have an intimate knowledge of the facts and circumstances of the entire case. What you observe at the scene may help to elucidate the statements of your witnesses. Check the distances and bearings and, if necessary, carry out a demonstration at the scene with you investigator. This should give you some idea as to the credibility of your potential witnesses. Having checked the scene against the contents of the statements, try to find out anything else at the scene which is relevant but

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which does not appear in the statements of witnesses or in the sketches. Make note of these because you may never know when they could come in handy. Having satisfied yourself that you know all the facts of the case, sit down and check all the relevant points of law. Check the form and content of the charge; analyse and draw up the elements of the offence in it; check up whether any of your witnesses are incompetent to testify or incapable of giving evidence; and find out which statements of your witnesses are likely to be ruled out as inadmissible for one reason or another.. Finally find out the possible defences that would be available for the accused in the face of your evidence. Even the remotest defence should be considered. The rule is: never underestimate an adversary, and never leave anything to chance. Remember that a soldier does not open fire at an enemy unless he has some idea of his own cover. Having identified the possible defences, prepare how you are going to counter them or demolish them.

The investigator and you By the time you are through with these exercises, you will have possibly spotted some gaps in your case – unless your investigator has done an impeccable job – which is not always the case. If there are gaps as a result of the investigator’s lack of diligence on any particular point, call him in and point it out to him politely and suggest how that gap can be covered. If, however, the gap is due to total lack of evidence and no amount of diligent investigation can cover it, then there is little you can do about it. In such a case, a public prosecutor will have to decide whether the gap is a minor one which can be ignored, or whether it is so serious and central to the case that the result is a foregone conclusion. If it is serious and central to the case, the public prosecutor should advise his superior officer accordingly; and he should give him his opinion and, what is more, the reasons for that opinion. The superior officer may have useful suggestions which might have escaped the mind of the public prosecutor. If, on the other hand, it is a borderline case, it would be advisable that you go ahead and prosecute. Do your best with the material you have and hope for the best. Sometimes you will find your investigator to be a difficult person to deal with. He may be one of those people with pre-reconceived ideas and an invincible sense of their own abilities and experience. Let that not deter you. If you have a good point and are tactful enough, you will have your way. In any event, keep an open mind. He may be right and you may be wrong. The

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investigator is your feeder; and do remember that investigators are as busy as you are. So they are likely to be impatient. Tact is the answer. Remember that if you want honey, you must not disturb the bees. It is true that some investigators have scant legal knowledge. But do not tell them that so bluntly.

Exhibits and short notes In cases involving a mass of documents executed over a long period of time, it is advisable that you and your investigator sit down and sort them out. Arrange them in chronological order and number then clearly. See that no document is misplaced or missing. When you have done that, write down on a piece of paper all the points you need to prove. In court keep on ticking them off as the case progresses. Where there are several accused persons and not all documents refer to all of them, keep documents in respect of each accused separately but well arranged. You must take all this trouble because magistrates are human beings like you. They do not take kindly to prosecutors who fumble and thumb blindly through a mass of confused documents. Besides, if you fumble with documents, the witness, who is standing there waiting for your next question, is likely to allow his mind to wander and his line of thought or recollection may be adversely affected. Even the magistrate, who is sitting there with judicious innocence, calmness and patience, may be irritated. You cannot afford that. What I have said about documentary evidence is equally true with real evidence, that is, such things as weapons, clothes, etc. Sort these out well in advance and note which witness will identify or produce which article. This, of course, will depend on the nature of the case. There are cases in which it is necessary to ask the witness to identify a particular article from a heap of other articles in order to enhance his credibility. But you yourself should know the article in question.

Research on technical subjects A public prosecutor is not always on familiar ground. There are cases which involve highly technical matters with which a public prosecutor is not familiar. When faced with such a case, the public prosecutor must make a point of acquainting himself with the subject in question. If, for instance, the case involves a banking system, and you are not familiar with the system, find an

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experienced man in that field or system and let him give you a lecture on the operation of the system; and, if possible, see the system at work. Don’t wait until the witness confuses you with technical terms in court. If you are confused, the magistrate may be even more confused. That would be disastrous. In fact, if I may confide in you, even magistrates take that precaution. If a magistrate is going to try a case which involves some unfamiliar subject, he picks up a good book on the subject and soaks himself in the subject until he has some idea about it. If it is a case of poisoning, he will read a book on toxicity of various substances and their various lethal doses; if it is a case of illegal abortion, he will read a good book on obstetrics; if it is a case of firearms, he will read a good book on ballistics and firearms, and so on. If a magistrate, who normally waits until you feed him with knowledge from you expert witnesses, is prepared to take all that trouble, what more so for a public prosecutor? It is the public prosecutor who is supposed to lead his witness and also supposed to know if the witness has said everything there is to be said by a witness. If he is ignorant of the subject, he will not know what important point has been left unexplained. What is even more important, how will you effectively cross-examine an expert witness of your opponent if you do not half understand what the witness has said?

Chapter 34

THE CHOICE OF WITNESSES Interviewing witnesses Your case file and notes are now ready and you are itching to go for a tussle in court. But you are not yet fully armed. Before you can be reasonably sure that in court your case will turn out to be what your case file and exhibits say it will be, it is your duty to interview your potential witnesses. This is as important as it is elementary. Many public prosecutors have often been embarrassed in the course of trial because they assumed that the statements of witnesses in their police case files will be reproduced by the witnesses in the witness-box. How mistaken one can be! Statements of witnesses are rarely reproduced by witnesses when they give evidence in court. The memory of the average person is not photographic, and the longer a case takes before the trial starts the less likely the witnesses will remember the details of what they said in their statements. Besides, it frequently happens that there are changes in circumstances: some of the witnesses might have been “won over” by the defence and might turn hostile; some might have become so deaf they cannot hear a thing; and yet others might have passed on. You cannot risk putting on the stand a hostile witness, unless you have good reason for doing so; and you cannot afford the embarrassment of calling out the name of a person lying some six feet in the ground. You minimise such risk by interviewing your witnesses before calling them to the witness-box. So, the purpose of interviewing witnesses is to discover how much each witness remembers his story, whether the witness still sticks to his story or has become hostile, whether the witness is alive or dead, etc. The interview should also be used to advise the witnesses what to expect in court, how to comport themselves before the court. Remember that most of the witnesses have never been inside a court-room, let alone been witnesses. Tell them to listen to questions carefully before answering them; to answer questions without being rude; and so on. But on no account must you tell your witnesses what to tell the court. In other words, do not teach your witnesses what to say. There is another and equally important reason for interviewing witnesses: the statement of a witness tells you nothing about the character or personal-

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ity of the witness. Each witness is an individual; each has his strong side and weak side; each has noble virtues, or prejudices or failings. He may be loquacious or taciturn, stupidly timid or sagacious, revengeful against the opposite party or impartial and reasonable. You can only discover all these through the interviewing of the witnesses. Once you have discovered their strengths and weaknesses, you will know how to go about them when they give their evidence: you will know how well each of them can withstand vigorous cross-examination and what impression he/she is likely to make on the court. In fact, from the interview, you will be able to decide whether to call him as a witness or leave him out altogether. I will repeat: a public prosecutor who does not interview his witnesses before hand is courting trouble.

The choice of witnesses It is the ultimate duty of a public prosecutor to bring out all the evidence necessary to prove the allegations against an accused person. On this principle is based this other principle, namely, that it is a public prosecutor’s duty to call witnesses who have an intimate knowledge of the facts of the case at hand. But a public prosecutor has the discretion to call such witnesses as are necessary to prove his case. He need not waste time and money and burden the court record by calling witness after witness to tell the same story. Where a large number of people witnessed an incident or transaction, the public prosecutor is entitled to make a selection so long as such selection is fair and squarely necessary for putting all the facts before the court. One word of warning: where a witness is necessary for the unfolding of the prosecution’s story, and such witness has given a first report and is willing and ready to give evidence or has been listed and summoned and there is no evidence that he has been “won over” by the defence or has turned hostile, then the prosecution will have no justification for leaving him out. If he is left out, the court may draw the inference that the witness would have given evidence favourable to the defence. It may go further and draw an inference against the prosecution’s story, especially when the witnesses called have not made a good showing. These apparently contradictory principles have been rationalised by persuasive Indian and English authorities. In the case of Bhutan Singh v. Emperor (AIR 1933) (Cal. 600), it was held that the prosecution ought to call those witnesses who, they think, will support the prosecution’s case and no others, for it is quite useless to pursue a case and then call a whole series of witnesses who

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are going to speak against it. If the defence is of the opinion that the witnesses left out by the prosecution are witnesses of truth it is the duty of the defence to call them. It has also been held that the non-production of a prosecution witness who has been won over by the defence does not adversely affect the prosecution’s case (See Atma Zahara Singh v. State, 1954 Punj. 126, 128). Perhaps the highest authority on this point is the case of Stephen Seneviratne v. The King, (AIR 1936) PC 290 in which the Privy Council said: It is a wrong idea that the prosecution must call witnesses irrespective of considerations of number and reliability or that it should discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result... Witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. (See also Azizi Abdallah v. Republic, (1991) TLR 71.) From these authorities it is clear that a public prosecutor has an undoubted discretion to decide as to who of the witnesses should be called for the prosecution and who should be left out. But in the exercise of that discretion, he/she should not leave out witnesses who are essential for the unfolding of the prosecution’s case although their evidence may in some way favour the defence. If, however, a public prosecutor is satisfied that there are other better witnesses to cover the point among those intimately conversant with the facts of the case, there is no point in calling each one of them. The next question is: what are the considerations which a public prosecutor must bear in mind in determining who should be called and who should be left out? Naturally he should choose those witnesses whom he believes to be good witnesses in the circumstances of a given case. Now, who is a good witness? A good witness is one who is able to relate in ordinary language what he himself has perceived by any of his five senses. He is a witness who confines himself to the facts, and avoids drawing inferences or giving his opinions or beliefs, unless asked to do so. He will tell the story in the sequence in which the events occurred; he has a good memory and expresses himself clearly and accurately. A good witness listens to questions and gives answers to those questions without running off to other matters outside the scope of the question. Even under fierce cross-examination, a good witness remains calm and answers offensive questions politely and without hesitation. Finally, a good witness is not partisan or prejudiced, and if he is, he will

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try not to show it by his answers or demeanour. If he does not know the answer to a question he will frankly say so. That is the witness a public prosecutor should go for. He will make a good impression on the court. Herein, then, lies the fundamental reason for interviewing your witnesses beforehand. Not every witness, however, can be a perfect witness. So your choice will be dictated by a process of relativity. Here are some hints which are useful guides in the choice of witnesses. They are not, of course, rules of thumb. But they have been applied and proven worthwhile by people of experience.

Rule (1): One good witness is worth more that 10 bad ones This is obvious. Falsehood does not become truth merely because it is repeated by a whole multitude. Similarly, a positive fair witness is worth more than ten hostile ones. It is the quality of the evidence and not the quantity which matters.

Rule (2): A witness who has seen is better than one who has heard Seeing, they say, is believing. Take a simple example. The question is whether it is A who set B’s house on fire, and you have two witnesses, C and D to testify on the question of the identification of the accused. C says that he recognised the accused from his voice but he did not see him. D says that he saw and recognised the accused at the scene shortly before the house went aflame. If you have to choose between C and D, and all things remaining equal, D should be preferred to C.

Rule (3): A witness who deposes to a positive fact is better than one who deposes to a negative fact Again this is obvious. In the foregoing example, if C will depose to the fact that he did not see the accused at his (accused’s) house and that the accused did not respond to the alarm although his house is only a few metres away from the scene, and D will depose that he saw the accused running away from the scene seconds before D saw the house aflame D is to be preferred because D will depose to a positive fact while C will depose to a negative fact.

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Rule (4): A disinterested witness is better than one who is a friend of the complainant This common sense rule is often ignored by public prosecutors. Courts often express surprise at the absence of independent witnesses to an incident, especially if the incident happened in the presence of many people. Let us take an example. At a pombe shop, A assaults B with a panga in the presence of W who is a wife of the complainant, and L who is a brother-in-law of the complainant. Several other people, including C, who is the street leader and S, who is a stranger in the area. At trial of A on a charge of causing grievous harm to B, the prosecution calls B, W and L as prosecution witnesses and omits to call C and S. This would be wrong because, all things being equal, C should be preferred to L and S should be preferred to W. The principle also applies where the witness is a friend of the accused but is willing to testify for the prosecution against his friend. The word of such a witness will carry more weight than the word of someone who is an enemy of the accused.

Rule (5): A person who was at the scene from the beginning to the end is better that one who came there afterwards This is too obvious to require elucidation. A witness who was at the scene from the beginning to the end is to be preferred to one who came there afterwards because the former must have had more opportunity to see everything than the one who came there afterwards. The one who was there from the beginning may save you the trouble of calling two witnesses instead of one. Besides, the witness who came there later can not disprove assertions of the defence as to what preceded the incident. Rules (2) to (5) (inclusive) may be summed up in the following passage of Cicero in the speech for Archias, as quoted by Soonavala in his book Advocacy – Principles and Practice: There is a man present, a most scrupulous and truthful man, Lucius Lucullus, who will tell you not that he thinks it, but that he knows it; not that he has heard of it, but that he saw it; not even that he was present when it was done, but that he did it himself.

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Rule (6): The taciturn witness is better than the loquacious one A witness who is reserved and not given to too much talking is to be preferred to one who likes to talk. This is because the taciturn witness will invariably simply answer the question he/she has been asked and say nothing more, while the loquacious one will often say more than he is asked. He always wants to be ahead of his examiner. Such a witness, therefore, is often an easy prey for an intelligent cross-examiner because such a witness will rarely stop to think about the purpose of the question. He will shoot answers even before he has heard the whole question. If you have no choice but to call such a witness, you must drill him carefully during the interview. Tell him that the court is not interested in how much he knows: it is interested only in specific answers to specific questions and no more.

Chapter 35

HOW TO CONDUCT EXAMINATION-IN-CHIEF The purpose of examination-in-chief As we have seen earlier, the purpose of examination-in-chief is to elicit from the witness all the facts which he knows about the case, or such of those facts as are necessary to prove the case of the party calling him. So important is examination-in-chief that no public prosecutor can afford to take it for granted. In order to make full use of examination-in-chief, it is imperative that the public prosecutor must know all the facts of the whole case, and he must know what a particular witness is supposed to say. Second, the public prosecutor must know the personality of the witness and the nature of the subject-matter about which the witness is going to testify. The witness’s degree of intelligence, his noble virtues and failings and the nature of the issue in question will assist the prosecutor how examination-in-chief should be started, continued and concluded.

Every witness has some nervousness When the witness has been sworn/affirmed and you stand up to conduct your examination-in-chief, remember that almost every witness is to some point nervous, apprehensive or confused as he stands in the witness box. Your first duty, therefore, is to settle his nerves by asking him preliminary questions which he is likely to answer with relative ease. That will give him confidence and settle his nerves. This is particularly important when, to your knowledge, the witness has never been in a court of law before, or when the witness looks obviously nervous, confused or embarrassed. Then go on with him step by step. If you go straight to important matters before his nerves have settled, he will most likely give answers to questions which he has not been asked. Remember that a witness who is nervous or embarrassed is all too anxious to go through “the ordeal” just as soon as he can and get out of the place. Such a witness will not give second thought to questions he is asked; and so he is a prey to a good cross-examiner. So do

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make sure that the witness is composed before you go to the main part of his testimony.

Nature and manner of asking questions in examination-in-chief Since the purpose of examination-in-chief is to elicit from the witness everything he knows, or everything the examiner needs, it is important that the questions the witness is being asked are clearly understood by the witness. The questions, therefore, must be such as the witness will know what you want him to say without leading him. If you are going to achieve that, you must ask short and precise questions, preferably in the order in which the events occurred. Let him tell his story in his own language, and do not interrupt unless he attempts to say things not covered by the question. For this reason, ask one question at a time. If you ask him composite questions, he is likely to be confused and so give you confusing answers. You should bear in mind that the answers of a witness in examination-in-chief are more binding on him than his answers in cross-examination. You cannot afford contradictions in the evidence of a witness in examination-in-chief. There is something else: a public prosecutor must as far as possible avoid asking questions which are objectionable in form. If you ask such questions and the court rules them out as improper and so inadmissible, it may shake your own confidence. So think of the form of any question before asking it. What all this boils down to is that you must never ask a question without purpose. Think of the question and ask it when your are satisfied that it advances your case and is not objectionable in form. There is also your own temper to watch. Every now and then you are bound to come across a witness who is not very intelligent or even stupid. Such witnesses may give answers which you did not expect or may contradict themselves as a result of their stupidity or misunderstanding. In such a case do not tell him: You see! You are spoiling your own case! Why don’t you answer questions I ask you? That is inexcusable in examination-in-chief. You are not doing the witness any good. If he is timid, frightened or embarrassed, he will be more so after

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that and he will be a bad witness from there on because he will be anxious to leave just as soon as he can. A witness in a hurry is poison to the party calling him. He can be excused because he does not know. But you cannot be excused because you know or ought to know.

When to stop examination-in-chief Never stop your examination-in-chief and leave the witness for cross-examination unless you are quite satisfied that everything there is to be said by the witness in your favour has been said. If you leave out any important matter, it may be brought out in cross-examination with disastrous results, or your opponent may carefully also skip it so that you will have no way of bringing in it later. The only way to leave a witness in a strong position for cross-examination is to extract from him all the admissible facts he knows in the case.

Control your witnesses Witnesses differ. The public prosecutor, therefore, will have to change his tactics according to the type of witness. Take, for example, a timid witness who is a complainant in a rape case. Few witnesses want to tell the world that they were raped, least of all the timid. Approach such witnesses with great care. Be gentle, friendly, and ask questions matter-of-factly. Pretend to take no notice of their embarrassment; and don’t allude to the fact that they are embarrassed. There is also a type of witness who is too strong a partisan or vehemently revengeful. Such a witness may give the court the impression that he is embellishing his story when in fact he may be telling nothing but the truth. Do not let such a witness loose. Try as much as possible to confine him to questions he is asked, and give him no time for comments or other outbursts. Put your questions in such a way and in such a controlled tone of voice as to make him feel that he is testifying to impersonal matters in which he is no more than one of the witnesses. With such a witness, hint to him, in the course of the interview, that it is his evidence and not emotional outbursts which will convince the court. To sum up, I suggest the following rules for examination-in-chief: 1. Be familiar with all the facts of the case in respect of each witness and generally. 2. Know the personality of each of your witnesses.

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3. Start with simple innocent questions to ease the nerves of the witness and build his self-confidence. 4. As far as possible, let the witness tell his own story in the order in which the incident occurred but keep him to the facts of the case. 5. Use short simple questions and avoid composite questions. 6. Weigh each question before asking it, and ask no question which serves no purpose. 7. Avoid questions which are objectionable in form. 8. Be friendly; do not abuse your own witness. 9. Encourage the timid and keep in check the strongly partisan. 10. Assume a grave and ceremonious manner with the overconfident, flippant or casual. 11. Make sure that you have elicited everything you want from the witness before leaving him for cross-examination.

Chapter 36

HOW TO CONDUCT CROSS-EXAMINATION The object of cross-examination In the words of Poison in his book Evidence, the object of crossexamination is defined as: to weaken, qualify, or destroy the case of the opponent; and to establish the party’s own case by means of the opponent’s witnesses (at page 643, 11th Edition). To achieve the first objective, cross-examination is used for impeaching the accuracy, credibility and the general value of the evidence given by the witness in examination-in-chief. To that end, cross-examination must expose discrepancies in the witness’s evidence-in-chief, discredit him by showing that his memory is not reliable, or that he is biased or an outright liar, or that the circumstances were such as to make impossible accurate observation of the things testified to, etc. Cross-examination on those lines is aimed at weakening or neutralising the effect of the evidence of the witness given in examination-in-chief, and possibly destroy it altogether. The second objective is to build the case of the cross-examiner. This is done by soliciting from the witness matters favourable to the case of the cross-examiner which might have been omitted in the examination-in-chief, or which were carefully glanced over. In so doing the cross-examiner builds up his own case from the very witness who is supposed to defeat it. It is for these reasons that cross-examination can be a very powerful weapon for an opponent. But cross-examination must be handled with care. If handled by a good cross-examiner, it will advance his case, but if not carefully handled, crossexamination can damage the cross-examiner’s own case, for it could have the opposite effect, that is, confirming or strengthening the evidence given in examination-in-chief. To approach cross-examination haphazardly, therefore, is to court trouble. The first thing to remember is that it is safe to assume that a witness called by the other side is generally unfavourable to you case. So, since your aim is to obtain from the witness admissions favourable to your case, if you can, or to discredit him and his story in some

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way, failure to achieve both or either of these objectives means that your cross-examination was useless, or even harmful to your case.

The hints: Know the facts To be able to conduct cross-examination effectively, you must know as much of the facts as possible. You may not know the whole of your opponent’s case, but you must certainly know your own case thoroughly; you must listen very carefully to everything that your opponent’s witness says in examination-in-chief; and you must jot down every important point he has said. That will give a clue to the opponent’s case. If you do not know your own case or what evidence will sustain it, or if you do not listen attentively to what your opponent’s witness says in examination-in-chief, you are unlikely to know the hinge of your opponent’s case. If you fall into those errors, you are likely to ask questions at random in your cross-examination. That would be deadly because you may bring in evidence which might otherwise have been inadmissible in examination-in-chief, or you may unearth evidence which upholds instead of destroying an opponent’s case.

Know the witness When a witness is called by your opponent, he is likely to be a stranger to you. So you must watch him carefully as he gives his evidence-in-chief so that you know the type he is. So much may depend upon it. Watch his eyes and pay attention to his voice too. The questions you are going to ask or avoid, the approach you will use, or even your decision whether to cross-examine him or not may depend on your assessment as much on the content of his evidence as on the personality of the witness. As Sarkar puts it: This faculty of cross-examining witnesses successfully, is one which requires profound knowledge of human nature, thorough acquaintance with the facts of the case, considerable tact, patience and study…From the situation and circumstances, the cross-examiner has to infer whether anything favourable can be extracted from the witness (ibid., at page 1268).

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Where to start your cross-examination There is no definite rule as to where to start cross-examination in relation to the story told in examination-in-chief. Some suggest that you start from the end and take the witness through the story to the beginning. Others suggest that you start from the beginning to the end of the story. Still others prefer to start in the middle and then shunt the witness backwards and forwards. Each of these methods has its own pros and cons. The danger of starting at the end is that it requires a lot more care in organising mode of questions; but it has the advantage of taking the witness away from the form in which the events are arranged in his mind. So too when you start in the middle. Starting at the beginning and then going through the story to the end is simple and does not task the mind of the cross-examiner much. But its weakness is that it enables the witness to recollect the events easily because you are taking him through the road he travelled during examination-in-chief. With this method it is difficult to catch a witness on the wrong foot. For these reasons, I will venture to state one rule: having mastered the facts and known the type of witness you are going to deal with, adopt a method which is the best in the circumstances.

Be cautious and gentle in approach The witness called by the other party knows that you are for the opposite side. You must, therefore, approach him as cautiously and as courteously as possible. This will likely put him in a friendly mood and it might lower his guard. If you pounce on him, he will immediately be on his guard and prepare to hit back: he will be very alert and will try to see a trap in every question you ask him. As Sarkar points out at pages 1257–1258 (ibid.): If from the attitude and expression of the cross-examiner, the witness at the commencement suspects that his veracity is doubted, he will be at once put on his guard and will prepare himself fully for sticking to his story in examination-in-chief and embellishing it by subsequent answers. Here is more counsel on the same point: “The pleasant style of cross-examination will usually produce far more beneficial results. By appearing friendly to an opposing witness you at once disarm him of the hostility and prejudice with which he has been regarding you during his direct examination. He has probably been expecting an assault on his character, and is pre-

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pared to defend himself, but under the influence of good-humoured questions he becomes softened, and is more easily led to tell the truth. The old adage that “molasses catches more flies than vinegar” applies with peculiar force to cross-examination of a witness” (see Prem: Cross-examination, at pages 99–100). This rule, however, is not absolute. There are certain types of witnesses to whom the fierce and bulldozing style is better than the pleasant and persuasive style. When to use the bulldozing style and when to use the friendly or Socratic style will depend on the nature of the witness and the evidence he has given in examination-in-chief. One of David Paul Brown’s Golden Rules” reconciles the two styles thus: In cross-examination, be mild with the mild, – shrewd with the crafty – confiding with the honest – merciful to the young, the frail, or the fearful – rough to the ruffian, and a thunderbolt to the liar. “It would, therefore, be safe to say that whatever spanner you use must fit the nut”.

Do not linger over a favourable answer One secret of cross-examination is to hide from the witness the real intention of each question. Questions in cross-examination should be a series of snares carefully led so that the witness should be caught in them before he sees them. If he sees the snares from a distance, he will naturally avoid them. So once you have got a favourable answer from the witness, do not linger on it. Leave it and divert his mind to some other matters far removed from the answer he has given. If you linger over a favourable answer and ask more questions on it, the chances are that the witness will see the trap in which he has fallen and so will try to wriggle out by giving an explanation which might destroy or neutralise the effect of the earlier answer. Here is an example of bad cross-examination. One day I was trying a case in which the accused was charged with the offence of assault causing actual bodily harm. The first witness had said that the complainant was lying on the ground when he was assaulted by the accused. The defence was trying to establish that the complainant was in fact standing and that there was no assault of any kind. Cross-examination of the second witness went as follows:

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Q: You did not see anyone lying down? A: No, Sir, I did not. Q: Did you see any person assault any other person? A: No, Sir. I only heard abuses. Q: So if any one says that someone was lying down, would such person be telling the truth? A: May be; after all I was not the first person to arrive at the scene. Cross-examination on this point ought to have stopped after the answer: “No. I only heard abuses.” The last question was unnecessary, and the answer to it completely neutralised the earlier answer: the witness explained it. This is the price you pay for lingering over a favourable answer. For the same reason, do not ask an opponent’s witness questions which will require him to explain anything unless it is unavoidable. An adverse witness who is asked to explain anything is likely to embellish the story, and if he is the only witness on the point, you are in the mud. In his book Hints On Advocacy, Harris has lamented: I often wonder what the fascination is that leads so many counsel to ask a hostile witness: “How do you know? “Why do you say that?”. “How? “Why?” “Wherefore?” “What is the reason?” “What is your opinion?” are a nest of snakes for the innocent beginner to lay hold of.”

Contradictions in the testimony of witnesses To extract contradictions from the evidence of an opponent’s witness is one way of weakening his evidence. But once you have elicited a material contradiction from, say, two witnesses, it is advisable to let the matter rest there. Do not keep on repeating the question to other witnesses for they might explain the contradiction satisfactorily; and so you will have allowed your fish out of the net. However, you must not omit to cross-examine witness on a material point, especially if he has said something damaging to your case. If you omit to do so, it may be taken as an admission of the truth of that part of the witness’s testimony.

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Avoid asking questions objectionable in form This rule applies as much to examination-in-chief as to cross-examination.

Let not your face betray you Your own demeanour is as important as that of the witness you are crossexamining. If you have scored a point in the course of your cross-examination, do not exhibit it with a sigh of relief or an exuberant smile. For the same reason, if a witness gives you a damaging answer, do not look flustered or embarrassed. Remain calm and keep your face inscrutable. Pretend you expected the answer and that it was of no consequence. One damaging answer may mean temporary defeat, but do not give in by showing your disappointment. That only serves to give the witness more confidence and may be encouraged to wound you the more. There may be instances when the witness may be unduly difficult and you are tempted to call him some ugly names. Do not succumb to the temptation. Hold your temper. It does not pay to be angry with a witness. Anger, they say, is the precursor of assured defeat. For the same reason, avoid being drawn into argument with a witness.

When a witness does not answer or is evasive If a witness does not answer or refuses to answer a question, it is generally safe not to press for an answer to the question. His evasiveness or refusal to answer it speak far more in your favour than pressing for an answer which might be damaging to your case. Do not, however, confuse misunderstanding a question with evasiveness. He may look wide-eyed and say nothing because he has misunderstood or even not heard the question properly.

Do not discredit a favourable witness The rule that a witness who has been called by the other side is generally against your case is, of course, not absolute. There are cases where a witness called by the other side gives evidence which is in favour of the crossexaminer. If you are faced with such a witness, it is safe not to discredit him. Let us take one example. On a charge of assault causing actual bodily harm, the accused calls a witness to affirm the accused’s defence that it was the complainant who assaulted the accused. The witness testifies that

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he went to the scene after the accused had already been arrested by police. Cross-examination by the public prosecutor proceeds like this: Q: Are you not related to the accused. A: No Sir. Q: Have you not discussed this case and arranged with the accused that you should help him in this case? A: No Sir. Q: I put it to you that you are a liar! That manner of cross-examination is inexcusable. Why try to discredit a witness who has in no way injured your case. Such a witness should not be cross-examined in the first place.

Be careful with an honest witness When faced with an obviously honest witness, it is advisable not to cross-examine him at length. However, the witness must be cross-examined on material points. There is, however, one warning: do not be taken in by an apparently honest witness. Sometimes a witness who has given an apparently unassailable testimony as to what happened may turn out to be studiedly tutored. Children are in this class of witnesses. One day I was trying a case of rape. The complainant gave evidence and her young brother, aged eleven, also gave evidence. The evidence of the young man in examination-in-chief tallied almost to the letter with the evidence of his sister. Cross-examination of the boy proceeded, in part, as follows: Q: How far were you when you first saw him? A: Oh! About from here to there (indicating a distance of about 100 metres). Q: Did you recognize him at that distance? A: Oh! No! He was still far. Q: Did you go nearer? A: No, I did not. I was afraid. He had a panga in his right hand. That is why I ran away. Q: Then you heard your sister crying? A: Yes, but I did not go back. I went straight home. At that stage I intervened and asked him:

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But you have just said that you saw him lying on top of your sister. Are you sure? The boy surprised us when he said: Ah! That is what my sister told me the man did. All his beautiful story crumbled. He had been tutored.

Interruption by the court The court should rarely interrupt in cross-examination or at any stage. The court, however, has the right to intervene when it feels so. Do not feel offended by such interruption. From it you may get a hint as to the mind of the court. In any case, the court has a duty to see that justice is done, and it can only do that by making sure that all the available evidence is on the record. Sarkar puts it thus: The position of a judge is not that of a moderator between two contestants in a game with no inclination to interfere till the violation of its rules. He has a much higher duty to perform. He has to see not only that the proceedings are conducted strictly according to law, but to administer justice and find out the truth. He must therefore play an active part and it is not only his right but it is his duty to ask the witness any question in any manner, the answer to which in his opinion would aid in the discovery of truth. In order to attain this end and discharge his grave duties, he may interpose to propound any question to the witness in any form, leading or otherwise about any fact relevant or irrelevant (Ibid., at page 1363.) To sum up, I will quote what Donovan says in his book Tact in Court, at pages 81–82: There are no better rules of cross-examination than five: 1. Know what you need and stop when you get it. 2. Risk no case on the hazard of an answer that may destroy it. 3. Hold you temper while you lead the witness, if convenient to lose his. 4. Ask as if wanting one answer when you desire the opposite.

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5. Treat a witness like a runaway colt; and see that he does not get too much start of his master; and if he does, let go of the reins at the first safe turn in the testimony (6th Edition).

Chapter 37

HOW TO CONDUCT RE-EXAMINATION The purpose of re-examination The purpose of examination-in-chief, as we have seen is to bring out all the relevant facts which the witness knows about the case; the aim of cross-examination is to demolish the facts deposed to in examination-in-chief, or to weaken the probative effect of such evidence, or to show that the existence of those facts is highly unlikely, or to elicit from the witness facts which are favourable to the cross-examiner. So, if the cross-examination has been done effectively by the defence, many holes will have been made into the evidence given in examination-in-chief. The aim of re-examination, therefore, is to cover up those holes, that is, to repair the damage caused by such cross-examination. Re-examination is a means of allowing the witness to explain anything which he said in cross-examination through inadvertence, excitement or misunderstanding and which would damage the case if not explained or suitably qualified. Vague statements which would tend to cast some suspicion on the credibility of the witness should be explained or clarified as much as possible.

Hints on re-examination The following are some hints on re-examination.

Know your facts and listen carefully The thing to remember is that you can re-examine your witness only on matters raised in the cross-examination and not upon new matters which ought to have been brought out in the examination-in-chief. In order to make full use of re-examination, therefore, you must have a thorough knowledge of the facts of the case and you must listen to the questions and answers in cross-examination. No good cross-examiner will ask a question without a purpose. Every question leads to something or should lead to something. It is your duty to find out what the cross-examiner is try-

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ing to extract from your witness. For this reason, jot down questions you will ask in re-examination before you forget them.

How much room do you have? The next thing to consider is: how much room do you have for your reexamination? If the cross-examination has been done in such a way that it has opened up a lot of room for re-examination, thank your stars because, as experienced lawyers have said often, it is often so advantageous that a case may be won by a judicious exercise of re-examination. You can cover up all the holes made by the cross-examination. and bring his testimony back to the rigidity it had after examination-in-chief. The witness could even improve upon it. Expert examiners do it in such a way that they leave little room for re-examination. Over-cross-examination opens up a lot of field for effective reexamination.

When to re-examine and when not to As with cross-examination, do not re-examine a witness for the sake of doing so. It is only when a witness has given an answer in cross-examination which is cloudy or which requires some clarification and which answer appears to damage the evidence of the witness in examination-in-chief which, if left unexplained, would neutralise the evidence that re-examination is necessary. It must be remembered, however, that like cross-examination, re-examination could boomerang. You must not re-examine a witness in such a way as to leave the evidence more confusing. Before you re-examine a witness, therefore, you must be fairly certain that it is possible for the witness to explain any damaging answers, vague phrases or seemingly contradictory answers made in cross-examination. This you will discover as cross-examination progresses. Very often you will note that the witness wants to explain something or qualify his statement, but is prevented by the cross-examiner. Make note of it before it escapes your memory. But if you try to elicit from the witness an explanation where there is no room for one, there is danger that you could damage his testimony even more.

Chapter 38

FINAL SUBMISSIONS At the close of the case for the defence, both the public prosecutor and the defence are allowed to make final submissions as provided by sections 201 and 233 of the Criminal Procedure Act.

The purpose of final submissions The purpose of final submissions is that both the public prosecutor and the defence can explain to the court the main facts, which each has established, the strength of those facts and the conclusions that ought to be drawn from those facts. The public prosecutor, therefore, will endeavour to show in his speech that the facts brought out in favour of his case are strong enough to prove the offence charged beyond reasonable doubt; that his witnesses should be believed to be witnesses of truth; that any discrepancies in their evidence were on trivial matters which did not shake the substance of the evidence as a whole; and that the defence has not raised any reasonable doubt against the prosecution’s case. The defence, on the other hand, will endeavour to persuade the court that the prosecution’s story has been concocted; or that there were material contradictions in the whole testimony; or that the defence case is believable or that at the very least it has clearly raised reasonable doubt and so the accused is entitled to an acquittal.

What you need for final submissions Final submissions are, therefore, not mechanical. A final submission must be done intelligently. To be able to use it to advantage, you need to master the facts, organise the mass of materials brought out in the course of the trial, prepare your speech and attain the art of persuasion. For facts, you need to work; and preparation of your speech, you need to work. But the art of persuasion can only be attained with experience.

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Master the facts Final submissions must be based on the facts brought out in the course of the trial. It is therefore imperative that you should be conversant with all those facts. Courts do not take kindly to mistakes as to what has been said in court by the witnesses. You must know what each witness has said or omitted to have said. You must refer to facts and their interrelationship and how they destroy the defence case or weaken it.

Organize your materials Having mastered the facts, the next thing is to sort the facts out so that you can refer to them easily without fumbling. In a lengthy trial, or where witnesses did not testify in the order in which the events occurred, you will find that there is a mass of materials seemingly irreconcilable. Draw them up in headed notes so that the main facts come out clearly. See which ones are reconcilable and which ones are not. In other words, write all of them down – including those against your case. Thereafter, find out the details which agree with the main facts on either side. Having done that, you are now in a position to prepare your speech.

Preparation of final submissions A final submission should have three parts: an introduction, the body, and the conclusion. An introduction can consist of a brief reference to the charge and the basis of the prosecution’s case, that is, what the prosecution had set out to prove. The speech should then set out the main issues; and the main facts brought out by the evidence of both sides. It then goes on to analyse the evidence in as much detail as may be necessary, emphasizing all important points in favour of the prosecution or the defence, as the case may be. In other words, points in favour of, say, the prosecution, will be highlighted and weaknesses, or contradictions explained away on the ground, say, that the events were quickly moving. For the prosecution, having reviewed the evidence for the prosecution, the public prosecutor should turn to the evidence of the defence. Here the duty of the public prosecutor is to discredit the evidence of the defence. By reference to its inherent weaknesses or by contrasting it with the prosecution’s case, the public prosecutor can describe the defence case in such a way as to

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make it appear as an afterthought, worthless, ridiculous or highly improbable. To do this, you must attack what appear to be strong points in the defence and dramatize strong points in favour of the prosecution. Thereafter, the speech should refer to such legal authorities as may be relevant to the case and in favour of the prosecution. But legal authorities must be relevant and not double-edged. Thereafter comes the conclusion. This consists of an appeal to the court to accept the version of your case and reject that of the other side. The conclusion may be worded as follows: Your Honour, the case of the prosecution is based on the testimony of independent, honest men and women; men and women who have no reason to lie, no reason to frame the accused. Their testimony is so cogent that it proves the story of the defence inherently improbable. I submit that the prosecution has proved its case beyond a shadow of doubt.

Delivering your speech If you have prepared your speech properly, there should be little problem in delivering it in court. The main things to remember are your composure, fluency and brevity. In delivering your speech, you must not be in undue haste. The court will be recording all the important points. The court is looking for your assistance in the summary of the evidence and your analysis of it, your strong points as well as weaknesses on both sides, the law applicable and your appeal to the court to find in your favour. If you rush through your speech unduly, the court may miss some of your points. This does not mean that you should deliver it as if it were a dictation to pupils. Be slow but natural and your voice must have rhythm. On the question of fluency and simplicity of language, the nature of the case may be an important factor. But fluency and simplicity of language must be your aim. Fluency in speech gives the court a positive impression that you know your case, and the use of simple language has the same effect. Brevity is another requirement. Do not repeat yourself unless it is for the sake of emphasis; and even then, only do so occasionally. People who keep on repeating themselves are bores and it gives the court the impression that you do not know what to say next. However, do not sacrifice clarity for brevity. Brevity that covers all points is to be commended, but brevity which is achieved at the expense of omit-

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ting important matters is to be avoided. Clarity and brevity must go together. Finally, watch your voice and your eyes. When delivering your speech, do not talk like someone who is talking to himself. Talk clearly and be sincere. The more grave and ceremonial a manner you can assume the better; and look at the magistrate as you speak. Do not keep your eyes glued to your notes. If in the course of your speech the court should interrupt, stop and listen. There may be a point the court wants to draw your attention to which you might have omitted and which could turn out to be important for you. But whatever you do, do not exaggerate or misinterpret the facts. Be accurate and urge your points forcefully. One more point: you must end your speech with a bang; that is, you must end on a high note. Your concluding remarks must be said slowly, deliberately. Some lawyers believe in memorising the last two sentences. And it works.

Appendices

Appendix I

Bibliography D. Brown, Criminal Procedure in Uganda and Kenya, Sweet & Maxwell, 1969. H. F. Morris, Evidence in East Africa, Sweet & Maxwell, 1969. Wrottesley, Examination of Witnesses, Sweet & Maxwell, 1931. Durand, Evidence for Magistrates. Sarkar, The Law of Evidence 11th Edition, Wadwa and Company, Nagpur, 1965 Woodroffe and Ameer Ali, Law of Evidence, 9th Edition, Thacker Print & Co. 1931 Archbold, Pleadings, 38th Edtion, Sweet & Maxwell, 1973. Field, Law of Evidence in British India, 10th Edition, 1970, Eastern Printers. F. L. Wellman, Art of Cross-examination, Sweet & Maxwell, 1894. Kenny’s, Outlines of Criminal Law, 18th Edition, 1962, Cambridge University Press Cross and Jones, An Introduction to Criminal Law, Sweet & Maxwell, 8th Edition.

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Appendix II

Excerpts 1. Many unjust acquittals are a result of bad presentation of evidence by public prosecutors. It is all too easy for a public prosecutor to confuse an otherwise clear case. He can, through lack of zeal or preparation, ignorance, carelessness or some less excusable reasons, confuse himself, his witnesses and the court. 2. The responsibility for the correctness of a charge lies at the door-step of the public prosecutor. 3. The question of whether or not to grant bail is one that involves the exercise of judicial discretion. It must not, therefore, be approached mechanically. The test in a bail application is whether the granting or refusal of an application for bail would be detrimental to the interests of justice. 4. “The rules of evidence and procedure are designed to give the accused a fair hearing.” –Douglas Brown in Criminal Procedure in Uganda and Kenya (1965). 5. “There is a difference in the degree of criminality between a person who of his own volition commits an offence and one who in the face of great temptation succumbs to it.” –Ibid. 6. “For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts solicited.” – Birch, J. in Republic v. Chunder (1874) 21 WR Cr. 13 (India). 7. “It has been said that circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics.” – Sir Udo Udoma, C.J. in Meralli v. Uganda, Uganda High Court Criminal Appeal No. 220 of 1963 (Unreported). 8. “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The Law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” – Denning, J. (as he then was) in Miller v. Minister of Pensions, (1947) 2 All ER 372. 9. “Shortcuts are often inexpedient and every effort should be made to prove the case alleged against an accused without reliance on a confes-

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Appendix II

sion which can as easily be retracted as made. The police should not be satisfied that, a confession having been obtained, a case is complete.” – Barth, J. in Republic v. Kamau, 10 KLR 8. “Whenever witnesses testify about quickly moving events there are likely to be discrepancies. Indeed, if there are none that would be, of itself, cause for suspicion that the story had been rehearsed.” – Georges, C.J. in Republic v. Makuzi Zaidi, (1969) HCD n. 249. “Remember that though you cannot lean on anyone, someone else is leaning on you all the time. A wrong step and you will bring defeat not only to yourself but to countless other persons.” – Soonavala in Advocacy – Principles and Practice. “To win each main fact should be certain. Who would risk a doubtful gun in a duel? Who would load it with poor power? Who would fire it without some practice?” – Ibid “During trials state facts with clearness, directness and interest, never with dullness. Do not look to the ceiling when addressing a jury or out of the window when addressing the Judge.” – Ibid. “Brevity is a fine art in court. It is a duel in practice. The interest of a tersely told story is continuous. But remember that law is a serious business, an exact science, with very little room for levity.” – Ibid. “Pay little attention to the good side of the case – that side will take care of itself; but be sure you look well to the bad side.” – Ibid. “The study of law to a beginner is like entering a dark tunnel – the start is always the darkest. Gradually light breaks in, and soon it seems like daylight. It is large. It is dark.” – Ibid. “Ever be strong with your evidence. Twenty counsel can’t win without it. Be anxious to win, but never be anxious to show it. Be neither sharp, tricky, nor confident – the more you are of either, the surer is your failure. Good cases are won without tricks – evidence wins better.” Ibid. Learn to think on your feet. Never stop your examination-in-chief until you are satisfied that the witness has said everything you wanted him to say. “Over-cross-examination is where many fail in practice.” – Donovan in Tact in Court. “Show no uneasiness in temporary defeat.” – Ibid. “There are no better rules for cross-examination than five: (1) Know what you need, and stop when you get it. (2) Risk no case on the hazard of an answer that may destroy it. (3) Hold your temper as you lead the witness, if convenient, to lose his. (4) Ask as if wanting one answer when you desire the opposite, if the witness is against you; reverse tactics

Excerpts

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if he is more tractable. (5) Treat a witness like a runaway colt; and see that he does not get too much start of his master; and if he does, let go of the reins at the first safe turn in the testimony, but if you need to break his running, call the turn quickly.” – Ibid. “A mere aimless, haphazard cross-examination is fault;, is a crime.” – Wrottesley in Examination of Witnesses. “Cross-examination is one of the most powerful weapons of exposing falsehood and eliciting the truth, but cross-examination in criminal cases is an extremely dangerous thing. Unskilful or unnecessary cross-examination digs the grave of many cases, which but for the mistake would have leaned on the side of victory.” – Soonavala in Advocay – Principle and Practice. “If you do not know what to ask or how to ask, you can at least serve your client by keeping silent and dismissing the witness after putting a few commonplace questions by way of a feeler. . . A single injudicious question will push your case to a fathom beyond the possibility of a rescue.” – Ibid. “It is better to ask nothing in cross-examination than to founder.” – Sergeant Ballantyne in The Experiences of a Barrister “Whenever you have fairly caught a witness, do not sacrifice the advantage by exhibiting him too ostentatiously. You need not give him a second run for the purpose of going over the same ground.” – Wellman in Art of Cross-examination. “Do not cross-examine in such a way as to give room for effective and damaging re-examination; a large and damaging re- examination may gain admittance.” – Harris in Hints on Advocacy. “Remember that cross-examination is governed by, like almost all important things in this world, common sense.” – Soonavala in Advocacy – Principles and Pracice. “Keep your face inscrutable. Let not joy at getting a favourable answer or your annoyance at a damaging reply be gleaned from your face. Your emotions must be in firm check when you are conducting a difficult cross-examination. A cross-examiner who loses his temper now and then is sowing the seeds of disaster for his case.” – Sarkar in “The Law of Evidence. “Before beginning his re-examination, counsel should determine, in his own mind, what facts brought out in examination-in-chief has been displaced, or obscured, and what new matter has been introduced in answer to the questions of his opponent. Having in this manner taken a survey of the situation, he should, as nearly as possible, begin to repair

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39.

Appendix II

the damage in the order in which it was done.” – Wrottesley in Examination of Witnesses “If you look fierce and look sternly, it is just what had been expected, and you are met by corresponding acts of self-defence. But if, instead of this you wear a pleasant smile, speak in a friendly tone, use the language of a friendly questioner, appear to give him credit for a desire to tell truth, you surprise him, you disarm him; it is not what he had anticipated, and he answers frankly your questioning.” – Ibid. “Confucius says, ‘The archer who misses the centre of the target turns to himself to find the cause of his failure.’ He was a wise teacher. A lawsuit is such a costly luxury to either party that failure becomes an important matter. The reason for your failure was in your faulty evidence, untrained witness, missing document, unprepared argument. The reason for your failure is in you, not in luck.” – Soonavala in Advocacy – Princiles and Practice. “Be mild with the mild – shrewd with the crafty – confiding with the honest – merciful to the young, the frail, or the fearful – rough to the ruffian, and a thunderbolt to the liar.” – David Paul Brown’s Golden Rules. “The art of cross-examination consists in ascertaining what can be got from the witness and in interrogating in a manner which would make it impossible for him to circumvent or conceal the truth. This faculty of cross-examining witnesses successfully is one which requires profound knowledge of human nature, thorough acquaintance with the facts of the case, considerable tact, patience and study.” – Sarkar in The Law of Evidence. “The art of examination-in-chief is to put questions to the witness in such a way that you reveal to the witness what you want to know from him. The art of cross-examination is to put questions to the witness in such a way that you conceal from him the real objectives behind your questions.” – Wrottesley in Examination of Witnesses. “The fine art of cross-examination is in making your case out of an opponent’s witness. – Donovan in Tact in Court. “And this is the luck of law. The luck is work; the luck in tact; the luck is in ingenuity; the luck is bringing law to a Court with wisdom, discretion, power and logic, tact and genius, well combined; and bringing facts to a judge and jury in the clearest, plainest, simplest possible light, to convince and decide for your client’s case. It will not do to guess; he must work – I repeat it, HE MUST WORK TO WIN.” – Ibid. “No lawyer can be successful in the highest sense of the term unless he is a master of the difficult art of examining witnesses. It requires a

Excerpts

272

greater combination of qualities than almost any other branch of advocacy, the most important of which are patience, coolness, courage, and tact. Much depends upon the good judgment and sagacity of the examiner.” – Wrottesley in Examination of Witnesses. 40. “Of all the unfortunate people in this world, none are more entitled to sympathy and commiseration than those whom circumstances oblige to appear upon the witness stand in Court. You are called to the stand and place your hand upon a copy of the Scriptures in sheepskin binding with a cross on the one side and on the other to accommodate either variety of the Christian faith. You are then arraigned before two legal gentlemen, one of whom smiles at you blandly because you are of his side, the other eyeing you savagely for the opposite reason. The gentleman who smiles proceeds to pump you of all you know, and having squeezed all he wants out of you hands you over to the other, who proceeds to show you that you are entirely mistaken in all your suppositions, that you never saw the defendant in your life; in short, that you have committed direct perjury. He wants to know if you have ever been in a state prison, and takes your denial with the air of a man who thinks you ought to have been there, asking all the questions over again in different ways; and tells you with an awe-inspiring severity to be very careful of what you say. He wants to know whether you meant something else. Having bullied and scared you out of your wits, and convicted you in the eye of jury of prevarication, he lets you go. By and by everybody you have fallen out with is put on the stand to swear that you are the biggest scoundrel they ever knew, and not to be believed under oath. Then the opposing counsel in summing up paints your moral photograph to the jury as a character fit to be handed down to time as the type of infamy, as a man who has conspired against innocence and virtue, and stood convicted of the attempt. The Judge in his charge tells the jury if they believe your testimony, etc., indicating that there is even a judicial doubt of your veracity; and you go home to your wife and family, neighbours and acquaintances a suspected man, all because of your accidental presence on an unfortunate occasion.” – Wellman in The Art of Cross-examination.

Appendix III

Case Index Case Abdallah Katwe v. Republic, (1964) EA 477 Abdallah Bin Wendo v. Republic, 20 EACA 166 Abdallah Nassor v. Republic, 1 TLR (R) 289 Abdul Nassor v. Republic, 1 TLR (R) 289 Akbalali Walimohamed Damji v. Republic 2 TLR (R) 137 Alfani Mlaponi and Another v. Republic, (1990) TLR 104 Ali Ahmed Amgara v. Republic, (1959) EA 654 Ali Bin Hassan v. Republic, (1960) EA 171 Ali Mohamed Hassan Mpanda v. Republic, (1963) EA 294 Ali s/o Ramadhani v. Republic, (1968) n. 430 Ali Simba v. Republic, (1968) HCD n. 240 Alley Ali and Another v. Republic, (1973)LRT n. 43 Alli s/o Ramadhani v. Republic, (1968) HCD n. 430 Ally and Another v. Republic, (1972) HCD n. 115 Ally Kassum v. Republic, (1972) HCD n. 186 Ambard v. A.G. for Trinidad and Tobago, (1936) AC 332 Amiral Ismail v. Republic, I TLR (R) 370 Amiri Mohamed v. Republic, (1994) TLR 138 Anthony De Mello v. Republic, 1 TLR (R) 332 Asoka v. Republic, (1971) HCD n. 192 Asumani Mataka v. Republic, (1968) HCD n. 427 Atma Zahara Singh v. State (1954) Punj. 126, 34 Augustino Chanafi v. Republic, (1968) HCD n. 73 Bakililei v. Republic, (1971) HCD n. 303 Bassan and Wathioba v. Republic, (1961)EA 521 Bhagwanji Kakubhai v. Republic 1 TLR (R) 143, 5 Bhatt v. Republic, (1957) EA 332 Blassilaus Ndambalilo v. Republic, LRT n. 85 Butan Bijay Singh v. Emperor (AIR) (1933) Cal. 600 Biffo Mandirire v. Republic, (1960) EA 965 Bujukano v. Republic, (1971) HCD n. 446 Celestine Kaziba v. Republic, (1984) TLR 269

Chapter 29 31 5 5 4 4 30 27,29 7 15 17 16 15 7 5 11 7 7 15 5 4 34 17 34 6,30 17 34 17 15 17

274

Appendix III

Charles Izengo v. Republic, (1982) TLR 237 Charles Makanyaga Makobe v. Republic, (1967) HCD n. 271 Cheminingwa v. Republic, (1956) 23 EACA 451 Charles Mumba v. Republic, (1967) HCD n. 221 Chila v. Republic, (1967) EA 722 Chokwe v. Republic, (1969) EA 23 Christian Mbunda v. Republic, (1983) TLR 340 Clark v. Edinborough Tramway Co., (1919) S. C. (HL) 35 Commissioner of Customs v. S.K. Panachand, (1961)EA 303 Daudi Pete v. Republic, (1993) TLR 22 DPP v. Cpl Felician, (1973) EA 440 DPP v. Dirie and Another, (1988) TLR 252 DPP v. Abdi Nyenye, (1984) TLR 37 DPP v. Daudi Pete (1993)TLR 22, DPP v. Dirie (1988) TLR 252 DPP v. Paul Makujaa, (1992) TLR 2 DPP v. Philipo, (1971) HCD n. 295 Davda v. Republic, (1965) EA 201 Davies v. P.P., (1954) AC 378 Dracaku v. Republic, (1963) EA 363 Edward Kambuga v. Republic and Another v. Republic, (1990)TLR 84 Edward Kambuga v. Republic (1990) TLR 84, Edward Mwakamela v. Republic (1987)TLR 122 Edward Michael v. R., 1 TLR(R) 308 Edward Mponzi v. Republic, (1968) HCD n. 438 Elias v. Republic, (1972) HCD n. 111 Eliasi Seif v. Republic, (1984) TLR 244 Ezekia v. Republic, (1972) HCD n. 240 Ezera Kiabanamaizi v. Republic, (1962) EA 309 Fanuel s/o Kiula v. Republic, (1967) HCD n. 369 Francis s/o Kitana v. Republic, (1968) HCD n. 224 G.K. Karia and Another v. R., 16 EACA 116 Gakubu v. Republic, (1968)EA 395 Galos Hired v. R., (1944) AC 149 Gamaiyo v. Republic, (1968) HCD n. 228 Gatheru Njagwara v. R. 21 EACA 384 Gathuri Njuguna v. R., (1965) EA 583 Geofrey Buyombe v. Republic, (1968) HCD n. 373 Gopa s/o Gidamebanya and Others v. R., 20 EACA 318 George Mingwe v. Republic, (1989) TLR 10.

7 10 10 15 15 16 15 31 24 5 22 5 21 5 5 4 2 23 23 8 5 5 6 21 16 36 10 25 25 30 15 24 15 6 13 27 18 10 25 7,15

Case Index 275

George Komorowski v. Republic, 1 TLR (R) 322 Hagaigwa s/o Chacha and another v. Republic, (1972) HCD n. 201. Haining and Two Others v. Republic, (1972) HCD n. 53 Haining v. Republic, (1970) EA 620 Hamisi Masisi v. Republic, (1985) TLR 24 Hamisi Salum v. R., 18 EACA 217 Hamisi Juma v. Republic, (1968) HCD n. 469 Harnam Singh v. Republic, (1968) HCD n. 280 Haruna Ndoroga v. Republic, (1992) TLR 1; Hassan v. Republic (1971) HCD n. 274 Hassan Salum v. Republic, (1964) EA 126 Hasoni Abasi v. Republic (1968) HCD n. 220 Henry Ebrahim v. Republic, (1972) HCD n. 178 Haruna Ndoroga v. Republic (1992)TLR 1 Hopley v. Republic, 16 EACA 110 Hudson s/o Salum v. Republic, (1975) LRT n. 34 Iddi v. Republic, (1971) HCD n. 203 Idi s/o Waziri v. Republic, (1961) EA 146 Isango v. Republic, (1968) EA 140 Issa Mwandachi v. Republic, (1967) HCD n.414 Isau and Another v. Republic, (1971) HCD n. 53 JBM D’sa v. Republic, (1957) EA 627 Jackson Sumuni v. Republic, (1967) HCD n. 152 Jaffer v. Republic, (1972) HCD n. 92 James Cliford Brabin v. R., 14 EACA 80 Jeremiah Shemweta v. Republic, (1985) TLR 228 Jetha v. R., 13 EACA 107 Jonathan Mwaniki v. Republic, (1970) HCD n. 59 John Makindi v. Republic, (1961) EA 327 Jonas Nkize v. Republic, (1992 ) TLR 213 Joseph Mugola v. R., 20 EACA 171 Jonathan Mwaniki v. Republic, (1970) HCD n.59 John Mswani and Others v. Republic, (1970) HCD n. 54 John Okello v. Republic, (1972) HCD n. 235 John Raymond Vaz v. Republic, 1961) EA 320 John Sima v. Republic, (1981) TLR 51 Joseph Rogenah v. Republic, (1970) HCD n. 76 Josia Zakayo v. Republic, (1972) HCD n. 38 Jovin v. Republic, (1968) HCD n. 483 Juma Ali v. Republic, (1964) EA 641

31 6 7 22 5 23 12 10 10 13 27 6 15 15 7 5 27 15 15 18 21 15 5 24 7 4 3 24, 32 6 4 5 5 13 18 12 6 6 34 6

276

Appendix III

Juma Ramadhani v. Republic, (1968) HCD n. 147 Juma Abdallah v. Republic, (1967) HCD n. 396 Juma Ali v. Republic, (1964) EA 64 Juma Bakari v. Republic, (1985) TLR 175 Jumanne Juma v. Republic, (1968) HCD n. 304 Kamau v. Republic, (1965) EA 501 Kamundi v. Republic, (1973) EA 540 Kamwana Mutia v. R., (1958) EA 471 Karaya s/o Njonji v. R., 20 EACA 324 Karter Singh Baraj v. R., 20 EACA 143 Kasusura v. Kabuye, (1982) TLR 338 Kella and Another v. Republic, (1967)EA 809 Reminisele Elisawo v. Republic, (1967) HCD n. 75 Kessy v. Republic, (1970) HCD n. 89 Kateta v. Republic, (1972)EA 532 Kibangeny arp Kolil v. R., (1959) EA 92 Kamundi v. Republic, (1973) EA 346 Kasusura v. Kabuye, (1982 ) TLR Kinyua v. Republic, (1973) EA 201 Kingstone v. R., 32 Cr.App.R. 183 Kiondo Hamisi v. Republic, (1963) EA 209 Kinyori v. R., 23 EACA 180 Kuruki and Others v. Republic, 12 EACA 84 Kuyate v. Republic, (1967) EA 815 Laban Koti v. Republic (1962) EA 439 Ladislaus Lukasi v. Republic, (1968) HCD n. 112 Laurence s/o Maliki v. Republic, (1973) LRT n. 12 Lenderito s/o Laidosoli v. Republic, (1972) HCD n. 169 Leonard v. R., 10 EACA 113 Leonard Aniseth v. Republic, (1963) EA 206 Leo s/o Pigangoma v. Republic, (1967) HCD n. 131 Lerai v. R., 1 TLR(R) 366 Lerunyani v. Republic, (1968) EA 107 Lighton v. R., 18 EACA 309 Livington v. Uganda., (1972) EA 196 Longinus Komba v. Republic, (1973) LRT n. 39 Lulu v. Republic, (1968) HCD n. 330 Mabati bin Ruadiba v. R., 5 EACA 52 Madhub Chunder Mahindi v. Republic, (1967) HCD n. 220

20 12 6 12 27 23 4 3 25 31 7 34 6 15 21 23 4 7 4 6 15 25 33 32 3 15 21 19 31 30 20 15 15 29 6 17 34 32 31 31

Case Index 277

Maina Ngotho and Others v. Republic, (1960) EA 453 Makin v. A.G. for New South Wales, (1894) AC 57 Makuzi Zaidi v. Republic (1969) HCD n. 34 Mando v. Republic, (1965) EA 193 Manipal Iswerlal Purohit v. R., 9 EACA 58 Manyaki Nyasaganya and Others v. R., (1958) EA 495 Martin Nguma and Another v. R., (EACA Crim. Appeal No. 48 of 1976 – unreported) Marwa bin Siongo v. R., 1 TLR (R) 201 Masenu Butili v. Republic, (1967) HCD n. 81 Masiku v. Republic, (1967) HCD n. 454 Mathew Merere v. Republic, (1967) HCD n. 316 Matofali v. R. 20 EACA 232 Maulidi Yusufu v. Republic, (1967) HCD n. 70 Maumba v. Republic, (1966) EA 167 Mazuruku Hamisi v. Republic, (1997) TLR) 286 Metropolitan v. Lennon Mcharo Mdangaya v. R., 1 TLR(R) 385 Mhabi Mtungi v. Republic, 9 EALJ 170 Mibinga v. Uganda, (1965) EA 71 Miderege Bemeya v. Republic, (1968) HCD n. 74 Miller v. Minister of Pensions, (1947) 2 All ER 372 Misango s/o Semunda v. Republic, (1967) HCD n. 133 Mkwe s/o Lakimoja v. Republic, (1967) HCD n. 372 Mkwepu Hamisi v. R., 2 TLR (R) 108 Mohamed Salim v. Republic, (1968) HCD n. 151 Mohamed Senzagala v. Republic, (1994) TLR 122 Mohamed Taki v. Republic, (1961) EA 206 Mohamed Warsama v. R., 23 EACA 576 Morjaria v. Republic, (1972) EA 10 Moshi d/o Rajabu v. Republic, (1967) HCD n. 384 Moyovya bin Msuma v. R., 6 EACA128 Msafiri Kziba v. Republic, (1984) TLR 276) Muhumba Kamnya v. Republic, (1984 ) TLR 325 Muniko v. Republic, (1972) HCD n. 34 Munyaki Nyaganya v. R., (1958) EA 495 Murimi v. Republic, (1967) EA 542 Muriu s/o Wamai and Others v. Republic, 22 EACA 417 Mussa s/o Kandege v. Republic, (1968) HCD n. 198 Musa Kiumbe v. Republic, (1967) HCD n. 202

32 29 31 24 34 6 2 31 19 31 17 31 13 4 15 2 19 7 24 18 30 13 18 18 23 10 24 24 34 30 24 17 10 19 6 30 6 10 6

278

Appendix III

Myovya bin Msuma v. R., 6 EACA 128 Mwaitige v. Republic, (1961) EA 470 Mwakera v. Republic, (1972) EA 366 Mwita s/o Mwita v. Republic, (1971) HCD n. 122 Nanyalika v. Republic, (1971) HCD n. 314 Nathaniel Mputi v. Republic, (High Court, Dar es Salaam Crim. App. No. 182 of 1975 – unreported Nayinda s/o Batungwa v. R., (1959) EA 688 Nazir Ahmed v. Republic, (1962) EA 345 Nkya v. Republic Nuru s/o Ayub v. Republic, (1968) HCD n. 279 Nyakite s/o Oyugi v. R., (1959) EA 322 Ochau s/o Osigai v. R., 23 EACA 586 Odhengo v. Republic, 21 EACA 302 Okecha Olilia v. R., 7 EACA 74 Omari Ramadhani and Another v. R., 2 TLR(R) 118 Omari v. Republic, (1971) HCD n. 362 Omondi and Another v. Uganda., (1967) EA 802 Onasaa Mushi v. Republic, (1984) TLR 170 Onyango v. Uganda, (1967) EA 386 Pagi Msemakweli v. Republic, (1997) TLR 331 Palmer v. Reginam, (1971) 1 All ER 1077 Parashuram Shandasani v. R., (1945) AC 264 Paskale Stephano v. Republic, (1968) HCD n. 196 Pascal Kitigwa v. Republic, (1994) TLR 65 Patel v. Republic, (1968) EA 97 Paul v. R, (1971) HCD n. 135 Paulo Mwanjiti v. Republic, (1967) HCD n. 187 Peter Mtengo v. Republic, (1994) TLR 112 Peter s/o Mussa v.Republic, (1973)LRT n. 68 Pius Jasunga v. Republic, (1954) 21 EACA 331, 333 Republic v. Absolom Muhanga , (1957) EA 660 Republic v. Andrew Avarity, (1973) LRT n. 92 Republic v. Andrew Massy, (1984) TLR 346 R. v. Charles, (191960) EA 34 R. v. Clarke, (1949) 2 All ER 448 Republic v. Damas, (1961) EA 591 R. v. Faukner, (1877) 13 Cox 550 R. v. Gray, (1900) 2 QB 36

24 24 4 5 25 17 25 24 4 18 10 1 11 24 12 27 29 5 29 6 10 11 19 3 21 19 17 15 19 24 4 4 4 24 13 19 20 11

Case Index 279

Republic v. Forgabhai Jessa, (Uganda High Court Bulletin No. 54 of 1963) Republic v. Francis Kioko, (1971) HCD n. 431 R. v. Halliday, (1889) 61 L.T. 701 Republic v. Haruna Ibrahim, (1967) HCD n. 76 R. v. Hassan wa Saleh and Another, (1906–1908) EALR 105 Republic v. Ismael, (1968) EA 42 Republic v. Johnson, 46 Crim App. R. 55 Republic v. John Augustino, (1967) HCD n. 61 R. v. Kamau, (19 KLR 8 Republic v. Kassam, (1971) HCD n. 315 R. v. Leeson, 52 Crim. App. R. 185 R. v. Madhub Chunda, (1874) 21 W.R. Cr. 13, 10 (India) Republic v. Makuzi Zaidi and Another, (1969) HCD n. 249 Republic v. Magoma, (1971) HCD n. 44 Republic v. Mashauri, (1972) HCD n. 118 Republic v. Maulidi s/o Yusufu, (1967) HCD n. 70 Republic v. Milango s/o Misoji, (1967) HCD n. 96 R. v. Miller, (1954) WLR 138 Republic v. Mipaa, (1968) HCD n. 265 Republic v. Mirisho s/o Sefu, (1968) HCD n. 140 Republic v. Msungwe, (1968) EA 203 R. v. Mtambara bin Selemani, 1 TLR(R) 29 Republic v. Nanji Kara, (1967) HCD n. 74 Republic v. Nelson and Another, (1972) HCD n. 181 Republic v. Nichalaus s/o Bugomola, (1972) HCD n. 204 Republic v. Ntibilanti, (1972) HCD n.106 Republic v. Popat, (1961) EA 263 Republic v. Ramadhani Abdallah, (1973) LRT n. 49 Republic v. Raphael Songareti and Another, (1973) LRT n. 22 Republic v. Rev. Father John Rwechungura, (1972) HCD n. 168 Republic v. Rukondo Komano, (1968) HCD n. 48 Republic v. Sabdin Merali and Another, (Uganda High Court Crim. App. No. 220 of 1963 Republic v. Shabani, (191971) HCD n. 233 R. v. Thomas, (1949) 2 All ER 662 Republic v. Tilubanya Mwishaki., (1983 ) TLR 422 Republic v. Voisin, (1918) 1 KB 531 R. v. Wallace, (1958) EA 582

5 30 13 13 4 12 30 12 25 5 13 31 34 10 1 14 13 13 14 1 14 12 4 12 15 19 30 11 13 14 31 13 4 12 25 21

280

Appendix III

R. v. Waziri Musa, 2 TLR(R) 30 Republic v. Y.M. Osman, (Dar es Sallaam Crim Sessions Case No. 66 of 1966 Rajabu s/o Mbaruku v. Republic, (1968) HCD n. 110 Repbulic v. Ramadhani Abdallah (1973) LRT n. 49 Ramadhani Athumani v. Republic, (1968 ) HCD n. 110 Ramadhani Masoud v. Republic, (1974) LRT n. 31 Rashid Kiranga v. Republic, (1990) TLR 59 Re Dunn, (1906) Vict. RL 493 Regina v. Gray, (1900) 2 Q.B. 36 Reminisele Elisawo v. Republic, (1967) HCD n. 75 Rep. v. Paul Haule, (Dodoma High Court Crim. App. No. 14 of 1975 Rep. v. Philip Mendard, (Mtwara High Court Crim. Revision No. 26 of 1976) Riano Renalaimer and Another v. Republic, (1960) EA 960 Robert Bayo v. Republic, (1973) LRT n. 62 Royston v. Republic, 20 EACA 147 Rwenzola v. Republic, (1971) HCD n. 312 S.G. Patel and Others v. Republic, (1957) EA 881 S. (an infant) v. Manchester City Recorder, (1969) All ER 1230 Sadrudin Pirani v. Republic, (High Court Dar es Salaam Crim. App. No. 221 of 1975 – unreported) Said s/o Abdallah v. Republic, (1967) HCD n. 266 Saidi Ali v. Republic, (1973) LRT n. 66 Saidi Ally v. Republic, (1968) HCD n. 198 Salum Athumani v. Republic, (1991 )137 Salum Haruna v. Republic, (1968) HCD n. 37 Samson Bagozora v. Republic, (1972) HCD n. 180 Samson Kayora v. Republic, (1985) TLR 158 Santok Singh v. Republic, 15 EACA 97 Sarwano Mawanda v. Republic, (1962) EA 119 Sayed Hussein v. Republic, (1957) EA 844 Seif Bakari v. Republic, (1960) EA 338 Seliani v. Republic, (1968) HCD n. 243 Serwano Mawanda, (1962) EA 119 Sawava v. Uganda, (1966) EA 487 Shabani bin Donaldi v. Republic, (1973) LRT n. 60 Shabani Hamisi v. Republic, (1973) LRT n. 1 Sharma v. Republic, 20 EACA 310

4 34 15 11 15,16 22 7 11 11 6 2 1 32 17 29 15 34 4 23 1,13 15,19 15 10,15 27 20 4 7 17 30 3 18 17 15 34 13 2

Case Index 281

Sharmpal Singh v. Republic, (1960) EA 762 Silvester Maricel v. Republic, (1968) HCD n. 141 Simon Musoke v. R, (1959) EA 715 Sixtus Anini v. Republic, (1967) HCD n. 6 Stephen Seneviratne v. The King (AIR 1936) PC 290 Swami v. King Emperor (1939) 1 All ER 396 Thabo Meli v. Republic (1954) All ER 373 Tuwamoi v. Uganda, (1967) EA 84 Uganda v. Baguma, (1970) EA 169 Uganda v. Muherwa (1972) EA 466 Victor Juma Shabani v. Republic Volter Hopp v. Republic, (1967) HCD n. 91 Vincent Mapunda v. Republic, (1970) HCD n. 227 Vithlani v. Republic, (1969) EA 343 Wachira s/o Murage v. Republic, 23 EACA 562 Wambura Nyango v. Republic, (1990) TLR 38 William Sebugenyi v. Republic, (1959) EA 411 Willy John v. Republic, 23 EACA 509 Xavier v. Republic, (1967) HCD. N.302 Yesaya Gweseko v. Republic, (1970) HCD n. 160 Yesaya Gweseko v. Republic, (1970 ) HCD n. 15 Yonasani Egalu v. Republic, 9 EACA 65 Yusufu Gita v. Republic, (1959) EA 211 Yusuph Salim Mkali v. Republic, (1969) HCD n. 264 Zarina Akbarali v. Noshir Pirosesha, (1963) EA 239

24 11 31 20 34 25 14 25 7 10 1 12 15 7 4 8 3 6 17 7 15,16 5 6 15 25

S

p

Appendix IV

Alphabetical Index Term

Chapters

A ABDUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 ABSOLUTE DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 ABSENCE: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 of accused, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 of complainant, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 of witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 ABUSIVE LANGUAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 ACCIDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 ACCOMPLICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 ACCUSED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 ACQUITTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 ACTUS REUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 ADJOURNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 ADMISSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 ADMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 ADVOCATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 AFFRAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 AGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 ALLOCUTUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 APPROVED SCHOOL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 ARMED, going armed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 ARSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 ASSAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 AUTREFOIS ACQUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 AUTREFOIS CONVICT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

283

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B BAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 BANKER’S BOOKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 BODILY HARM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 BRAWLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 BREACH OF THE PEACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 BREAKING INTO A BUILDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 BURDEN OF PROOF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 BURGLARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 HOUSEBREAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 C CHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 CHILD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 23 CHOICE OF WITNESSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 CIRCUMSTANTIAL EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 CLAIM OF RIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 CO-ACCUSED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 COMPELLABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 COMPLAINANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 CONDITIONAL DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 CONFESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 CONSENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 CONSISTENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 CONTEMPT OF COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 CONTRADICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 CONVICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 COPY, of document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 CORPORAL PUNISHMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 CORROBORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30,31 CREDIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 CRIMINAL RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 CROSS-EXAMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 D DAMAGE, malicious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 DANGEROUS DRIVING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 DEATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Alphabetical Index 284

DECOY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 DEFENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 DEFILEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 DEMANDING WITH MENACES . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 DEMEANOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 DESTROYING EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 DIRECTOR OF PUBLIC PROSECUTIONS . . . . . . . . . . . . . . . . . . . .1 DISQUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 DOCUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 DRUGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,10 DUPLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 E ENTERING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 EXAMINATION OF WITNESSES . . . . . . . . . . . . . . . .6,31,32,35,36,37 EXECUTION OF DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 EXPERT EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 EXTORTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 F FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 FALSE PRETENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 FALSE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 FINAL SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 FINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 FORCE, use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 FORGERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 FRAUDULENT FALSE ACCOUNTING . . . . . . . . . . . . . . . . . . . .16,17 G GAZETTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 GOING ARMED IN PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 GRIEVOUS HARM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 GUILTY MIND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 H HANDWRITING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 HEARSAY EVIDENCDE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

285

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HOSTILE WITNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 HOUSEBREAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 HUSBAND AND WIFE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 I IDENTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 IGNORANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 IMPOSSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 INCONSISTENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 INDECENT ASSAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 INJURING ANIMALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 INSANITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10,5,4 INTENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 INVESTIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 J JOINDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 JUDICIAL NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 K KNOWLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10,13 L LEADING QUESTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 LOCUS IN QUO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 M MALICIOUS DAMAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 MENS REA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 MISDEMEANOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 MISTAKE OF FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 MOTIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 MUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 N NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 NEGLIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10,5

Alphabetical Index 286

NOLLE PROSEQUI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 NUMBER OF WITNESSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 O OATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 OBTAINING, goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 OBSCENE LANGUAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 OCCASIONING LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 OPEN COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 OPINION EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 OPPORTUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 ORAL EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,27 P PERJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 PERSONATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 PICK-POCKET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 PLEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 POLICE OFFICER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 POSSESSION, recent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 PRELIMINARY HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 PRIMA FACIE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 R RAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 RECEIVING STOLEN PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . .15 RECENT POSSESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 RECKLESS DRIVING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 RE-EXAMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,37 REFRESHING MEMORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 RELEVANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 RELIABILITY OF WITNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 REMAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 ROGUES AND VAGABONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 S SCANDALOUS QUESTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 SCENE OF CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 SECONDARY EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 SELF-DEFENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

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SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 SETTING FIRE TO CROPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 SINGLE WITNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 SPOUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 STEALING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 SUBORNATION OF PERJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 SUBSTITUTED CONVICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 SUMMONSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 SURETIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 T TERRITORIAL JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 TRANSFER OF CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 TRESPASS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 U UNLAWFUL WOUNDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 UNNATURAL OFFENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 UNSWORN STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 UTTERING FALSE DOCUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .16 V VAGABOND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 VISITS TO LOCUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 W WARRANT OF ARREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 WEIGHT OF EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 WITNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,23,28,29,32 WOUNDING See unlawful wounding . . . . . . . . . . . . . . . . . . . . . . . . . .14 YOUNG PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

A Handbook for Public Prosecutors Third Edition This is the third edition of A Handbook for Public Prosecutors. It takes into account multiple changes in the Tanzania law since publication of the first and second editions in 1978 and 1982 respectively, and the new Criminal Procedure Act of 1985.

Third Edition

A Handbook for Public Prosecutors is written primarily for Public Prosecutors. However, it is sufficiently comprehensive to be useful to those who are fresh on the Bench or the Bar, and to investigators of crime, as well as to those who are required to do examinations in Criminal Law, Criminal Procedure and the Law of Evidence in order to advance in their careers. While it is based on the Tanzania Penal Act, Criminal Procedure Act, the Evidence Act and other statutes, readers in other East African countries will have no difficulty in finding relevant and equivalent provisions of applicable legislation which are invariably identical to those in their countries. This book provides guidance to public prosecutors and others on basic principles of Criminal Law, Criminal Procedure, and the Law of Evidence and the art of prosecuting cases.

Mkuki na Nyota Publishers P. O. Box 4246 Dar es Salaam Tanzania www.mkukinanyota.com

B.D. Chipeta

B.D. Chipeta

ISBN: 978-9987-08-007-6

3 rd Edition

Hon. Buxton David Chipeta, was a Judge of the High Court of Tanzania for 26 years (1976 ­– 2002) before retiring. Prior to that, Hon. Chipeta served in various capacities in the judicial system in Tanzania in different districts. He also served on different important commissions of inquiry and on a number of Boards of Directors. He is author of Handbook for Public Prosecutors, 1979, A Magistrate’s Manual, 1988, Civil Procedure in Tanzania – A Student’s Manual, 2004 and Administrative Law in Tanzania – Cases and Materials. Justice Chipeta is currently practising as a legal consultant. He is an Advocate of the High Court of Tanzania, and parttime Lecturer at Mzumbe University, Tumaini University and University of Dar es Salaam and the Law School.

Mkuki na Nyota Publishers